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On 29 August 2019, the Federal gov­ern­ment released an Exposure Draft of the Religious Dis­crim­in­a­tion Bill 2019 (the Bill) and two further Bills making related and asso­ci­ated amend­ments.  These are intended to give effect to Recom­mend­a­tions 3, 15 and 19 in the Report of the Expert Panel on Religious Freedom.

The Bill would make it unlawful to dis­crim­in­ate against others on the basis of their religious belief or activity. Nev­er­the­less, it seeks to provide some general pro­tec­tion to indi­vidu­als for “state­ments of belief” that might be attacked as dis­crim­in­a­tion, and to allow religious bodies to continue to operate in accord­ance with their beliefs. This attempts to plug a gap in the current law, and for this the gov­ern­ment deserves credit. As stated in para 6 of the Explan­at­ory Memor­andum to the Bill, “current pro­tec­tions in Com­mon­wealth, state and territory laws for dis­crim­in­a­tion on the basis of a person’s religious belief or activity are piecemeal, have limited applic­a­tion and are incon­sist­ent across jur­is­dic­tions”.

In our view, certain critical aspects of the Bill require further thought.  The following comments are a pre­lim­in­ary analysis only, and do not purport to cover everything that the three Bills address.  A list of Recom­mend­a­tions appears in the final section of this document.

The Aus­trali­an gov­ern­ment has invited sub­mis­sions on the draft legis­la­tion.  Sub­mis­sions close on Wednesday, 2 October 2019. The Sub­mis­sion Form can be accessed via https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx. Members of the Jewish community are also welcome to email their comments to the Executive Council of Aus­trali­an Jewry at [email protected] by 16 September 2019.

Part  1

Freedom of religion

The Bill does not create a positive right of freedom of religion in the sense of a Bill of Rights type of provision. But that is not what the ECAJ called for.  The ECAJ called for freedom of religion to be affirmed as a positive right, rather than as a negative “exception to the rule” in the exemp­tions to various anti-dis­crim­in­a­tion laws of the States and Ter­rit­or­ies.  The Bill in effect, if not in terms, achieves this in clauses 8(3), 10, 11 and 41(1).

As para 160 of the Explan­at­ory Memor­andum to the Bill notes, these pro­vi­sions are “not framed as an exception to the pro­hib­i­tion of dis­crim­in­a­tion under Part 3”. Rather, they are over-riding pro­vi­sions affirming that persons of faith do not in general engage in dis­crim­in­a­tion simply by pro­fess­ing their faith, nor do religious bodies engage in dis­crim­in­a­tion simply by operating according to their ethos.  It is the affirm­a­tion that these acts are not dis­crim­in­a­tion which is made the rule, and the limited cir­cum­stances where such acts might con­sti­tute dis­crim­in­a­tion which are made the excep­tions.  This is the reverse of the structure adopted in the current anti-dis­crim­in­a­tion laws of the States and Ter­rit­or­ies with regard to religion, as was discussed by many faith community leaders, including the ECAJ, in their con­sulta­tion with the Prime Minister on 5 August 2019.

Although it may be less relevant to the Jewish community, the Bill will also need to be con­sidered in light of the Report of the Aus­trali­an Law Reform Com­mis­sion (ALRC) when it completes its Review into the Framework of Religious Exemp­tions in Anti-dis­crim­in­a­tion Legis­la­tion.  The terms of reference of that review have now been narrowed.  Accord­ingly, the timing of the release of the ALRC Report should be brought forward to as early a date as possible, and no later than the date ori­gin­ally set, namely 10 April 2020.  Altern­at­ively:

• the gov­ern­ment should announce that the Report will be released, and any con­sequent legis­lat­ive reform will be enacted, during the life of the present par­lia­ment; and
• a provision should be added to the Bill to the effect that a review of its pro­vi­sions will commence upon release of the Report and it will be completed, and any con­sequent legis­lat­ive reform will be enacted, during the life of the present par­lia­ment.

Part  2

Religious bodies may act in accord­ance with their beliefs

No act of dis­crim­in­a­tion occurs under the Bill if “a religious body” engages “in good faith” in conduct “that may reas­on­ably be regarded as being in accord­ance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted” – clause 10(1).   A “religious body” is defined in clause 10(2). It covers any edu­ca­tion­al insti­tu­tion, registered charity or other body “that is conducted in accord­ance with the doctrines, tenets, beliefs or teachings of a par­tic­u­lar religion”, but does not include charities or other bodies that engage solely or primarily in “com­mer­cial activ­it­ies”. Clause 10(3) says that the pro­tec­tions given to religious bodies under clause 10 apply “despite anything else in this Act”.

