The Commonwealth Government has released a second version of its draft legislation dealing with religious discrimination issues, for further comment before it is formally introduced into the Federal Parliament in the New Year. There are a number of important changes from the previous drafts which in my view make it a much better package of amendments. But there are areas for improvement.

Background

Regular readers of this blog will be familiar with the background to these proposals, but for those who are not, I discussed the genesis of the current proposed reforms, and summarised the first Exposure Draft of the Religious Discrimination Bill (“RDB1”), in this post, and this previous post , and in somewhat more detail in this submission to the Government.

In broad terms, while the RDB1 proposed draft was a worthwhile exercise, there were a number of concerns that I (and others) had. The main ones included:

• the definition of “religious activity” excluding broadly “unlawful” actions, which would have allowed local Councils to prohibit activities which would otherwise have been allowed;
• the scope of the “Folau” clause in cl 8(3) which seemed on its face to authorise discrimination in some cases if behaving otherwise was too expensive;
• exclusion of “commercial” activities from the general protection provided for religious bodies to act in accordance with their beliefs;
• provisions removing the protection to be provided to “statements of belief” under RDB1 cl 41 (the “Porteous” clause), where the speech was “vilifying”, when that term was not clearly defined.

A number of these issues are picked up and dealt with well in the new draft Religious Discrimination Bill (which I will call “RDB2”; note that the numbering of most clauses now differs due to the addition of an additional clause early on in the draft.)

Definition of “religious activity”

There is a new qualification to the definition of “religious activity” in cl 5 of RDB2. While the definition in cl 5(1) still restricts this to “lawful religious activity”, new cl 5(2) says:

(2) For the purposes of paragraphs (b) and (d) of the definition of religious belief or activity in subsection (1), an activity is not unlawful merely because a local by-law prohibits the activity 

There is also a definition of “local by-law” as “a law made by a body established for the purposes of local government by or under a law of a State or Territory”. This means that the major concern with this wording (that Federal protections could be undermined by an idiosyncratic local council) has been dealt with. In the “Explanatory Notes” to the new Bill (“ENRDB2”), where the Government provides its (non-binding, but illuminating) view on the purposes of the legislation, we read:

This will ensure that persons are still protected from discrimination under this Bill even if their religious activity contravenes council by-laws. This may include, for example, religious activities, such as street preaching, which are made unlawful by the operation of local government regulations. This subclause recognises that a person’s ability to make a complaint of discrimination under this Bill should not be limited by the operation of delegated legislation which does not have the same levels of oversight and scrutiny as legislation made by the Commonwealth, or a state and territory government. 

ENRDB2, para [83]

While the result is not perfect (it may still leave the possibility of a radical State or Territory government outlawing some religious activities), it is a distinct improvement on the former draft.

The “Folau clause”

Clause 8(3) of RDB1 (which actually still retains this numbering in RDB2, new clause 9 being the one that disturbs the former numbering) has been dubbed the “Folau clause” because it deals with a situation raised by the case of the footballer Israel Folau. I have commented on this case previously here and here. What I have not yet had time to comment on, is the fact, no doubt known to most people who bother to read a “law and religion” blog, that Mr Folau’s claim for unlawful termination of his major rugby contract, based on comments he made about the Bible’s view of certain sinful behaviour, was formally settled on 4 December before going to a contested hearing. The settlement statement involved mutual apologies (of the slightly unsatisfactory “sorry if there was any harm” sort) but the result was that there is still a fair degree of uncertainty about the limits of an employer’s right to penalise an employee for religiously-based comments made outside working hours on social media.

This makes it all the more important that the new legislation should provide a fair balance of the various interests here, and some clarity. As noted in my previous comments, the way the clause operates is that it provides a specific regime for determining whether an “employer conduct rule” is “reasonable” for the purposes of determining if such a rule amounts to “indirect discrimination” on the grounds of religious belief or activity under cl 8.

