Mark Fowler, Director (Feb 2013)
Report on Human Rights and Antidiscrimination Bill 2012 released
Many of you will have been following the highly public debate on the federal government’s Human Rights and Anti-Discrimination Bill 2012. Yesterday, the Senate Legal and Constitutional Affairs Legislation Committee presented its report on the Bill.
Like many committee reports on not-for-profit reforms in recent months, the Committee was split on the issues, with Coalition Senators tendering a Dissenting Report. A notable feature of the Labor and Greens Senators’ Report is the recommendation to remove exemptions for religious organisations in relation to providing services to the community where discrimination would otherwise be unlawful.
You can read the Report for yourself here. Below, we set out some elements of the Report of interest to religious organisations.
Expansion of the protected attributes
Under the current Commonwealth laws, it is unlawful in a range of circumstances to discriminate against a person on the basis of a ‘protected attribute’. ‘Protected attributes’ include:
- Pregnancy, potential pregnancy and breastfeeding
- Marital status
- Family responsibilities
- Race, colour, descent, national or ethnic origin
The draft Bill proposes to add sexual orientation, gender identity, political opinion, social origin and religion to this list, although political opinion, social origin and religion would only be ‘protected attributes’ in a work-related context. The Senate Committee recommended that being a victim of domestic violence, irrelevant criminal record, and intersex status be added to these.
It also recommended that ‘gender identity’ be expanded to the terms proposed by Tasmania’s Anti-Discrimination Amendment Bill 2012: ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism.’
Provision of services by religious organisations
The majority made the following recommendation concerning religious institutions that provide services to the community:
“The committee is of the view that no organisation should enjoy a blanket exception from anti-discrimination law when they are involved in service delivery to the general community…particularly in cases where the service provision is Commonwealth-funded…The committee recommends that the Draft Bill be amended to remove exceptions allowing religious organisations to discriminate against individuals inthe provision of services, where that discrimination would otherwise be unlawful.”
The Committee recommended using the Tasmanian Act as a model. Its exceptions for religious organisations extend only to the protected grounds of ‘religious belief or affiliation’ and ‘religious activity’, and not to other attributes such as sexual orientation, gender identity or intersex status. The committee noted that ‘reasonable and proportionate actions taken in line with religious freedoms are [also] likely to be considered ‘justifiable conduct’ under the general exception in clause 23…’ Importantly, any exemptions included in an Act arising from the Bill are required to be reviewed afresh after three years.
The recommendation, depending upon its ultimate statutory expression, may have significant implications for religious organisations that are service providers in the educational, health, social, community, commercial and other sectors within Australia. If the recommendation is adopted by Parliament it is thought that the definition of a ‘service’ will be critical in determining the extent of the impact of removing the exemption.
Religious organisations to provide public document outlining intention
The majority also recommended that religious institutions who provide services to the public and who intend to rely upon the exception should be required to:
- make publicly available a document outlining their intention to utilise the exception;
- provide a copy of that document to any prospective employees; and
- provide access to that document, free of charge, to any other users of their service or member of the public who requests it.
Reversal of onus
The Committee considered that the proposed shifting of the onus of proof upon the lodgement of a claim for unlawful discrimination was appropriate. That reversal requires that once a complainant has established a prima facie case, religious institutions should prove that the reason they engage in the conduct was not unlawful.
Offense and freedom of speech
The Committee noted that the government’s intention had never been to make offensive conduct unlawful, but that the draft Bill was not clear on this point. It recommended that 19(2)(b), which includes ‘conduct which offends, insults or intimidates’ in ‘discrimination’, should be deleted entirely.
The Committee recommended that discrimination against volunteers be moved from a work context to ‘areas of public life’ in the draft Bill. The effect of this is that the seven attributes which are protected by the draft Bill only in work-related contexts will not apply in the case of volunteers.
We note that this is a draft Bill only, and the government has already proposed a number of other changes to the Bill. Religious institutions should continue to keep a close eye on the unfolding developments and to give consideration to how these may affect their operations. Proper analysis of the precise provisions will be required as these come to light. If you are concerned about what a change in the law might mean for your organisation, feel free to call us on (07) 3837 3600.
DISCLAIMER: This update contains general information only. It is not all inclusive and should not be considered legal advice. You should always obtain legal advice for your specific circumstances before relying on general information.