According to para 178 of the Explan­at­ory Memor­andum, religious bodies protected under clause 10 would generally include Jewish places of worship, bodies engaged in the ordin­a­tion, appoint­ment or training of Jewish clergy or in the selection or appoint­ment of persons to perform duties or functions for, or to par­ti­cip­ate in, any Jewish religious observ­ance or practice, Jewish schools and pre-schools, and charities and other communal bodies which operate according to a religious ethos and are not engaged solely or primarily in com­mer­cial activ­it­ies. Under the Bill all of these bodies would be free to continue operating in accord­ance with their religious beliefs in all their oper­a­tions – including enrolment of students in the case of edu­ca­tion­al insti­tu­tions, their employ­ment practices, and the hiring out of their facil­it­ies – without this being con­sidered dis­crim­in­at­ory.

Under clause 29 of the Bill, a religious charity which has been set up to benefit persons of a specific religion may continue to do so.

Potential problem areas for religious bodies

• Under clause 10(1), the conduct of the religious body will only be protected if it “may reas­on­ably be regarded as being in accord­ance with the doctrines, tenets, beliefs or teachings of the religion”. What standard of reas­on­able­ness will apply?  If it is to be the standard of the ordinary reas­on­able person, how would a reas­on­able member of the general Aus­trali­an community have the knowledge and exper­i­ence to assess whether a par­tic­u­lar act is in accord­ance with Judaism?  On what basis would a judge or jury in a civil court be able to determine what con­clu­sion a reas­on­able member of the general Aus­trali­an community would reach on such a question? Civil courts in English-speaking jur­is­dic­tions have long declined to rule on questions of religious doctrine. To do so would trespass across the well-recog­nised divide between religion and state.  Yet this is precisely what Australia’s civil courts will have to do if an issue arises as to whether or not certain conduct is in accord­ance with a par­tic­u­lar religion, even if the word “reas­on­ably” were to be deleted.

A solution might be to define the standard of reas­on­able­ness as that of a reas­on­able person who is observant in that religion or a denom­in­a­tion or stream of that religion.  The question might then at least be determ­ined on the basis of expert evidence from recog­nised faith leaders and teachers.  Even this solution could present problems in the case of Judaism, with its well-estab­lished tradition of argument, dissent and, on occasions, conflicts of views between relevant religious author­it­ies.

• Religious bodies are defined in clause 10(2) as those which operate in accord­ance with the doctrines of a “religion”. The defin­i­tions of several other key terms in clause 5 (such as “statement of belief”) also refer to “religion”. Yet the Bill contains no defin­i­tion of “religion”.  There is important case law to suggest that a religion must be a system of belief and worship that is held in good faith and is “neither fic­ti­tious, nor capri­cious” and “not an artifice”.  The absence of a defin­i­tion of religion in the Bill poten­tially raises questions as to whether a denom­in­a­tion or stream of a par­tic­u­lar religion is itself a religion for the purposes of the Bill.  In his speech when he released the Bill, the Attorney-General spoke of the desirab­il­ity of the judiciary being “guided and narrowed by a set of legis­lat­ive guard­rails” in inter­pret­ing the Bill’s pro­vi­sions.  For that reason it would be desirable for the Bill to include a defin­i­tion of so fun­da­ment­al a concept as religion. The defin­i­tion would incor­por­ate the case law, and make clear that a religion includes a denom­in­a­tion or stream of a religion. A defin­i­tion of “religion’ would also be desirable in order to give greater clarity to the meaning of “religious belief or activity” – see below.

• Aged care facil­it­ies and hospitals which operate according to a religious ethos are excluded from the defin­i­tion of religious bodies and therefore will not be protected under the Bill. This is because they engage in “com­mer­cial activ­it­ies” – see clause 10(2)(b) and (c).  “Com­mer­cial activ­it­ies” is another crucial concept in the Bill which is not defined, but the Explan­at­ory Memor­andum provides some guidance.  

“172. Com­mer­cial activ­it­ies may include activ­it­ies such as providing goods, services or facil­it­ies to the public, or sectors of the public, on a fee basis.

