Religious discrimination and religious freedom Freedom for Faith Conference Sydney 2019 Nicholas Aroney

Religious freedom review recommendation 15 Religious Discrimination Act The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.

Religious freedom review recommendation 15 Religious Discrimination Act The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities. Right to religious freedom Liberty to act on the basis of one’s own religion May require discrimination May interfere with religious freedom

Religious freedom review religious freedom and religious discrimination Religious Discrimination Act The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities. Right to religious freedom Liberty to act on the basis of one’s own religion May require discrimination May interfere with religious freedom Prohibition on religious discrimination Duty not to act on the basis of someone else’s religion May protect religious freedom May contravene religious freedom

Religious discrimination bill four components 1. Protected attribute ‘religious belief or activity’ 2. Types of discrimination ‘direct’ ‘indirect’ 3. Protected areas ‘employment’ ‘education’ ‘goods and services’, etc 4. Exceptions and exemptions

Religious discrimination bill religious ethos 1. Protected attribute – s 5 ‘religious belief or activity’ 2. Types of discrimination – ss 7, 8 ‘direct’ ‘indirect’ 3. Protected areas – ss 12-26 ‘employment’ ‘education’ ‘goods and services’, etc 4. Exceptions and exemptions – ss 27-40 SECTION 10 A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted. What is a ‘religious body’? How is religious ‘doctrine’ related to ‘employment decisions? Who decides what ‘may reasonably be regarded’?

Religious discrimination bill religious statements – SECTION 8 (3) For the purposes of paragraph (1)(c), an employer conduct rule that: (a) is imposed, or proposed to be imposed, by a relevant employer; and (b) would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer; is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer. (4) Subsection (3) does not apply in relation to a statement of belief: (a) that is malicious; or (b) that would, or is likely to, harass, vilify or incite hatred or violence against another person or group of persons; or (c) that is covered by paragraph 27(1)(b). Note: Paragraph 27(1)(b) covers expressions of religious belief that a reasonable person, having regard to all the circumstances, would conclude counsel, promote, encourage or urge conduct that would constitute a serious offence.

Religious discrimination bill religious ethos Religious body an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; a registered charity conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a registered charity that engages solely or primarily in commercial activities); any other body conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities). Religious doctrine and employment policies Doctrine: theological propositions, ecclesiastical principles, codes of conduct Employment: appointment criteria, employment duties Who decides what is reasonable? School – discretion Commission – conciliation Court – determination

Religious discrimination bill religious statements Relevant employer at least $50 million turnover not a government employer or public body Statement of belief A statement of a religious belief held by a person that is made in good faith and which may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion. Which religion? Whose religious belief? Who decides? Unjustifiable financial hardship Third party sponsors? Social media boycotts? Vilification and hate speech Article 20.2 of the International Covenant on Civil and Political Rights advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence UN High Commissioner for Human Rights – Expert Workshop (Rabat, Morocco)