Religious Discrimination Bill 2021 Religious Discrimination (Consequential Amendments) Bill 2021 [2021] AUSStaCSBSD 258 (1 December 2021)

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Purpose	The Religious Discrimination Bill 2021 seeks to introduce federal protections to prohibit discrimination on the basis of a person’s religious belief or activity in a wide range of areas of public life, including in relation to employment, education, access to premises, goods, services and facilities, and accommodation. The Religious Discrimination (Consequential Amendments) Bill 2021 seeks to amend the Australian Human Rights Commission Act 1986 and other existing federal legislation to ensure that discrimination on the basis of religious belief or activity under the Religious Discrimination Bill is treated in the same manner as discrimination under the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and the Sex Discrimination Act 1986.
Portfolio	Attorney-General
Introduced	House of Representatives on 24 November 2021

Significant matters in delegated legislation—publicly available policies^[66]

1.89 Clause 7 of the Religious Discrimination Bill 2021 (the Religious Discrimination Bill) sets out the circumstances in which a religious body's conduct is not discrimination. Subclause 7(6) provides that if a religious educational institution engages in certain conduct in relation to employment, this must be in accordance with a publicly available policy. Subclause 7(7) provides that the minister may, by legislative instrument, determine requirements for the policy, including in relation to its availability.

1.90 Clause 9 provides circumstances in which the conduct of religious hospitals, aged care facilities, accommodation providers and disability service providers is taken not to be discrimination under the bill. Subclause 9(3) provides that conduct is taken not to be discrimination in relation to employment and partnerships where that conduct is undertaken in good faith that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of the religion, and in accordance with a publicly available policy. Subclause 9(5) provides a similar exception where the person engages, in good faith, in the conduct to avoid injury to the religious susceptibilities of adherents of the person's religion.

1.91 Subclause 9(7) provides that the minister may, by legislative instrument, determine requirements for the policy, including in relation to its availability.

1.92 Clause 40 provides specific exceptions from the prohibition on the provision of accommodation set out in clause 27. Subclauses 40(2) and (5) provide that it is not unlawful for a religious camp or conference site to discriminate against another person on the ground of religious belief or activity in the provision of accommodation or other facilities by engaging in conduct in good faith that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of the religion, and in accordance with a publicly available policy. Subclause 40(5) provides a similar exception where the person engages, in good faith, in the conduct to avoid injury to the religious susceptibilities of adherents of the person's religion.

1.93 Subclauses 40(3) and (6) provide that the minister may, by legislative instrument, determine requirements for the policy, including in relation to its availability.

1.94 The committee's consistent scrutiny view is that significant matters, such as the requirements for policies relevant to the application of discrimination law, should be included in the primary legislation unless a sound justification is provided for the use of delegated legislation. In this instance, no explanation for the use of delegated legislation is provided in the explanatory memorandum in relation to subclauses 7(7), 9(7), 40(3) and (6), other than noting that including requirements in delegated legislation could provide further clarity for religious bodies in relation to the nature and scope of the policy requirement.^[67] The explanatory memorandum also notes the importance of the publicly available policy as an important safeguard noting that it will 'increase certainty and transparency'.^[68]

1.95 Noting the importance of the policy as a safeguard, it is unclear to the committee why the requirements for the policy, including how it is to be made publicly available, are not included on the face of the primary legislation. The committee considers that at least high-level guidance could be provided on the face of the primary legislation in relation to this matter. The committee notes that delegated legislation, made by the executive, is not subject to the same level of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.96 In light of the above, the committee requests the Attorney-General's advice as to:

Significant matters in delegated legislation—overriding state or territory laws in relation to employment by religious educational institutions^[69]

1.97 Clause 11 provides that a religious body that is an educational institution does not contravene a prescribed state or territory law if, when engaging in conduct relating to employment, the body gives preference, in good faith, to persons who hold or engage in a particular religious belief or activity and the conduct is in accordance with a publicly available policy setting out the matters at paragraph 11(1)(b). Subclauses 11(2) and 11(3) provide that the regulations may prescribe a law of a state or territory for the purposes of clause 11.

