Religious Discrimination Bill 2021 Religious Discrimination (Consequential Amendments) Bill 2021 [2022] AUSStaCSBSD 42 (18 March 2022)

• Religious Discrimination Bill 2021 Religious Discrimination (Consequential Amendments) Bill 2021
• Significant matters in delegated legislation—publicly available policies54
• Significant matters in delegated legislation—overriding state or territory laws in relation to employment by religious educational institutions and statements of belief58

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Religious Discrimination Bill 2021
Religious Discrimination (Consequential Amendments) Bill 2021

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
Bill status	Before the Senate

Significant matters in delegated legislation—publicly available policies^[54]

2.108 In Scrutiny Digest 18 of 2021, the committee requested the Attorney-General's advice as to:

• why the requirements for certain policies relevant to the application of discrimination law, including how the policies are to be made publicly available, have been left to delegated legislation; and

• whether the bill could be amended to include at least high-level guidance in relation to this matter on the face of the primary legislation.^[55]

2.109 The committee considered the Attorney-General's response in Scrutiny Digest 1 of 2022 and requested that an addendum containing the key information provided by the Attorney-General be tabled in the Parliament as soon as practicable.^[56]

Attorney-General's response^[57]

2.110 The Attorney-General advised:

I note the Committee has recommended further explanatory material on the requirements for publicly available polices be included.
The Government has now moved amendments to the Religious Discrimination Bill 2021 to provide further clarity regarding what is required to be included in a publicly available policy. The requirements are based upon the suggested approach by the Religious Freedom Review (for example, in paragraph 1.250 of the Report) and the requirements set out in paragraph 11(1)(b). These amendments to subclauses 7(6), 9(3), 9(5), 40(2), and 40(5) provide that a policy must:
• outline the religious body’s position in relation to particular religious beliefs or activities; and
• explain how that position is or will be enforced; and
• be publicly available, including at the time employment opportunities with the religious body become available.
This ensures the requirements for publicly available policies are consistent throughout the Bill. However, as clause 40 relates to accommodation, rather than employment, it is not necessary to include the requirement specifying that the policy be available at the time employment opportunities become available.
This implements recommendation 8 of the [Parliamentary Joint Committee on Human Rights] inquiry report on the Religious Discrimination Bill 2021 and related bills, with one minor variation. With the inclusion of these requirements, sufficient detail about these policies is now included in the Bill. Accordingly, the Government amendments also removed the provisions permitting the Minister to determine requirements for a publicly available policy (being former subclauses 7(7), 9(7), 40(3) and 40(6)).

Committee comment

2.111 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the government has moved amendments to clarify what is required to be included in a publicly available policy. Specifically, the government's amendments provide that a policy must outline a religious body's position in relation to particular religious beliefs or activities and explain how that position is or will be enforced. The amendments also require that a policy be publicly available, including (where relevant) at the time employment opportunities with the religious body become available.

2.112 The committee welcomes the government amendments which set out further detail within the bill as to what is required to be included within a publicly available policy. In light of these amendments, the committee makes no further comment on this matter.

Significant matters in delegated legislation—overriding state or territory laws in relation to employment by religious educational institutions and statements of belief^[58]

2.113 In Scrutiny Digest 18 of 2021, the committee requested the Attorney-General's advice as to:

• why the power to prescribe certain state and territory laws under clause 11 is left to delegated legislation; and

• which state or territory laws, if any, are currently intended to be prescribed within regulations made under subclause 11(3).^[59]

2.114 The committee considered the Attorney-General's response in Scrutiny Digest 1 of 2022 and requested the Attorney-General's further advice as to why it is considered necessary and appropriate to leave the power to prescribe additional laws for the purpose of clause 12 (statements of belief) to delegated legislation.^[60]

Attorney-General's response^[61]

2.115 The Attorney-General advised:

I note my advice in response to Scrutiny Digest 18 of 2021 set out the Government’s position in relation to this issue.
Further, I note that the Government moved minor amendments to the drafting of clauses 11 and 12 to more clearly engage section 109 of the Constitution to override relevant State and Territory laws.

Committee comment

2.116 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the government has moved amendments to more clearly engage section 109 of the Constitution to override relevant State and Territory laws.

2.117 While acknowledging these amendments, which are intended to address uncertainty as to whether the Commonwealth Parliament has the power to alter the application or effect of a state law in the manner previously contemplated by the bill, the committee reiterates its view that overriding or altering the effect of a law duly passed by a state parliament is a particularly significant matter that should not be dealt with by way of executive-made law.