It is important to see it in this way, and to realise that it is not intended to operate as a “stand alone” principle that discrimination is allowed whenever the conditions of cl 8(3) are met. In fact, cl 8(3), as the Government explains its intention in ENRDB2, is designed to make it harder, not easier, for large employers to get away with draconian conduct codes:

subclause 8(3) imposes additional requirements on very large businesses, recognising the significant role that these businesses play in setting standards of workplace culture across the country. In so doing, the provision will assist in building a corporate culture that supports religious diversity across the Australian community at large. (emphasis added)

ENRDB2, para [144]

How does this work? Where any employer seeks to impose a “code of conduct” that applies to its workers outside “the course of employment”, which would restrict that employee’s religious freedom to speak about matters connected with their faith, they “disadvantage” that employee in comparison to non-religious employees. This will amount to indirect discrimination under cl 8(1) unless it is found to be “reasonable” under cl 8(2) or other parts of cl 8. A number of factors will have to be weighed up to see if this is a “proportionate” response to the perceived problem. Those factors alone, regardless of the size of the business or the financial detriment, might lead to the view that the condition is not reasonable.

However, if the employer is a “relevant employer” (a private firm with a turnover of over $50 million) then it has a higher bar to cross to prove that the condition is reasonable. Their rule will be deemed not to be reasonable unless they can show that compliance “is necessary to avoid unjustifiable financial hardship”. The Government explanation notes:

Subclause 8(3) requires consideration of whether compliance with the rule is necessary to avoid unjustifiable financial hardship to the employer. Other forms of hardship to the employer are not relevant for the purposes of this provision. (emphasis added)

ENRDB2, para [140].

Hence, it seems, merely showing some “loss of face” in the marketplace will not be adequate, unless there is concrete evidence of actual financial loss (“clear evidence that any threatened financial hardship is likely to manifest, rather than the mere possibility of financial hardship or vague threats of financial hardship”- ENRDB2 para [142]) .

 While this explanation is helpful, I am still left with some concerns. To take the Folau case as an example, there were suggestions of actual threats from a major sponsor to withdraw significant sponsorship unless Mr Folau was dismissed. Should such a threat- direct, quantifiable- be a good reason to allow dismissal? Suppose the facts are altered: a high profile entertainer who is a Muslim is working for a film company which relies heavily on a distribution deal with a large Chinese government enterprise, and he comes out, for reasons related to his religious convictions, criticising the Chinese treatment of Uighur Muslims. Is it right that the film company be able to dismiss him for his religious views because it will cost them a lot of money if they don’t?

Still, the notes on the Bill at least provide some clarification on how cl 8(3) is meant to operate, even if some concerns remain at the edges, and it seems to be a helpful provision for many cases.

Definition of “vilification”

One very positive change is the way that the new Bill deals with the definition of “vilification”. Clause 8(3) in RDB1 was subject to an exception that a “statement of belief” that would otherwise be protected under the “Folau clause”, would lose such protection if it amounted to “vilifying” speech.

In RDB2 there is a similar exception, now in cl 8(5):

(5) Subsections (3) and (4) do not apply in relation to a statement of belief: (a) that is malicious; or (b) that would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons…  (emphasis added)

RDB2 cl 8(5)

The very good addition to the new Bill is a clear definition of “vilify”, now found in RDB2 cl 5(1):

vilify, in relation to a person or group of persons, means incite hatred or violence towards the person or group. 

RDB2 cl 5(1)

This is much clearer than the previous draft, where “incite hatred or violence” was a separate concept from “vilify” and left that word dangerously ambiguous. The new and clearer meaning of “vilify” also applies in another important part of RDB2, new cl 42(2)(b) (the “Porteous clause”), narrowing down the circumstances where that clause will not operate.

While there can still be a large area of debate as to the type of speech that should or should not be protected, at least by using this clearer definition of “vilify” the new Bill avoids targeting speech which will merely “upset” or “offend”. All of the words used in cl 8(5) now can be seen to be very much at the harshest end of the spectrum of speech.