1.98 As noted above, the committee's consistent scrutiny view is that significant matters, such as key details relating to the application of discrimination law, including the overriding of relevant state or territory laws, should be included in primary legislation unless a sound justification has been provided for the use of delegated legislation. In this instance the explanatory memorandum does not justify why it is necessary to include these significant matters within delegated legislation, nor which state or territory laws it is intended will, or may, be prescribed within the regulations. Rather, the explanatory memorandum merely re-states the effect of the provision.^[70]

Significant matters in delegated legislation—general exception for acts done in direct compliance with certain Commonwealth, state and territory laws^[71]

1.100 Clause 37 provides a general exception from the prohibition on discrimination for acts done in direct compliance with Commonwealth, state and territory legislation. Subclause 37(1) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the conduct constituting the discrimination is in direct compliance with a provision of a Commonwealth law, or instrument, which is not prescribed by the regulations.

1.101 Subclause 37(3) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the relevant conduct was in direct compliance with a provision of a state or territory law which is not prescribed by the regulations.

1.102 The committee's consistent scrutiny view is that significant matters, such as key matters relating to general exceptions to the religious discrimination framework, should be included in primary legislation unless a sound justification has been provided for the use of delegated legislation. In relation to subclause 37(3), the explanatory memorandum states:

1.103 While the committee acknowledges this explanation, the committee considers that further guidance in relation to the circumstances in which laws may be prescribed under subclauses 37(1) and 37(3) should be included on the face of the bill. The committee notes that delegated legislation, made by the executive, is not subject to the same level of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

Broad discretionary power^[73]

1.105 Clause 44 of the Religious Discrimination Bill provides that the Commission may, by notifiable instrument, exempt a person or body from their obligations under Division 2 or 3 of the bill. Paragraph 44(2)(c) provides that this exemption must be granted for a specified period which must not exceed 5 years. Clause 47 of the bill provides that the Commission or the Minister may, by notifiable instrument, vary or revoke an exemption granted under clause 44.

1.106 The committee notes that clauses 44 and 47 would provide the Commission and the Minister with a broad power to grant, vary or revoke an exemption to a person or body. The committee notes that insufficiently defined administrative powers, such as those granted under clauses 44 and 47, may be exercised arbitrarily or inconsistently and may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles. The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum and that guidance in relation to the exercise of the power should be included within the primary legislation. In this instance, the explanatory memorandum does not provide any explanation for the broad discretionary power and no guidance is included on the face of the bill.

1.107 From a scrutiny perspective, the committee is concerned that without guidance on the face of the bill as to how the exemption power may be exercised it would be possible for broad-ranging or long-standing exemptions to be made by the minister which would undermine the religious discrimination framework enshrined in primary legislation passed by the Parliament.

1.108 In light of the above, the committee requests the Attorney-General's advice as to:

Broad delegation of administrative power^[74]

1.109 Subclause 69(1) of the Religious Discrimination Bill provides that the Commission may, in writing, delegate all or any of its functions or powers to the Commissioner, a member of the staff of the Commission or any other person or body of persons. Subclause 69(2) provides that the Religious Discrimination Commissioner may delegate all or any of the Commissioner's functions or powers to an approved member of the staff of the Commission or any other person or body of persons approved by the Commission.

1.110 In addition, item 4 of Schedule 1 to the Religious Discrimination (Consequential Amendments) Bill 2021 (the Consequential Amendments Bill) seeks to insert proposed paragraph 8(1)(h) into the Australian Human Rights Commission Act 1986 (the AHRC Act). Proposed paragraph 8(1)(h) would provide that Religious Discrimination Commissioner is a member of the Australian Human Rights Commission. Under existing section 19 of the AHRC Act a member of the Australian Human Rights Commission may delegate their functions or powers conferred under that Act to another member of the Commission, a staff member or any other person or body.