173. However, it is not necessary that a body operate for-profit in order to fall within the com­mer­cial exception. For example, a registered charity which primarily sells goods to the general public on a com­mer­cial basis will not con­sti­tute a religious body for the purposes of this Act even if the profits are directed to other char­it­able purposes or activ­it­ies so that it operates as a not-for-profit entity.

174. Religious hospitals and aged care providers are not religious bodies for the purposes of this clause because they provide services to the public on a com­mer­cial basis and are not otherwise captured by the defin­i­tion of ‘religious body’. Accord­ingly, a religious hospital could not, for example, dis­crim­in­ate against a potential or existing patient on the basis of the patient’s religious belief or activity.

175. Although com­mer­cial religious entities are not entitled to rely upon this provision, such entities may rely upon other excep­tions in this Act in order to maintain their religious ethos.”

This means that Jewish faith-based aged care facil­it­ies and hospitals cannot pref­er­ence Jewish residents or patients.

Nor may they pref­er­ence the employ­ment of Jewish staff, except where there this is an inherent require­ment of the position, such as a chaplain’s role.  According to para 347 of the Explan­at­ory Memor­andum:

“The High Court has held that whether certain require­ments con­sti­tute inherent require­ments of par­tic­u­lar work depends on whether the require­ments are ‘something essential’ to, or an ‘essential element’ of, the par­tic­u­lar position. The High Court held that this question must be answered by reference not only to the terms of the employ­ment contract but also by reference to the function which the employee performs as part of the employer’s under­tak­ing and by reference to the organ­isa­tion.”

It is entirely possible that Jewish aged care facil­it­ies and hospitals do not exclude or seek to exclude non-Jewish residents or patients or employees, so these pro­vi­sions would not matter to them.  Nev­er­the­less, even though such bodies operate com­mer­cially, they are designed to incor­por­ate religious values and a religious ethos and culture into their care of the ill and vul­ner­able. This can be espe­cially important for Jewish insti­tu­tions in providing care that is cul­tur­ally appro­pri­ate for Holocaust survivors.

A solution might be to remove the bracketed words in para­graphs (b) and (c) in clause 10(1) of the Bill, and add a new sub­sec­tion to clause 10 to the effect that the pro­tec­tion extended to religious bodies does not extend to their com­mer­cial activ­it­ies except to the extent necessary to prevent their facil­it­ies from being used in a manner that detracts from their giving effect to, or is incon­sist­ent with, their religious ethos.

Part 3

Pro­tec­tion of persons from religious dis­crim­in­a­tion

The Bill will protect against dis­crim­in­a­tion on the grounds of religious belief or activity. The term ‘religious belief or activity’ is defined broadly in clause 5 as holding or not holding a religious belief, or engaging, not engaging or refusing to engage in lawful religious activity. Neither the concept of “religious belief” nor the concept of “religious activity” is defined in the Bill.  The Attorney-General’s overview says that “religious belief” is intended to cover the Abrahamic religions, Buddhism, Hinduism as well as smaller and emerging faith tra­di­tions.

Potential problem areas for persons facing religious dis­crim­in­a­tion

Religious activity is expressly limited to “lawful religious activity”.

This means that a person is not protected from being dis­crim­in­ated against on the basis of that person’s religious activity if the activity is not “lawful”.  On the surface, this seems to be a reas­on­able require­ment. As the Explan­at­ory Memor­andum notes, the Bill does not seek to protect people from being dis­crim­in­ated against for engaging in child marriage, to pick one example.

However, it seems that the law­ful­ness or otherwise of the religious activity will be gauged at the time that the person was allegedly dis­crim­in­ated against.  If that is so, then if at some future time shechita (kosher slaughter of animals for con­sump­tion) and brit milah (infant male cir­cum­cision) were to become unlawful, it would then be per­miss­ible to dis­crim­in­ate against Jews on the basis that they had pre­vi­ously eaten kosher meat, or par­ti­cip­ated in a brit milah ceremony, even if at the time they had done so such activ­it­ies were lawful.  This would be a harsh and unfair, and probably unin­ten­ded, con­sequence of the Bill as presently worded. Religious activity that was lawful at the time it occurred should expressly be deemed to be included in the meaning of “religious belief or activity”.