New provision: “qualifying body conduct rule”

Interestingly, RDB2 now adds a variation on the “Folau clause”, which I am strongly tempted to call the “Ngole clause”! This comes in the form of cl 8(4), which applies the regime governing “employer conduct rules”, to bodies whose job it is to issue and review professional qualifications. Two important definitions are now in cl 5(1):

qualifying body means an authority or body that is empowered to confer, renew, extend, revoke, vary or withdraw an authorisation or qualification that is needed for, or facilitates, the practice of a profession, the carrying on of a trade or the engaging in of an occupation. 

qualifying body conduct rule means a condition, requirement or practice: 

(a) that is imposed, or proposed to be imposed, by a qualifying body on persons seeking or holding an authorisation or qualification from the qualifying body; and 

(b) that relates to standards of behaviour of those persons. 

RDB2 cl 5(1)

New clause 8(4) is then designed to deal with a situation where a person may have been denied qualification or authorisation for a profession or occupation because of a statement that reflects their religious belief.

8(4) For the purposes of paragraph (1)(c), a qualifying body conduct rule that would have the effect of restricting or preventing a person from making a statement of belief other than in the course of the person practising in the relevant profession, carrying on the relevant trade or engaging in the relevant occupation is not reasonable unless compliance with the rule by the person is an essential requirement of the profession, trade or occupation. 

RDB2 cl 8(4)

I have dubbed this the “Ngole clause” because it seems to relate to circumstances similar to that of Mr Felix Ngole, a UK social work student who was removed from his course because of comments he made in his own time about same sex marriage. Mr Ngole eventually won his case in the English Court of Appeal and was ordered to be reinstated- my comment on the proceedings is here. The effect will be that a very high bar will have to be met before a person can be denied registration or qualification based on statements of religious belief made in their own time; it will need to be shown that a rule of this sort is “essential” to proper conduct of the profession.

Exclusion of religious bodies engaged in “commercial activities”

One of the best features of RDB1 was the recognition in former cl 10 that rules against religious discrimination at large, need to be qualified by the recognition that religious bodies need to be allowed to make decisions in accordance with their own religious beliefs, without those decisions being regarded as “discriminatory”.

This feature is continued in RDB2, in new clause 11. The clause has been redrafted and improved to take account of a number of previous concerns. In addition, the situation of religious hospitals, aged-care providers, and camp operators has now been dealt with in other areas.

Helpfully, the test for how to determine if a religious body is genuinely acting in accordance with its beliefs has been refined and “bifurcated”. A body can now establish that it is justified in acting on a belief if it is “engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion” (cl 11(1)), or by “engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body” (cl 11(3)). 

The benefit of this new way of expressing the test for “religious” content is that it does not rely heavily on a secular judge coming to a view on the content of religious doctrine. (For a conference paper dealing with this issue, see this previous post.) The first option tells a court to consider the views of other members of the same religion- and the Government comments make it clear that this is not designed to pit “liberals” against “conservatives”, but to allow evidence from people within the same religious tradition- see ENRDB2 para [239]. The second option also requires consideration of something of a broad consensus of opinion within a religious group. (The language of “susceptibilities” is somewhat patronising, but the term has been used in other State and Commonwealth laws and has become something of a technical one, so its use here seems appropriate.)

Other improvements reflected in RDB2 cl 11 include:

• Clauses 11(2) and 11(4) clarify that it is an acceptable religious view to “prefer” to employ staff from one’s own religious tradition, even if all employment decisions cannot meet this aim, because skills may be needed that are not reflected in the particular community.
• The definition of “religious body” now extends to a “registered public benevolent institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion”, regardless of whether those organisations operate “commercially”. This will include a number of major charitable organisations who need to support their ongoing operations by charging commercial fees.

However, cl 11(5)(c) still excludes from the definition of “religious body”, one which “engages solely or primarily in commercial activities”.  Hence, unless a body enjoys PBI status or is a religious school, there will be a question about the application of the provision to a religious body that needs to meet costs in the marketplace to some extent. The lines are not sharp here: the Government has a detailed analysis of its intentions in ENRBD2. For example, at para [226] it notes:

The mere fact that a body undertakes some level of ancillary or incidental commercial activity, for example, selling goods to raise funds or renting out certain facilities, would not exclude it from this definition unless those activities were the sole or primary activity of that body.

ENRDB2 para [226]

But the other end of the spectrum (and hence not protected by cl 11) seems to be “a halal butcher or a Christian-run bakery” (para [225]). This will lead to some degree of uncertainty.