1.111 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. The explanatory memorandum to the Consequential Amendments Bill provides no justification for the broad delegation of administrative powers conferred by item 4 of Schedule 1. In relation to clause 69 of the Religious Discrimination Bill, the explanatory memorandum states:

1.112 While noting this explanation, the committee has generally not accepted consistency with existing legislation to be a sufficient justification for allowing a broad delegation of administrative powers to a large class of persons. From a scrutiny perspective, the committee continues to have concerns given the breadth of the power conferred by clause 69 of the Religious Discrimination Bill and existing section 19 of the AHRC Act to confer functions or powers on any staff member or other person or body of persons.

1.113 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing the powers and functions of the Commission or the Commissioner to be delegated to any staff member of the Commission or to any other person or body of persons.

Immunity from civil liability^[76]

1.114 Subclause 72(2) of the Religious Discrimination Bill provides that the Commission, the Commissioner, or another member of the Commission is not liable to an action or other proceeding for damages in relation to the performance or exercise, in good faith, of their functions or powers conferred by the bill. In addition, subclauses 72(3) and (4) provide that a person is immune to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person in relation to the making of a submission or the giving of a document, information or evidence to the Commission by reason only that the submission was made, or the document, information or evidence was given.

1.115 In addition, as noted above, item 4 of Schedule 1 to the Consequential Amendments Bill seeks to insert proposed paragraph 8(1)(h) into the AHRC Act. Proposed paragraph 8(1)(h) would provide that Religious Discrimination Commissioner is a member of the Australian Human Rights Commission. Under existing section 48 of the AHRC Act a member of the Australian Human Rights Commission, or a person acting on their behalf, is protected from civil actions related to the performance or exercise of their functions or powers conferred under that Act that are done in good faith.

1.116 Clause 72 of the Religious Discrimination Bill and existing section 48 of the AHRC Act remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.117 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum to both bills provides no explanation for this provision, merely restating the terms of the provision.

1.118 The committee requests the Attorney-General's advice as to why it is considered necessary and appropriate to provide the Commission, the Commissioner, or another member of the Commission with civil immunity under clause 72 of the Religious Discrimination Bill 2021 and the Commissioner, or a person acting on their behalf, with civil immunity under section 48 of the Australian Human Rights Commission Act 1986 so that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.

Reversal of the evidential burden of proof^[77]

1.119 Subclause 74(1) of the Religious Discrimination Bill makes it an offence for a person who is, or has been, an entrusted person to disclose protected information acquired as an entrusted person to another person. The offence carries a maximum penalty of 2 years imprisonment. Subclause 74(2) provides an exception (offence-specific defence) to this offence, stating that the offence does not apply if the conduct is authorised by a law of the Commonwealth, state or territory; or if the conduct is engaged in during the performance of a function under or in connection with the bill, in the exercise of a power conferred on the Commission or the Commissioner by the bill, or in accordance with an arrangement in force under section 16 of the AHRC Act. A defendant bears an evidential burden in relation to these defences.

1.120 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[78] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.121 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.

1.122 The committee notes that no explanation has been provided in the explanatory memorandum regarding why is appropriate to reverse the evidential burden of proof in relation to the matters in subclause 74(2).

1.123 As the explanatory materials do not address this issue, the committee requests the Attorney-General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[79]

Bills with no committee comment

1.124 The committee has no comment in relation to the following bills which were introduced into the Parliament between 22 – 25 November 2021:

[66] Subclauses 7(7), 9(7), 40(3) and 40(6) of the Religious Discrimination Bill 2021. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[69] Clause 11 of the Religious Discrimination Bill 2021. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[71] Clause 37 of the Religious Discrimination Bill 2021. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[73] Clauses 44 and 47 of the Religious Discrimination Bill 2021. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[77] Subclause 74(2) of the Religious Discrimination Bill 2021. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[78] Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[79] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests