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Equal Opportunity (Religious
Exceptions) Amendment Bill 2021
Introduction Print
EXPLANATORY MEMORANDUM
General
The Equal Opportunity (Religious Exceptions) Amendment Bill 2021
amends the Equal Opportunity Act 2010 (referred to as the "Principal Act"
in this explanatory memorandum) to narrow and remove exceptions to the
prohibition of discrimination for religious bodies, religious educational
institutions and religious individuals in certain areas of activity. The purpose
of these amendments is to better balance the right to equality with the right to
freedom of religion, so that both rights can be appropriately recognised and
enjoyed.
Clause Notes
Part 1—Preliminary
Clause 1 sets out the purposes of the Bill, which are to amend the Principal
Act to limit the exceptions to discrimination for religious bodies
and religious educational institutions in relation to employment,
religious bodies in relation to the provision of government funded
goods or services, the general exception for religious educational
institutions, and to remove the religious exception to
discrimination by individuals.
Clause 2 is the commencement provision, which provides for the Bill,
except for Division 2 of Part 2, to come into operation on a day
or days to be proclaimed, or 6 months after the day on which the
Bill receives Royal Assent if not proclaimed before that date.
Division 2 of Part 2 will come into operation on a day or days to
be proclaimed, or 12 months after the day on which the Bill
receives Royal Assent if not proclaimed before that date. This
591178 BILL LA INTRODUCTION 27/10/2021
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allows for planning and consultation for the narrowed exception
for government funded goods or services to minimise any
disruption to service provision, particularly in regional and
remote areas.
Part 2—Amendment of the Equal Opportunity Act 2010
Division 1—Employment and general
Clause 3 amends section 81 of the Principal Act, which defines religious
body for the purposes of sections 82 and 83. The purpose of the
amendment is to apply the definition of religious body to all
provisions that use the term in Part 5 of the Principal Act.
Clause 4 inserts a new section 81A into the Principal Act to define
relevant educational entity for Part 5. A relevant educational
entity is defined as a person or body to which section 83 of the
Principal Act applies. This is important for the operation of
clause 8 of the Bill, which inserts new section 83A into the
Principal Act to provide a specific exception for religious
educational institutions in relation to employment.
Clause 5 amends section 82(2) of the Principal Act. Section 82(2)
contains an exception to discrimination under Part 4 of the
Principal Act for religious bodies.
Subclause (1) carves out the area of employment from this
exception to enable the operation of new section 82A.
Subclause (2) inserts an additional requirement that the action
taken by the religious body is reasonable and proportionate in
the circumstances in order to fall within the exception in
section 82(2). This could include consideration as to whether the
action is harsh or unjust and the consequences for the person and
religious body. The purpose of this amendment is to better
balance the right to equality with the right to religious freedom,
so that both can be appropriately recognised and enjoyed.
Subclause (3) amends sections 82(2)(a) and (b) to clarify that the
religion referred to is that of the religious body.
Subclause (4) inserts new subsection (2) into section 82 of the
Principal Act to make it clear that the religious exception in
section 82(2) is subject to the specific exceptions for religious
educational institutions (both the general exception in section 83
and the employment exception in new section 83A). The
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intention is that religious educational institutions may only rely
on section 83 and new section 83A rather than the broader
exception in section 82(2) (which allows discrimination on the
basis of a wider range of attributes).
Clause 6 inserts new section 82A into the Principal Act, which provides an
exception to discrimination available to religious bodies in the
area of employment. This exception is narrower than the general
exception in section 82(2)—discriminatory conduct will only be
covered by this exception if it is on the basis of religious belief
or activity, and not based on other protected attributes such as
sexual orientation, lawful sexual activity, marital status, parental
status or gender identity. The purpose of this amendment is to
better balance the right to equality with the right to religious
freedom, so that both can be appropriately recognised and
enjoyed.
New subsections (1)(a) and (b) provide that the exception can
only be relied upon if conformity with the religious body's
doctrines, beliefs or principles is an inherent requirement of the
position, and a person cannot meet the inherent requirement
because of their religious belief or activity.
New subsection (1)(c) provides that the exception only applies
where the discrimination is reasonable and proportionate in the
circumstances. This could include consideration as to whether
the action is harsh or unjust and the consequences for the person
and religious body.
New subsection (2) provides guidance that the nature of the
religious body and its religious doctrines, beliefs or principles
must be taken into account when determining the inherent
requirements of a position.
New subsection (3) makes it clear that this exception only allows
discrimination on the basis of a person's religious belief or
activity, and not on the basis of other protected attributes such as
sexual orientation, lawful sexual activity, marital status, parental
status or gender identity.
Clause 7 amends section 83 of the Principal Act, which contains the
exception to discrimination available for religious educational
institutions.
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Subclause (1) amends the heading of section 83 to make it clear
that the exception applies to all educational institutions
conducted in accordance with religious doctrines, beliefs or
principles, not just religious schools.