In RDB1 there was no special arrangement made for the most obvious examples of religious groups which could be said to operate on a “commercial” basis, religious hospitals, aged-care facilities and religious accommodation providers. Rather than being dealt with under cl 11 (they are explicitly said not to be “religious bodies” under cl 11(5)), these organisations now have their own specific provisions in cl 32, sub-clauses (8)-(11). In effect the protection these organisations enjoy is limited to protection in making employment decisions (in which case similar principles as set out in cl 11 will apply, including the ability to “preference” employees from a specific religious tradition). But they will not be allowed to discriminate in the area of deciding which patients to serve or persons to accommodate. In general I get the impression that most religious hospitals and aged-care centres do not tend to choose patients on the basis of their religion. I am not so clear as to whether this might not impact a group that, say, wanted to run a tertiary residential college for Jewish students.

In the area of accommodation, however, there is an expansion of an exemption which was provided in RDB1, in new RDB2 cl 33(2)-(5), to allow those who run “religious camps and conference sites” to select participants on the basis of their religion. While at first glance this might be called a “Cobaw clause” (with reference to a Victorian decision involving a Christian camp site), in fact the provision is not that, because the Cobaw decision concerned sexual orientation discrimination, not religious discrimination. This legislation itself will not impact the interaction between religious beliefs and sexual discrimination laws- review of that matter is an issue on the agenda of the Australian Law Reform Commission for 2020.

Statements of belief

While there is more to be noted in the new Bill, the final thing I will mention on this occasion is the provision of a revised “Porteous clause”, in RDB2 cl 42. The clause seems particularly designed to avoid a repetition of the sort of litigation which was undertaken against a Roman Catholic archbishop for circulating a document explaining the Roman Catholic view of marriage, to students at Roman Catholic schools. The effect of the clause is to say that “statements of belief” are not, of their own force, to be regarded as unlawful discrimination under Commonwealth, State and Territory law.

The clause (formerly RDB1 cl 41) is on its face virtually unchanged from the former version, but there are two changes “behind the scenes” which will impact its interpretation. One is the change to the definition of “statement of belief”, which in cl 5(1) now refers (for present purposes) to a statement that:

(i) is of a religious belief held by a person (the first person); and 

(ii) is made, in good faith, by written or spoken words by the first person; and 

(iii) is of a belief that a person of the same religion as the first person could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion…

This picks up the technique noted above in clause 11, where the content of a religious doctrine is determined by what a co-religionist would reasonably consider to be in accordance with the religion. It is not perfect, but does at least shift the locus of authority away from the secular court. There is an important clarification of this point in the ENRDB2 at [237]-[239] which is worth quoting in full (these comments are made about the provisions in cl 11, but are equally applicable to the definition of “statement of belief”):

[237] This provision imports an objective reasonableness test. This will ensure that courts are not required to determine whether particular conduct is in accordance with the doctrines, tenets, beliefs or teachings of a particular religion, but rather whether members of that same religion would reasonably consider that to be so. This recognises as a matter of general principle that courts are not well-placed to make decisions on matters of religious doctrine, and whether conduct conforms with such doctrine, and will avoid the need for courts to do so. (emphasis added)

[238] The requirement for an assessment as to whether a person could reasonably consider whether conduct is in accordance with the doctrines, tenets, beliefs or teachings of a religion recognises that religious bodies implement the teachings of their faith in a variety of ways and should have the autonomy to do so. The requirement for reasonableness means that strict or technical interpretations as to the requirements of a doctrine or undertaking is not required; religious bodies in this respect have a ‘margin of appreciation’ about how they conduct their activities in accordance with their faith. 

[239] A person of the same religion for the purposes of this test is intended to be a person of the same religion, or relevant religious denomination, sect, stream or tradition, as the religious body. For example, the relevant reasonable person in relation to conduct engaged in by a Methodist church would be a Methodist person, rather than a Catholic person, or a Christian generally. In addition, the relevant reasonable person in relation to conduct engaged in by an Orthodox Jewish religious body would be a reasonable Orthodox Jew who adhered to that religious stream.

