Download Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Equal Opportunity Amendment
(Religious Exceptions) Bill 2016
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1
sets out the purpose of the Bill, which is to amend the Equal
Opportunity Act 2010 to modify the religious exceptions
in relation to the employment of a person by a religious
body or school. In particular, the Bill reinstates an
"inherent requirements test" for a religious body or school
that may seek to rely on a religious defence to discriminate
in the area of employment.
Clause 2
provides for the Bill to come into operation on a day or days to
be proclaimed, or otherwise on 1 March 2017.
Clause 3
amends section 82 of the Equal Opportunity Act 2010.
Section 82 provides for "exceptions" to unlawful discrimination
by religious bodies in certain circumstances. In accordance
with section 13 of the Equal Opportunity Act 2010, an
exception is a defence to discrimination, and the person or body
seeking to rely on it has the burden of proving that it applies.
The clause does not modify the exception in section 82(1),
which provides that the prohibitions to discrimination in the
Equal Opportunity Act 2010 do not apply to matters such as
the ordination or appointment of priests or ministers of religion,
or their training for such positions, or to the selection or
appointment of people to perform functions in relation to
any religious observance or practice.
Subclause (1) modifies the exception in section 82(2) of the
Equal Opportunity Act 2010 so that it applies to the conduct of
a religious body other than in relation to the area of employment.
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The conduct of a religious body in relation to employment is
subject to a new exception, inserted by subclause (2).
Subclause (2) inserts new subsections (3) and (4) into section 82
of the Equal Opportunity Act 2010.
New subsection (3) provides that the prohibitions to
discrimination in the Equal Opportunity Act 2010 do not apply
to anything done in relation to the employment of a person by a
religious body where conformity with the doctrines, beliefs or
principles of the religion is an inherent requirement of the
particular position, and the person's religious belief or activity,
sex, sexual orientation, lawful sexual activity, marital status,
parental status or gender identity means that the person does not
meet that inherent requirement.
New subsection (4) provides that the nature of the religious body,
and the religious doctrines, beliefs or principles in accordance
with which it is conducted, must be taken into account when
determining whether conformity with religious doctrines, beliefs
or principles is an inherent requirement of a particular position.
Clause 4
amends section 83 of the Equal Opportunity Act 2010.
Section 83 currently provides for an exception to unlawful
discrimination by a person or body that establishes, directs,
controls, administers or is an educational institution that is,
or is to be, conducted in accordance with religious doctrines,
beliefs or principles. In accordance with section 13 of the
Equal Opportunity Act 2010, the exception is a defence to
discrimination, and the person or body seeking to rely on it has
the burden of proving that it applies.
Subclause (1) modifies the exception in section 83(2) of the
Equal Opportunity Act 2010 so that it applies to the conduct
of a relevant person or body other than in relation to the area of
employment.
The conduct of a relevant person or body in relation to
employment is subject to a new exception, inserted by
subclause (2).
Subclause (2) inserts new subsections (3) and (4) into section 83
of the Equal Opportunity Act 2010.
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New subsection (3) provides that the prohibitions to
discrimination in the Equal Opportunity Act 2010 do not
apply to anything done in relation to the employment of a
person by a relevant person or body where conformity with
the doctrines, beliefs or principles of the religion is an inherent
requirement of the particular position, and the person's religious
belief or activity, sex, sexual orientation, lawful sexual activity,
marital status, parental status or gender identity means that the
person does not meet that inherent requirement. New subsection
(3) mirrors the exception in new section 82(3) (see clause 3(2)).
New subsection (4) provides that the nature of the educational
institution, and the religious doctrines, beliefs or principles in
accordance with which it is conducted, must be taken into
account when determining whether conformity with religious
doctrines, beliefs or principles is an inherent requirement of a
particular position. New subsection (4) mirrors new
section 82(4) (see clause 3(2)).
Clause 5
provides for the automatic repeal of the amending Act on
1 March 2018. The repeal does not affect in any way the
continuing operation of amendments made by the amending
Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
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