The Morrison Government has sought to create a cultural point of difference with the Opposition on religious freedoms, having introduced its Religious Discrimination Bill 2021 and associated legislation into Parliament last week.

The legislation seeks to bring protections for religious belief and activity to the same standard as those already afforded under federal anti-discrimination law in relation to age, sex, sexual orientation, gender identity and a raft of other areas.

As the Government did not have the numbers in the Senate to pass the legislation, it will now be subject to the Joint Committee on Human Rights for inquiry.

Referred to as ‘the religious discrimination legislative package’, it includes:

• The Religious Discrimination Bill 2021;
• The Religious Discrimination (Consequential Amendments) Bill 2021;
• The Human Rights Legislation Amendment Bill 2021.

Attorney-General Michaelia Cash said the Bill ensures that people can’t be prosecuted for moderately expressing a reasonable opinion.

“A key aspect of protecting religious belief and activity is protecting the ability of individuals to explain, to discuss, and to share their beliefs,” she said.

“But what the bill also does is this, it draws a very clear line against harassment, against vilification, against intimidation and against threatening behaviour.

“So, if you make a statement, and it’s malicious, it’s not made in good faith, that is not a statement of genuine belief.

The Attorney-General said it is a “fair and balanced bill”, striking the right balance between religious discrimination and protecting human rights.

Committee Chair, Dr Anne Webster MP said the legislation would remedy a significant omission from the federal anti-discrimination framework.

“The bill will ensure Australians are protected from unlawful discrimination on the basis of religious belief or activity – just as they are protected from unlawful discrimination on the basis of age, sex, race and disability,” she said.

The committee is seeking submissions in relation to this legislative package, with a due date of 21 December 2021. The committee will seek further information from selected participants at public hearings to be held at Parliament House on 21 December 2021 and 13 and 14 January 2022.

The committee is due to report to both Houses of the Parliament by 4 February 2022.

Implications for employers

The Bill contains several key workplace considerations, including making it unlawful for employers to discriminate on the basis of religious belief or activity when determining who should be offered employment and terms or conditions on which employment is offered.

It also prohibits registered organisations under the Fair Work (Registered Organisations) Act 2009, such as unions and employer associations, from discriminating on the basis of religious belief or activity in matters relating to membership applications, the terms or conditions of membership and members’ access to benefits provided by the organisation.

Exemptions from discrimination are included for conduct of religious bodies acting in good faith.

Statements of belief, whether religious or not, do not in and of themselves constitute contraventions of discrimination law, and both direct and indirect discrimination against individuals on the basis of their religious belief are prohibited.

The Bill also introduces prohibitions on religious discrimination and the proposed or actual imposition of conditions, requirements or practices that are likely to restrict or prevent statements of belief, by bodies that are empowered to authorise or qualify individuals for professions, trades or occupations.

The primary exemptions to the prohibitions on religious discrimination in the Bill are for if the relevant belief or activity could reasonably be concluded to be promoting or encouraging serious offences punishable by at least 2 years imprisonment; conferring charitable benefits; conduct directly complying with laws;

An exemption exists to the prohibitions on religious discrimination for conduct complying with court or tribunal orders, determinations and industrial instruments, such as fair work instruments and awards.