ENRDB2 paras [237]-[239]

The effect of cl 42 should not be over-stated, however. It will indeed over-ride the very broad terms of s 17 of the Tasmanian Anti-Discrimination Act 1998 (which prohibits the causing of “offence”.) But other than that its protection of religious speech from being regarded as “discrimination” may not be very broad. The word “discrimination” is probably not broad enough to capture “vilification” provisions in other State and Territory law which forbid various types of incitement to hate or violence, or other “emotional” harms. Indeed, cl 42(2), noted already, itself says that the protection of cl 42(1) does not apply to speech which “would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons”. Still, as noted above, at least in this version of the Bill, we know what “vilify” means.

The Notes point out that while a statement of itself will not be regarded as discrimination, behaviour associated with the statement will not be protected. They allude to litigation which is current in the UK concerning a doctor who was dismissed for expressing his views based on the Bible’s teaching that there are only two genders, and that people cannot change between them- see my comment on that case here. The Notes say that on its own this statement cannot be regarded as discriminatory; but they then go on to speculate at para [549] that a refusal to provide medical services to a transgender person on the basis of that belief might be held to be discriminatory, as amounting to an action more than just a statement. (In my view this is not at all clear- the doctor may simply say that he cannot provide the relevant medical services as he is not qualified to provide the services that are medically indicated for the patient. But the situation is too complex to resolve in a brief aside!)

Other matters

Let me conclude this too lengthy note by mentioning areas where the new Bill makes changes which may warrant further discussion in the future.

• There is a revision of the “health practitioner” provisions, now contained in clause 8(6)-(7); my previous paper on these issues will need to be revised to take these changes into account. (The new prohibition on qualifying bodies penalising persons for statements of belief, in cl 8(4), will also impact doctors and other health professionals.)
• There is a new clause, cl 9, which explicitly provides that the prohibitions on discrimination also apply to discrimination against persons “associated with” individuals who are religious. The Notes at para [195] offer the example of someone who treats a person badly because their spouse is a Muslim. It may be of interest to note that this clause would apply to corporate “persons” as well, so that discriminating against a company because of the religion of its senior manager may be unlawful.
• There will now be an “objects” clause inserted into all Commonwealth discrimination legislation, to make it clear that all human rights have “equal status in international law” (inserted here in cl 3(2).)

Overall evaluation

The following general points may be made in conclusion.

1. Concerns over RDB1 were expressed that former clause 10 should extend to all bodies which are conducted in accordance with, or in furtherance of, the doctrines, tenets and beliefs of a religion, regardless of whether they were involved in commercial activities or not. This concern has been met in part by extending the class of charities who enjoy the protection of new cl 11 to “Public Benevolent Institutions” (though this does not cover all religious groups by any means.) But more protections are also provided to hospitals, aged-care providers, accommodation providers and those running religious camps.
2. There were concerns that RDB1 did not properly recognise the rights of religious groups and corporate entities. Under RDB2 it seems clear that these bodies do receive some protections – see eg ENRDB2 at para [66]. New clause 9 will also assist here.
3. The new Bill makes it clear the religious organisations may “preference” staff who share their ethos, and in some cases preference those to whom their services are provided, if there is a good faith religious reason for doing so.
4. While the “statement of belief” clause in cl 42 still does not generally apply to State and Territory “vilification” laws, the word “vilify” has been helpfully defined in a clearly limited way, both for purposes of cl 42 and in its operation in cl 8.
5. There are still unsatisfactory elements with the “Folau clause” in cl 8(3), but at least there has been an extension of the general principle to prohibit “qualifying bodies” from penalising professionals and others who make religiously-based comments outside their work situation.
6. The definition of “religious activity” still allows State and Territory governments to undermine Commonwealth religious freedom protections by criminalising legitimate religious activity. But the removal of Council by-laws from the scope of “unlawful” is a good step.
7. Situations in which religious freedom may be over-ridden still go beyond the limited exemptions allowed under international law (eg under art 18(3) of the ICCPR). But it is a positive step that recognising the content of religious doctrine will not require that a secular court make a decision based on its version of what is “reasonable”.

The Government has indicated that it will only be receiving comments on this second draft until Friday, 31 January 2020. I encourage those interested to make submissions.