More broadly, the lim­it­a­tion of pro­tec­tion against dis­crim­in­a­tion to “lawful” religious activ­it­ies does open up the potential for abuse. The pro­tec­tion would cease if, for example, a State or Territory gov­ern­ment, or a local Council, were to come under the control or influence of an extremist group with an anti-religious agenda and which passed laws banning certain activ­it­ies which might be regarded as core religious behaviour of a par­tic­u­lar faith community.

A possible solution would be to add a provision to clause 5 that for the purposes of the Bill a religious activity is lawful unless it involves the com­mis­sion of a serious offence within the meaning of clause 27(2) ie “an offence involving harm (within the meaning of the Criminal Code), or financial detriment, that is pun­ish­able by impris­on­ment for 2 years”.

It should also be made clear that the pre­ser­va­tion of State and Territory legis­la­tion in clause 29(3) of the Bill does not extend to local Council by-laws.

Part 4

Persons may state their religious beliefs

Clause 41(1) of the Bill provides that a statement of religious belief does not con­sti­tute dis­crim­in­a­tion under Com­mon­wealth, state or territory anti-dis­crim­in­a­tion laws and does not con­tra­vene sub­sec­tion 17(1) of the Tasmanian Anti-Dis­crim­in­a­tion Act 1998.

This provision will mean that persons cannot be found to have dis­crim­in­ated against others under any anti-dis­crim­in­a­tion law for merely express­ing their genuinely held religious beliefs in good faith. This could include, for example, merely stating a biblical view of marriage or an atheist view on prayer.

The provision is intended to address the kind of problem created when Tasmania’s Catholic Arch­bish­op Julian Porteous was accused of behaving unlaw­fully by cir­cu­lat­ing Catholic schools with material spelling out the Catholic view on marriage in a manner which LGBTIQ people said dis­paraged them in a manner that con­tra­vened sub­sec­tion 17(1) of the Tasmanian Anti-Dis­crim­in­a­tion Act 1998.

Clause 41(1) of the Bill seems to rule out similar material being chal­lenged in the future under sub­sec­tion 17(1) of the Tasmanian legis­la­tion. However, Clause 41(1) of the Bill does not protect state­ments that are malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the com­mis­sion of a serious criminal offence. (See clause 41(2)).

Potential problem areas regarding state­ments of religious belief

LGBTIQ people argue that these pro­vi­sions in the Bill would make it easier for others to publicly disparage them in the name, or under the guise, of religious belief.

Clause 41(1) does clearly over-ride the specific terms of sub­sec­tion 17(1) of the Tasmanian Anti-Dis­crim­in­a­tion Act 1998.  That sub­sec­tion was ori­gin­ally enacted to prohibit “conduct which offends, humi­li­ates, intim­id­ates, insults or ridicules another person” on the basis of gender “in cir­cum­stances in which a reas­on­able person…would have anti­cip­ated that the other person would be offended, humi­li­ated, intim­id­ated, insulted or ridiculed”. The sub­sec­tion was later amended to prohibit such conduct on the basis of 12 other attrib­utes, including race, sexual ori­ent­a­tion, religious belief or affil­i­ation and religious activity.  By over-riding the sub­sec­tion, the level of legal pro­tec­tion it provides to various groups is reduced.

On the other hand, no provision that is com­par­able to sub­sec­tion 17(1) of the Tasmanian Anti-Dis­crim­in­a­tion Act 1998 is found in any other State or Territory legis­la­tion.  All other State and Territory Anti-Dis­crim­in­a­tion Acts prohibit incite­ment of hatred, serious contempt and severe ridicule on the basis of race and other attrib­utes, as does section 19 of the Anti-Dis­crim­in­a­tion Act in Tasmania.  Section 17 is therefore very much an outlier provision.  The only other provision which prohibits conduct in similar terms to sub­sec­tion 17(1) is section 18C of the Racial Dis­crim­in­a­tion Act which is limited in its applic­a­tion to the attribute of race and which has been inter­preted by the courts as being limited to situ­ations where the offence, insult, humi­li­ation or intim­id­a­tion is found by a court to have “profound and serious effects, not to be likened to mere slights”.  No such lim­it­a­tion applies with regard to sub­sec­tion 17(1) of the Tasmanian Anti-Dis­crim­in­a­tion Act 1998.

One little-noticed potential benefit in the Bill for LGBTIQ and other vul­ner­able groups arises from the use of the word “vilify” in clause 41(2), and also in clause 8(4)(b), which is discussed below.