2.118 The committee therefore draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving to delegated legislation:

• the prescription of which state and territory laws relating to employment by religious educational institutions will be overridden by Commonwealth law; and

• the prescription of additional Commonwealth, state and territory laws for which the making of a statement of belief will not constitute discrimination.

2.119 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Broad discretionary power^[62]

2.120 The committee initially scrutinised this bill in Scrutiny Digest 18 of 2021.^[63] The committee considered the Attorney-General's response in Scrutiny Digest 1 of 2022 and requested the Attorney-General's further advice as to whether the bill could be amended to:

• provide high-level guidance in relation to the circumstances in which the ministerial variation and revocation power at clause 47 may be invoked;

• clarify whether the variation power may be utilised to extend the period of an exemption beyond 5 years; and

• include a requirement that the Commission or minister must, consistent with section 46 of the Age Discrimination Act 2004, section 57 of the Disability Discrimination Act 1992 and section 46 of the Sex Discrimination Act 1984, publish within a month of an exemption decision, or a variation or revocation decision, a notice setting out:

- the Commission or minister's findings on material questions of facts in relation to the decision;

- the evidence on which those findings were based;

- the reasons for the decision; and

- the fact that an application may be made to the Administrative Appeal Tribunal for a review of the decision; or

• alternatively, specify that the above information must be included within the relevant notifiable instrument made under subclause 44(1) or 47(1).^[64]

Attorney-General's response^[65]

2.121 The Attorney-General advised:

Further to my advice in response to Scrutiny Digest 18 of 2021, the Government has moved amendments to increase transparency around the making of temporary exemptions by the Australian Human Rights Commission, and to remove the Minister’s power to vary or revoke a temporary exemption. This will be done through the inclusion of a new clause 44A, and amendments to existing clauses 47 and 48.
As noted by the Committee, under clause 44 of the Bill, the Commission is currently able to grant temporary exemptions from the prohibition on discrimination on the grounds of religious belief or activity under the Bill. New clause 44A will require the Commission, after making a decision on an application for a temporary exemption, to publish a notice on its website specifying its reasons, findings, relevant evidence, and noting that the Commission’s decision is subject to review through the Administrative Appeals Tribunal. This new subclause is consistent with the Commission’s existing notice requirements in making temporary exemptions under the Age Discrimination Act 2004, the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984, and will ensure transparency of the Commission’s decisions and allow for appropriate public scrutiny.
Additionally, clause 47 had provided that either the Commission or the Minister may vary or revoke a temporary exemption granted by the Commission under clause 44. The Government has now moved an amendment that will remove the Minister’s power to revoke or vary a temporary exemption granted by the Commission, consistent with the approach under existing Commonwealth anti-discrimination law.
These amendments also implement recommendations 4 and 6 of the report of the Parliamentary Joint Committee on Human Rights inquiry on the Religious Discrimination Bill 2021 and related bills, tabled on 4 February 2022.

Committee comment

2.122 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the government has moved amendments to increase transparency around the making of temporary exemptions and to remove the minister’s power to vary or revoke a temporary exemption.

2.123 The committee reiterates its scrutiny concerns that there appear to be no restrictions on the ability of the Commission to renew an exemption indefinitely, as well as no restriction on the period of the exemption being varied by the Commission.

2.124 The committee welcomes the government amendments which:

• remove the minister's power to vary or revoke exemptions; and

• provide that the Commission must, consistent with section 46 of the Age Discrimination Act 2004, section 57 of the Disability Discrimination Act 1992 and section 46 of the Sex Discrimination Act 1984, publish within a month of an exemption decision a notice setting out:

- the Commission's findings on material questions of facts in relation to the decision;

- the evidence on which those findings were based;

- the reasons for the decision; and

- the fact that an application may be made to the Administrative Appeal Tribunal for a review of the decision.

2.125 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the Australian Human Rights Commission with a broad power to grant or vary exemptions from the prohibition on discrimination on the grounds of religious belief or activity under the bill, with no restrictions on the ability of the Commission to renew an exemption indefinitely.

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

[55] Scrutiny Digest 18 of 2021, pp. 25-27.

[56] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 52-55.

[57] The Attorney-General responded to the committee's comments in a letter dated 22 February 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.

[58] Clauses 11 and 12 of the Religious Discrimination Bill 2021. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[59] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2021, p. 27.

[60] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 55-58.

[61] The Attorney-General responded to the committee's comments in a letter dated 22 February 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.

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

[63] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2021, pp. 29-30.

[64] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 61-64.

[65] The Attorney-General responded to the committee's comments in a letter dated 22 February 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.