Subclause (2) amends section 83(2) of the Principal Act to carve
out the area of employment from the exception available for
religious educational institutions, to enable the operation of new
section 83A. This subclause also narrows the exception in
section 83 so that it can only be relied on for anything done on
the basis of a person's religious belief or activity. This prevents
religious educational institutions from relying on this exception
to discriminate on the basis of sex, sexual orientation, lawful
sexual activity, marital status, parental status or gender identity.
The purpose of this amendment is to better balance the right to
equality with the right to religious freedom, so that both can be
appropriately recognised and enjoyed.
Subclause (3) inserts an additional requirement that the action
taken by the religious educational institution is reasonable and
proportionate in the circumstances in order to fall within the
exception in section 83. This could include consideration as to
whether the action is harsh or unjust and the consequences for the
person and religious body.
Subclause (4) amends subsections (2)(a) and (b) of section 83 of
the Principal Act to clarify that the religion referred to in these
paragraphs is that of the religious educational institution.
Clause 8 inserts a new section 83A into the Principal Act, which provides
an exception to discrimination that is available to religious
educational institutions in the area of employment.
New subsections (1)(a) and (b) of section 83A of the Principal
Act provide that the exception can only be relied upon if
conformity with the religious educational institution's doctrines,
beliefs or principles is an inherent requirement of the position,
and a person cannot meet the inherent requirement because of the
person's religious belief or activity.
New subsection (1)(c) of section 83A of the Principal Act
provides that the exception only applies where the discrimination
is reasonable and proportionate in the circumstances. This could
include consideration as to whether the action is harsh or unjust
and the consequences for the person and religious educational
institution.
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New subsection (2) of section 83A of the Principal Act provides
guidance that the nature of the religious educational institution
and its religious doctrines, beliefs of principles must be taken into
account when determining the inherent requirements of a
position.
New subsection (3) of section 83A of the Principal Act makes it
clear that this exception only allows discrimination on the basis
of a person's religious belief or activity, and not on the basis of
other protected attributes such as sexual orientation, lawful
sexual activity, marital status, parental status or gender identity.
Clause 9 repeals section 84 of the Principal Act, which currently provides
an exception to discrimination for individuals on the basis of
listed attributes where the discrimination is reasonably necessary
for the person to comply with the doctrines, beliefs or principles
of their religion. This provision allows individuals to
discriminate on the basis of a person's religious belief or activity,
sex, sexual orientation, lawful sexual activity, marital status,
parental status or gender identity.
The Bill removes this exception as it is anomalous both in the
Principal Act (there is no similar exception for individuals with
other protected attributes) and in similar anti-discrimination laws
across Australia. The purpose of this amendment is to better
balance the right to equality with the right to religious freedom,
so that both can be appropriately recognised and enjoyed.
Division 2—Government funded goods and services
Clause 10 sets out definitions of expressions for inclusion in new
section 81A of the Principal Act to apply in Part 5.
Government funded goods or services is defined to mean goods
or services (including accommodation services) that are provided
under a funding agreement between a religious body and a public
sector body. Religious bodies that provide goods or services
under one of these funding agreements are only able to
discriminate in the provision of those goods or services as set out
in new section 82B.
The definition of Public sector body adopts the meaning used in
the Public Administration Act 2004.
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Clause 11 amends section 82(2) of the Principal Act, which contains the
general exception to discrimination under Part 4 of the Principal
Act available to religious bodies. The purpose of the amendment
is to carve-out the provision of government funded goods or
services from this exception to enable the operation of new
section 82B.
Clause 12 inserts new section 82B into the Principal Act, which provides an
exception to discrimination for religious bodies in the provision
of government funded goods or services. This exception is
narrower than the general exception in section 82(2)—
discriminatory conduct will only be covered by the exception if
it is on the basis of religious belief or activity, and not based on
other protected attributes such as sexual orientation, lawful
sexual activity, marital status, parental status or gender identity.
The purpose of this amendment is to better balance the right to
equality with the right to religious freedom, so that both can be
appropriately recognised and enjoyed.
Religious bodies can rely on this exception in the provision of
government funded goods or services (regardless of whether they
are provided for payment or not) where the body, based on a
person's religious belief or activity—
• refuses to provide the goods or services;
• determines the terms on which the goods or services are
provided; or
• subjects a person to any detriment in connection with
the provision of the goods or services.
This exception applies where the discriminatory action is in
conformity with the doctrines, beliefs or principles of the
religious body or is reasonably necessary to avoid injury to the
religious sensitivities of adherents of the religion and the
discrimination is reasonable and proportionate in the
circumstances. This could include consideration as to whether
the action is harsh or unjust and the consequences for the person
and religious body.
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New subsection (2) of new section 82B of the Principal Act
makes it clear that this exception only allows discrimination on
the basis of a person's religious belief or activity, and not on the
basis of other protected attributes such as sexual orientation,
lawful sexual activity, marital status, parental status or gender
identity.
Clause 13 provides for the automatic repeal of this amending Act on the
first anniversary of the first day on which all of its provisions are
in operation. The repeal of this Act does not affect in any way
the continuing operation of the amendments made by this Act
(see section 15(1) the Interpretation of Legislation Act 1984).