The word “vilify” has not been defined in the Bill, which means that a court would likely interpret it in accord­ance with its ordinary, dic­tion­ary meaning.  Most dic­tion­ar­ies seem to define “vilify” as involving the sub­jec­tion of a person or group to severe dis­par­age­ment that is not fair and that damages their repu­ta­tion.  This would appear to be easier to prove than incite­ment of hatred, serious contempt and severe ridicule, as is currently required by all other State and territory laws.

On balance, therefore, the Bill appears to mar­gin­ally lower the level of legal pro­tec­tion in Tasmania for vul­ner­able groups against public dis­par­age­ment, but to increase it qual­it­at­ively in the other States and in the Ter­rit­or­ies.

Part 5

Pro­tec­tion of persons of faith in their employ­ment

Clause 8 of the Bill defines and prohibits indirect dis­crim­in­a­tion on the ground of religious belief or activity, that is, “where an appar­ently neutral condition, require­ment or practice has the effect of dis­ad­vantaging people who have or engage in a par­tic­u­lar religious belief or activity” (Explan­at­ory Memor­andum, para 106)

The example given in the Explan­at­ory Memor­andum (para 109) is “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”.

Clause 8 also deals with rules imposed by employers, via company policy or con­trac­tu­al terms, on the conduct of employees as part of the employees’ con­di­tions of employ­ment, such as dress codes and codes of conduct (“employer conduct rules”).  To be lawful, these rules must be “reas­on­able” in all the cir­cum­stances and after weighing up various con­sid­er­a­tions set out in clause 8(2). If any of these rules are not reas­on­able in all the cir­cum­stances, and would operate so as to limit dis­pro­por­tion­ately the ability of the employee to have or engage in their religious belief or activity, then the rules would to that extent be unlawful.

For example, a dress code which prohibits employees from wearing any form of religious dress, when such a pro­hib­i­tion is not related to the require­ments of their job, or which prohibits them from wearing religious dress at all times while in the workplace, could dis­pro­por­tion­ately limit the ability of employees to engage in their religious activity, and therefore could be held to be unreas­on­able – (Explan­at­ory Memor­andum, para 119). That dress code would be unlaw­fully dis­crim­in­at­ory and therefore invalid.

An important qual­i­fic­a­tion appears in clause 31(2) of the Bill. It would not be unlawful for a person to dis­crim­in­ate against another person on the ground of religious belief or activity in employ­ment if the other person is unable to carry out the “inherent require­ments” of the employ­ment because of their religious belief or activity.  (See Part 2 section (iii) above).

Clause 8(3) of the Bill would prevent large employers (with revenue exceeding $50 million) from imposing “standards of dress, appear­ance or behaviour which would have the effect of restrict­ing or pre­vent­ing employees from making state­ments of religious belief outside of work. If com­pli­ance with such standards is not necessary to avoid unjus­ti­fi­able financial hardship, these standards will not be reas­on­able and therefore will con­sti­tute unlawful dis­crim­in­a­tion” – (Explan­at­ory Memor­andum, para 28).

This provision is intended to prevent a large employer from taking action against an employee similar to the sacking of Rugby player Israel Folau by the Aus­trali­an Rugby Union when, outside of work, he sent out an Instagram post pro­claim­ing that hell awaits “drunks, homo­sexu­als, adulter­ers, liars, for­nic­at­ors, thieves, atheists and idolaters”, thereby allegedly breaching the Pro­fes­sion­al Players’ Code of Conduct.

Clause 8(3) of the Bill may deem an employer conduct rule of the kind that was used against Israel Folau in response to his statement of belief to be unreas­on­able and therefore unlawful for a large employer, “unless com­pli­ance with the rule by employees is necessary to avoid unjus­ti­fi­able financial hardship to the employer”.

Further, clause 8(4) says that clause 8(3) will not apply to assist an employee if the statement of belief in question is “malicious, or likely to, harass, vilify or incite hatred or violence against another person or group of persons” or would reas­on­ably be seen to be “coun­selling, promoting, encour­aging or urging conduct that would con­sti­tute a serious offence”.

Potential problem areas regarding employ­ment pro­tec­tions

The expres­sion “unjus­ti­fi­able financial hardship” is not defined in the Bill. Pre­sum­ably it would include demon­strable damage of a sub­stan­tial kind to the employer’s brand or the like­li­hood of sig­ni­fic­ant financial loss.

