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Background

Scope of the Anti Discrimination Act –Response to the Recommendations

Extension of Employment/Work Environment

Marital Status

Exceptions and Exemptions

Superannuation

Other Recommendations

DRAFT ANTI-DISCRIMINATION BILL 1999

Conclusion

MAJOR REPORT - April 2000

The NSW Anti-Discrimination Act

PART C – DRAFT ANTI-DISCRIMINATION BILL 1999

8. Drafting Comments

In reviewing the draft Bill we noted and draw your attention to some drafting problems. We have not conducted a comprehensive review of the draft Bill.

8.1. The definition of religion

The Report has quite a lengthy discussion of the proposed new ground of religion and religious beliefs. It examines several possible definitions. In particular, it commends the approach of Victorian and New Zealand legislation embracing lack of religious belief or beliefs definitionally:

“If it be correct that there are many aspects of public life in which religious beliefs are irrelevant, so, in a relatively secular society, there must be areas of public life in which the absence of any religious belief, and indeed opposition to religion, must be irrelevant.” [par.5.170]

It could be added that, more importantly, both common sense and experience suggest that if a person or group were likely to discriminate on the basis that another does not share their belief, they would frequently be as likely to do so if the person has no belief as when she or he has a different set of beliefs.

Indeed it may be difficult to separate the two. In the recent controversy surrounding the employment networks, one employer suggested that it would not employ those who were not Christians as Christians make better employees. Thus if a person holding other religious beliefs - for example beliefs of the Jewish, Hindu or Muslim faith – were refused employment this could as easily be characterised as discrimination on the basis of the absence of Christian faith as on the basis of the fact that he or she actually has another belief.

The Report notes that in Victoria the proscribed ground is identified as "a religious belief or activity".That phrase is in turn defined to mean:

(a) holding or not holding a lawful religious belief or view; or
(b) engaging in, not engaging in or refusing to engage in a lawful religious activity. [par.5.168]

However, the definition actually adopted in the draft Bill is as follows:
religion includes:

(a) holding particular religious beliefs, including traditional spiritual beliefs of Aboriginals and
Torres Strait Islanders, or
(b) engaging in particular religious practices, including traditional spiritual practices of Aboriginals and Torres Strait Islanders. (clause 18(1)) Religion is then defined as an irrelevant characteristic in the Bill.

It is arguable, but by no means likely, that once the definition of religion is imported into the discrimination sections this would have the intended result and protect religious belief and lack of religious belief or lack of a particular religious belief.

The definition as it currently stands exposes the ground to the danger of an interpretation which may effectively deny the protection of the Act in many circumstances. For example, if a person holding Christian views refused to employ a Jewish person he or she could argue that this was not done on the basis of his or her Jewish beliefs but because the potential employee lacked Christian beliefs. If this could be established, for example by showing that an atheist would not have been employed, it is very likely there would be no breach of the ADA. It also opens the possibility of anomalous decisions in that a person adhering to a nonChristian faith may be protected whilst a person professing no particular faith may be unprotected in the same circumstances - even if the two cases involved the same employer displaying the same attitude and applying it equally to all believers and nonbelievers who do not embrace his or her beliefs.

The very real danger of this sort of reasoning has been demonstrated by the judgment of the EOT in Wilson v Qantas Airways Limited (1985) EOC ¶92-141 at 76,398 where it was held that Qantas had not refused to roster a gay male couple together on the basis of marital status (being married, single, de facto) but because they were not a married or de facto (as defined) couple both working for Qantas. The respondents argument in the hypothetical example above is obviously much stronger as this is a legitimate characterisation of his or her conduct as evidenced by his or her attitude to those without religious belief.

The definition ought to be amended in accordance with the Victorian definition to ensure the effect is that which is intended.

Recommendation:
The definition of religion in clause 18 (1) to be redrafted as follows:
religion includes

(a) holding or not holding a lawful religious belief or view; or
(b) engaging in, not engaging in or refusing to engage in a lawful religious activity.

8.2. Definition of domestic status

Recommendation:
That greater clarity be given to the definition of domestic or relationship status by including the status or condition of being “in cohabitation with a person of the same or opposite sex”.

The definition (clause 18(1)) would then read:
domestic status means a person's status of being:

(a) single, or
(b) married (including in accordance with traditional laws and customs of indigenous Australians), or
(c) married but living separately and apart from one's spouse, or
(d) divorced, or
(e) widowed, or
(f) in cohabitation with a person of the same or opposite sex.

8.3. Drafting of exceptions

As discussed above, the proposed drafting of the clause 28 this may be interpreted as allowing exceptions based on personal prejudices, if genuinely held. If this clause is otherwise retained as is, it needs to be amended in order to put into effect Recommendation 84 that there be an exception to discrimination on the ground of religion on the basis of genuine occupational qualification.

Recommendation:
Clause 28(6) should provide that:

“The exceptions in subsections (1)-(5) are satisfied only if the offeror acted on a honest and reasonable belief that it was necessary to so act.”