What impact will the proposed religious discrimination legislation have on health and aged care providers?

Health and community - Law alert

The proposed religious discrimination legislation (if passed) may have a significant impact upon health and aged care providers in terms of employment and the provision of services and accommodation.

Whilst laws protecting against discrimination are prima facie beneficial to a harmonious Australian community, one of the main issues with the draft legislation is the uncertainty over what constitutes a ‘religious belief’ and how radical (and therefore disruptive) that belief could be.

Relevance to health and aged care?

The Bill (if and when passed) may have a wide-ranging effect on health and aged care providers including

• when forming partnerships;
• when employing people, managing people and/or terminating the employment of people;
• communications made by the organisation and/or staff within and outside their terms of employment;
• enabling healthcare practitioners to conscientiously object to engaging certain activities; and
• providing accommodation and services to people.

The Bill prohibits direct and indirect discrimination on the basis of religious belief or activity in the following areas of public (as compared to private) life:

• employment;
• partnerships;
• education;
• access to premises;
• goods, services and facilities;
• accommodation (in premises for more than three persons);
• land; and
• sport and clubs.

The Australian Government has released exposure drafts of a package of legislative reforms on religious freedom. These are the:

• Religious Discrimination Bill 2019 (Cth)
• Religious Discrimination (Consequential Amendments) Bill 2019 (Cth)
• Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (Cth).

Submissions are due by 2 October 2019,

This article discusses the Religious Discrimination Bill 2019 (Cth) (Bill).

What is a religious belief or activity?

“Religious belief or activity” is defined as holding a religious belief or engaging in lawful religious activity, not holding a religious belief or not engaging in, or refusing to engage in, lawful religious activity.

The explanatory memorandum to the bill states that the concept of religious belief is not defined for the purposes of this Act.  Religious belief is intended to include beliefs associated with major faith traditions (such as Buddhism, Christianity, Hinduism, Islam or Judaism) in addition to the beliefs of smaller and emerging faith traditions. The term religious belief is intended to capture genuine religious beliefs. It is not intended to capture, for the purposes of the Bill, beliefs caused by mental illness or which are motivated by criminal intent.

Prohibition of discrimination

The bill prohibits discrimination largely on the same terms as existing discrimination laws, but adds the “religious belief or activity” ground, making it unlawful to not provide accommodation or services or terminate a person’s employment on the basis of them being Catholic or Muslim or Jewish.

A person discriminates against another person on the ground of the other person’s religious belief or activity if a person:

• directly discriminates (by way of how they treat that person) on the basis of their religious belief (section 7); or
• Indirectly imposes, or proposes to impose, a condition or requirement of practice and that condition or requirement of practice has the effect of disadvantaging the person on the basis of their religious belief and that condition is not reasonable.

Whether or not something is reasonable depends upon the nature and extent of the disadvantage, the feasibility of overcoming or mitigating the disadvantage, whether the disadvantage is proportionate to the result and if the condition, requirement or practice is an employer conduct rule.

The explanatory statement to the Bill states that an example of such a condition, requirement or practice could be a condition of employment that all employees are to attend meetings every Friday afternoon. This would disadvantage Jewish employees who leave early on Fridays to observe the Sabbath.

For example, a requirement that all employees involved in food preparation wear certain clothing for food safety purposes may disadvantage persons who wear religious dress.

This is likely to be reasonable if it is necessary to satisfy food safety requirements. However, if the dress code prohibited employees from wearing any form of religious dress that was not related to food safety requirements, or prohibited them from wearing religious dress at all times while in the workplace, this could disproportionately limit the ability of employees to engage in their religious activity, and therefore could be unreasonable.

If you have two or more reasons, one being on the basis of a person’s religious belief or activity (whether or not it is the dominant or substantial reason), the conduct is taken to be engaged for the religious belief or activity.

Making statements of belief

Perhaps the most controversial element of the Bill is that the legislation protects people “from making a statement of belief” (section 41)

An employer conduct rule under this section is not reasonable if it would restrict or prevent an employee “from making a statement of belief at a time other than when the employee is performing work”, unless the statement is malicious or would harass, vilify or incite hatred against a person or group.

But where a large business – with a turnover of $50m or more – claims that an employment conduct rule that “would restrict or prevent an employee from making statements of belief in their private capacity, the business is required to prove that compliance with the condition is necessary to avoid unjustifiable financial hardship to the business”.

A code of conduct prohibiting employees from making offensive comments on social media outside of work could therefore be unlawful discrimination.

This provision only applies, though, to employers with annual revenue of at least A$50 million, which would be many health and aged care providers - refer to section 8(3) and the definition of ‘relevant employer’ in section 5(1).

Section 17(1) of the Tasmanian Anti-Discrimination Act prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of attributes such as disability, sex, sexual orientation and gender identity.

Section 41 of the Religious Discrimination Bill states that “a statement of belief does not contravene section 17(1)” of the Tasmanian Act unless it is malicious or is likely to harass, vilify or incite hatred or violence against a person or group of persons.

It also provides that a statement of belief does not constitute discrimination for the purposes of any discrimination law in Australia – whether at federal, state or territory level.

It would mean statements based on religious belief that offend, humiliate, insult or intimidate women, LGBTIQ+ people or persons with disabilities would be lawful, regardless of what state laws provide unless they meet the high threshold of harassment, vilification or incitement of hatred.

Some commentators have argued that the draft Religious Discrimination Bill goes too far in prioritising religious rights (which is a choice) over all others (sex, race, etc not being choices).

Conscientious objections

Many health and aged care providers are faith-based not for profit organisations.

Section 8(5) allows conscientious objections by health practitioners.

This means that where a health practitioner is required by their employer to provide a service to which they object on religious grounds, this requirement will likely be unreasonable – and therefore discriminatory.  Areas, where services may conflict with religious beliefs, including assisting with the termination of pregnancies and voluntary assisted dying.

In practice, the right to conscientiously object has been observed by many faith-based health and aged care providers for many years without an issue.

Exceptions

The one big exception is that religious bodies (such as a registered charity) can discriminate on the grounds of religion where their conduct is “in good faith, [and] may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of their religion”.