Per­mit­ting people to suffer religious dis­crim­in­a­tion in their employ­ment simply because their opinions about religion, expressed out of hours,  would cause a large employer unjus­ti­fi­able financial hardship, seems alien to Australia’s tradition of a ‘fair go’.

There is also a larger question of principle as to whether the personal freedom of employees to express their religious beliefs outside the work envir­on­ment, without facing potential retali­at­ory action by their employer, should depend on the financial size of the employer, or the potential financial con­sequences for the employer.

Both the “unjus­ti­fi­able financial hardship” exception for large employers and the lim­it­a­tion of the pro­vi­sions of clause 8(3) to large employers should therefore be recon­sidered.

Part 6

Pro­tec­tions for health prac­ti­tion­ers

There are specific pro­tec­tions for health prac­ti­tion­ers clauses 8(5) and (6) which seek to prevent those who govern the activ­it­ies of such prac­ti­tion­ers from imposing a “conduct rule” pre­vent­ing them from con­scien­tiously objecting to providing certain health services.

Potential problem areas regarding pro­tec­tions for health prac­ti­tion­ers

Clause 8(5) provides that if there is a State or Territory law which allows con­scien­tious objection, then that law will apply, not the pro­vi­sions of the Bill.  It seems that the Bill will only assist a health prac­ti­tion­er operating in a State or Territory that has no law on the topic.  Thus, religious medical prac­ti­tion­ers who object, for example, to the Victorian law on abortion (which seems to require a formal “referral” of a patient seeking an abortion to someone who will carry it out), will not be able to rely on the pro­tec­tions in clauses 8(5) and 8(6) of the Bill.

Recom­mend­a­tions

1. The timing of the release of the ALRC Report should be brought forward to as early a date as possible, and no later than the date ori­gin­ally set, namely 10 April 2020. Altern­at­ively:

• the gov­ern­ment should announce that the Report will be released, and any con­sequent legis­lat­ive reform will be enacted, during the life of the present par­lia­ment; and
• a provision should be added to the Bill to the effect that a review of its pro­vi­sions will commence upon release of the Report and it will be completed, and any con­sequent legis­lat­ive reform will be enacted, during the life of the present par­lia­ment. 

2. Add a provision to clause 10(1) of the Bill which states that the standard of reas­on­able­ness for determ­in­ing whether conduct may “reas­on­ably” be regarded as being in accord­ance with the doctrines, tenets, beliefs or teachings of a religion, will be that of a reas­on­able person who is observant in that religion or a denom­in­a­tion or stream of that religion. 

3. In clause 5, add a defin­i­tion of “religion” which incor­por­ates the case law on the meaning of that expres­sion, and which specifies that a religion includes a denom­in­a­tion or stream of a religion.

4. In clause 5, add a defin­i­tion of “com­mer­cial activ­it­ies” which refers to the provision of goods or services, or the making available of facil­it­ies, in return for a com­mer­cial payment. 

5. Remove the bracketed words in para­graphs (b) and (c) in clause 10(1) of the Bill, and add a new sub­sec­tion to clause 10 to the effect that the pro­tec­tion extended to religious bodies does not extend to their com­mer­cial activ­it­ies except to the extent necessary to prevent their facil­it­ies from being used in a manner that detracts from their giving effect to, or is incon­sist­ent with, their religious ethos.

6. Add a provision to the defin­i­tion of “religious belief or activity” in clause 5 to specify that the time for gauging whether a religious activity is “lawful” is the time when the activity occurred.

7. Add a provision to the defin­i­tion of “religious belief or activity” in clause 5 to the effect that for the purposes of the Bill a religious activity is lawful unless it involves the com­mis­sion of a serious offence within the meaning of clause 27(2) ie “an offence involving harm (within the meaning of the Criminal Code), or financial detriment, that is pun­ish­able by impris­on­ment for 2 years”. 

8. Add a provision to Clause 29(3) to the effect that the pre­ser­va­tion of State and Territory legis­la­tion does not extend to local Council by-laws. 

9. In clause 5, add a defin­i­tion of “vilify” for the purposes of clauses 8(4)(b) and 41(2). 

10. Both the “unjus­ti­fi­able financial hardship” exception for large employers and the lim­it­a­tion of the pro­vi­sions of clause 8(3) to large employers should be recon­sidered.

Contact
Peter Wertheim AM | co-CEO
ph: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au