Rights and Equal Opportunity Commission Act 1986 (Cth): its application
to religious freedom and the right to non-discrimination in employment
This is an
information paper only. It is intended to provide general guidance. It
is not a legally binding document and is not a substitute for independent
legal advice. It is limited to the role and function of the Human Rights
and Equal Opportunity Commission as contained in the legislation establishing
The paper has
been prepared after extensive consultations with interested parties whose
views have been taken into consideration in the finalisation of the paper.
document (58K) or PDF
The rights to freedom
of religion and belief and to freedom from discrimination on the basis
of religion are highly valued in Australia and have been protected constitutionally
and legislatively by the Commonwealth in Section 116 of the Commonwealth
Constitution(1), the Human Rights & Equal Opportunity
Commission Act 1986 (Cth) ("the HREOCA"), the Racial Discrimination
Act 1975 (Cth)(2) and the Workplace Relations
Act 1996 (Cth) and by several States and Territories in anti-discrimination(3)
and Commonwealth and State industrial relations legislation.
This paper addresses
both the right of individuals and religious organisations to practise
and express their religion and the right of individuals not to be discriminated
against because of their religious beliefs (or non-belief) in employment
only within the context of the HREOCA. The protection of those rights
under other legislative enactments and in other contexts are beyond the
scope of this paper.
This paper makes
reference to a number of international treaties and declarations. These
international instruments do not automatically form part of Australia's
domestic law. However, they have important implications for Australian
law, some of which are explained in this paper.
The jurisdiction and complaint-handling process of the Human Rights and
Equal Opportunity Commission
How the right to religious freedom and belief is addressed in the HREOCA
How the right to non-discrimination in employment on the ground of religion
is addressed in the HREOCA (including the inherent requirement and religious
and complaint-handling process of the Human Rights and Equal Opportunity
The Commission administers
four different laws. These laws are the:
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Disability Discrimination Act 1992
- Human Rights and Equal Opportunity Commission Act 1986.
The Human Rights
and Equal Opportunity Commission Act 1986 provides the statutory schema
for the Commission to consider :
- allegations that an act or practice of the Commonwealth is inconsistent
with any human right as defined in section 3 of HREOCA (Part II Division
- allegations of discrimination in employment or occupation based on
the grounds of religion, political opinion, social origin, age, criminal
record, sexual preference or trade union activity. (Part II Division
- allegations of unlawful discrimination (under the Disability Discrimination
Act 1992 (Cth), Racial Discrimination Act 1975 (Cth)
and Sex Discrimination Act 1984 (Cth)) on the basis of
disability, race, or sex in employment, education, the provision of
goods and services and a range of other fields of public life (Part
Matters that are
the subject of complaint under Part II Division 3 and Part II Division
4 of the HREOCA are not unlawful. The difference between these sections
and Part IIB of the HREOCA is that if the President terminates
a complaint of sex, race or disability discrimination the complainant
may proceed to the Federal Court or Federal Magistrates Service to have
the matter heard and determined.
The complaint handling
process in relation to allegations under Part II Division 3 and 4
is fully described in Appendix A. In brief the process is as follows:
The President may
either decide not to continue to inquire into a complaint for a reason
set out in the HREOCA, or it may conciliate the complaint(4),
or may, after further inquiry, find that the allegations of discrimination
or breaches of human rights are substantiated, or unsubstantiated. If
the President finds that a complaint is substantiated, the President must,
after giving notice of the findings to the respondent, report to the Attorney-General
concerning the President's findings, reasons and any recommendations.
This Report must be tabled in Parliament. This process may be the subject
of judicial review.
This Paper concerns
only the inquiry functions of the Commission under Part II Divisions 3
the right to religious freedom addressed in the HREOCA?
One of the Commission's
functions under section 11(1)(f) of the HREOCA is to inquire into and
attempt to conciliate allegations that an act or practice of the Commonwealth
is inconsistent with any human right. In furtherance of this, Part II
Division 3 provides that a complaint may be made alleging that an act
or practice is inconsistent or contrary to any human right (s.20(1)(b)).
"Human rights" are defined in s.3 of HREOCA to mean the rights
and freedoms recognised in the international Instruments which are declared
or scheduled to the HREOCA(5).
