Episode 232 – From Russia With Love

Mark joins us in the studio. We start by bemoaning the latest draft of the Religious Discrimination Bill and then delve into all things Russian.

The Religious Discrimination Act – 2nd Draft

The new Bill makes it clear the religious organisations may “preference” staff who share their faith, and in some cases preference those to whom their services are provided, if there is a good faith religious reason for doing so. The definition of a good faith reason has been expanded and the types of religious organisations that are protected has been expanded.

Employment Discrimination

Bill Clinton once said “It’s the economy, stupid”.

The Fist has been saying “It’s about employment, stupid”.

The secular movement totally missed the point and was distracted by “Hate Speech” and Falou. As evidence look no further than Fiona Patten at the Press Club. Maybe now, people will start talking about employment discrimination.

Hate speech comes a distant third after “supply of service” issues.

But we’re fucked. Remember the survey result?

The conservative government full of religious nut bags doesn’t care about secularism and doesn’t care about popular opinion.

The Draft Bill

Here is a link.

11  Religious bodies may act in accordance with their faith etc.

(1)  A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.

Note:          This subsection does not permit conduct that is otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984.

(2)  Without limiting subsection (1), conduct mentioned in that subsection includes giving preference to persons of the same religion as the religious body.

(3)  A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.

Note:          This subsection does not permit conduct that is otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984.

(4)  Without limiting subsection (3), conduct mentioned in that subsection includes giving preference to persons of the same religion as the religious body.

(5)  Religious body means:

(a)  an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or

(b)  a registered public benevolent institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or

(c)  any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities);

but does not include an institution that is a hospital or aged care facility, or that solely or primarily provides accommodation.

(6)  This section applies despite anything else in this Act.

From The law and Religion Blog

In RDB1 there was no special arrangement made for the most obvious examples of religious groups which could be said to operate on a “commercial” basis, religious hospitals, aged-care facilities and religious accommodation providers. Rather than being dealt with under cl 11 (they are explicitly said not to be “religious bodies” under cl 11(5)), these organisations now have their own specific provisions in cl 32, sub-clauses (8)-(11). In effect the protection these organisations enjoy is limited to protection in making employment decisions (in which case similar principles as set out in cl 11 will apply, including the ability to “preference” employees from a specific religious tradition). But they will not be allowed to discriminate in the area of deciding which patients to serve or persons to accommodate. In general I get the impression that most religious hospitals and aged-care centres do not tend to choose patients on the basis of their religion. I am not so clear as to whether this might not impact a group that, say, wanted to run a tertiary residential college for Jewish students.

Summary of Changes

Courts’ role in matters of faith
  • Previously:
    • Some types of conduct were not discrimination if a person could reasonably consider it to be in accordance with the doctrines, tenets, beliefs and teachings of the relevant religion.
  • Now:
    • The Bill now makes clear that a court will now need to consider whether a person of the same religion as the religious body or person could reasonably consider the act to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.
    • This recognises that religious bodies have a wide margin of appreciation about how they conduct themselves in accordance with their faith, which is not well-suited to judgment by a court. The objective test in this amendment means courts will not be involved in deciding what the doctrines of a particular religion require.
Religious bodies
  • Previously:
    • Religious charities were not ‘religious bodies’ if they were solely or primarily engaged in commercial activities.
  • Now:
    • Religious charities that are registered as public benevolent institutions are ‘religious bodies’, regardless of their involvement in commercial activities.
    • Other types of religious charities will also be religious bodies, unless they are solely or primarily engaged in commercial activities.
    • Hospitals, aged care facilities and accommodation providers are dealt with separately.
‘Preferencing’ by religious bodies
  • Previously:
    • The Bill did not expressly allow the giving of preference to persons of the same religion as the religious body.
  • Now:
    • Religious bodies are now expressly able to give preference to persons that share their religion (compared with people not of that religion).
Conduct to avoid injury to religious susceptibilities
  • Previously:
    • The Bill did not provide that conduct ‘to avoid injury to religious susceptibilities’ of adherents of a faith was permitted.
    • This expression is used in other Commonwealth legislation.
  • Now:
    • The Bill now expressly provides that religious bodies do not discriminate by engaging in conduct to avoid injury to the religious susceptibilities of adherents of their faith.
    • This aligns with existing provisions in the Fair Work Act 2009, Age Discrimination Act 2004 and Sex Discrimination Act 1984.
Religious hospitals, aged care and accommodation providers
  • Previously:
    • Religious hospitals, aged care facilities and accommodation providers could not make staffing decisions on the basis of faith.
  • Now:
    • Religious hospitals, aged care facilities and accommodation providers can take faith into account in staffing decisions.
    • This includes giving preference to employees of the same religion as the relevant facility (when compared with people not of that religion).
    • This will ensure these bodies can preserve their ethos through staffing decisions.
Religious camps and conference sites
  • Previously:
    • There was no specific exception allowing religious camps and conference centres to take faith into account when hiring out their campsites.
  • Now:
    • Religious camps and conference centres will now be able to take faith into account when deciding whether to provide accommodation, in accordance with a publicly available policy.
    • This includes giving preference to people or groups who are of the same faith as the camp or conference centre.
    • This reflects the unique history and status of religious camps and conference centres.
Health practitioner conduct rules
  • Previously:
    • Conscientious objection provisions applied to a broad list of professions drawn from existing law.
  • Now:
    • The conscientious objection provisions now expressly make clear that they do not permit discrimination (but relate to rules that apply to health practitioners at work). An objection must be to a procedure, not a person.
    • The list of health professions has been narrowed to medicine, midwifery, nursing, pharmacy and psychology.

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