The Commonwealth Government released the exposure draft of the proposed Religious Discrimination Bill 2019 in late August, and it has generated significant public debate. Because of the complexity of the legislation, and the strong views held by many stakeholders on this issue, it has also caused a lot of confusion, with conflicting explanations of how certain provisions will work if the Bill is passed in its current form.

In this Alert, we clarify how the proposed legislation could affect aged care providers.

What is the purpose of the Bill?

There are already laws that prohibit discrimination on the basis of religion in most States and Territories in Australia. This Bill is intended to:

  • provide protection from discrimination on the grounds of religious belief or activity (filling gaps in the State-based anti-discrimination legislation in New South Wales and South Australia);
  • ensure that people can make statements of belief in good faith without suffering any negative consequences (in response to high profile cases such as Israel Folau’s dismissal);
  • allow registered health practitioners to refuse to provide health services on religious grounds; and
  • ensure that religious bodies can engage in conduct consistent with their faith.

What is the impact of the law on aged care providers generally?

The protection from discrimination in this Bill applies in relation to a range of areas, including employment, the provision of goods and services, and the provision of accommodation. If the law is implemented as the Bill currently drafted, some of the impacts are as follows:

  • Most States and Territories currently allow an organisation to implement “special measures” to remedy substantive inequality for a particular minority. That may include a provider only providing services to members of a religious group, or providing preferential services to members of that group. If the Bill is passed in its current form, these types of special measures would arguably infringe the new Federal law.
  • Staff members who make discriminatory statements which are grounded in religious beliefs will be protected from discrimination claims unless the statements are malicious, or likely to harass, vilify or incite hatred or violence against a person. By extension, that means that aged care providers will not be vicariously liable for the statements of those staff.
  • In New South Wales and South Australia it will become unlawful to refuse to provide services to people based on religion, or to impose different conditions on the provision of services to people because of their religion.
  • In New South Wales it will become unlawful to impose requirements on employees around religious clothing (for example, restrictions on staff wearing niqaab or burqa) unless the restriction is in direct compliance with a provision of another law (such as workplace safety legislation).

There are some additional changes for private sector providers with an annual revenue of at least $50 million:

  • A provider will face challenges implementing or enforcing any policy which prevents nursing staff or allied health professionals from refusing to provide services on religious grounds. Such a policy would only be enforceable if it were necessary to avoid an unjustifiable risk to the health of a person, or to the capacity of the organisation to provide the service.
  • A provider will not be able to discourage staff from making statements regarding their religious beliefs in their own time, unless the statements are malicious, or likely to harass, vilify or incite hatred or violence against another person. This would extend to protect statements that are made through social media which clearly identify to the employer of the person making the statement. While an employer can intervene if it is necessary to avoid unjustifiable financial hardship, we expect that that level of hardship will be difficult to establish.

What is the potential impact of the law on faith-based aged care providers?

For aged care services which are conducted by religious bodies, there are some additional changes. A religious body is defined to include any organisation which is conducted in accordance with the doctrines, tenets, beliefs or teachings of a religion, unless the body engages primarily in commercial activities. Having regard to the object and spirit of the Aged Care Act 1997 it is unlikely that aged care providers would be considered to engage primarily in commercial activities, particularly if they are not for profit.

  • Aged care services which are conducted by religious bodies will be able to engage in any conduct which is in good faith and which may reasonably regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the body’s religion. While this is expressed in very broad terms, we do not think this would allow a religious body to refuse to provide services to a person because of the person’s gender identity or sexuality.
  • However, it may be unlawful for an organisation to mandate that its directors or officers are of a certain faith, unless the organisation can establish that having that faith is an inherent requirement of the role.

What next?

It is important to bear in mind that this is still an exposure draft, and the public has been invited to make submissions by 2 October 2019.The Government has also indicated that it will accept submissions received after that date. Given the range of affected parties, and the political heat on these issues, there may still be significant changes to the Bill before it is introduced to Parliament.

If you are particularly concerned about the impact of the proposed Bill on your organisation, you can find out more about making a submission here.