Two of the international
instruments which are scheduled to the HREOCA have special relevance o
the freedom of religion and belief:
- the International Covenant on Civil and Political Rights (1966)
('the ICCPR") and
- the Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief (1981) ("the Religion
The ICCPR provides
in article 18 that:
- Everyone shall have the right to freedom of thought, conscience
and religion(7). This right shall include freedom
to have or adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and
- No one shall be subject to coercion which shall impair his freedom
to have or adopt a religion of his belief or choice.
- Freedom to manifest one's religion or beliefs may be subject only
to such limitations as are prescribed by law and are necessary to protect
public safety, order, health, or morals or the fundamental rights and
freedoms of others.(8)
- The States Parties to the present Covenant undertake to have respect
for the liberty of parents and, when applicable, legal guardians to
ensure the religious and moral education of their children in conformity
with their own convictions.
The ICCPR also provides
- advocacy of religious hatred which amounts to incitement to discrimination,
hostility or violence must be prohibited by law (article 20);
- everyone is entitled to equality before the law and equal protection
of the law without discrimination on the ground of religion among other
grounds (article 26); and
- minority groups are entitled to profess and practise their own religion
The Religion Declaration prohibits unintentional and intentional
acts of discrimination and defines discrimination in article 3 as:
Any distinction, exclusion, restriction or preference based
on religion or belief and having as its purpose or as its effect nullification
or impairment of the recognition, enjoyment or exercise of human rights
and fundamental freedoms on an equal basis.
Article 6 of the
Religion Declaration stipulates that the religious community's joint or
shared expression of its beliefs is protected equally with the individual's
right and protects manifestation of religion or belief including, but
not limited to,
- worshipping and assembling, and maintaining places for this purpose
- establishing and maintaining charitable or humanitarian institutions
- practising religious rites and customs
- writing and disseminating religious publications
- teaching of religion and belief
- soliciting voluntary financial support
- training and appointment of religions leaders in accordance with
the requirements and standards of the religion or belief
- observing religious holidays and ceremonies
- communicating with individuals and communities on matters of religion
The complaint mechanism
under section 20(1) could be utilized, for example, when an individual
or group complains that the Commonwealth, or an agency of the Commonwealth
performed an act or practice which was somehow inconsistent with or contrary
to their right to (for example) freedom of religious expression, solicit
financial support, build and/or maintain places of worship etc.,
the right to freedom from discrimination in employment on the basis of
religion addressed in the HREOCA?
The rights of individuals
and religious groups to act in accordance with their beliefs free from
interference by the government have often been balanced against prohibitions
on discrimination in employment based on religion or belief. Australia's
international obligations in this regard are grounded in the International
Labour Organisation Discrimination (Employment and Occupation) Convention
1958 ("ILO Convention 111")(9) which is scheduled
to the HREOCA.
ILO 111 specifically
prohibits discrimination on the ground of religion in employment and occupation
(article 1.1). It also provides that discrimination on the ground of religion
may be exempt in relation to employment of people by religious institutions
where such discrimination is required by the tenets and doctrines of the
religion, is not arbitrary and is consistently applied or where religion
is "an inherent requirement of a particular job" (article 1.2). The terms
"Employment or occupation" include access to vocational training, access
to employment and to particular occupations, and terms and conditions
of employment (article 1.3).
In addition, in
relation to the freedom from religious discrimination in employment, the
- guarantees the enjoyment of human rights without distinction of any
kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status
- provides that everyone is equal before the law. It requires that
everyone be guaranteed equal and effective protection against discrimination
Part II Division
4 of the HREOCA confers functions on the Commission in relation to the
investigation of complaints of discrimination in employment or occupation
on a prescribed ground (including religion) in pursuance of ILO 111.
For the purpose
of Part II Division 4, "discrimination" is defined in s.3 of HREOCA as
"Discrimination, except in Part IIB,
(a) any distinction, exclusion or preference
made on the basis of race, colour, sex, religion, political opinion,
national extraction or social origin that has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation;
(b) any other distinction, exclusion or preference
(i) that has the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation;
(ii) has been declared by the regulations to constitute discrimination
for the purposes of this Act; but does not include any distinction,
exclusion or preference:
(c) in respect of a particular job based
on the inherent requirements of the job; or
(d) in connection with employment as a member
of the staff of an institution that is conducted in accordance with
the doctrines, tenets, beliefs or teachings of a particular religion
or creed, being a distinction, exclusion or preference made in good
faith in order to avoid injury to the religious susceptibilities of
adherents of that religion or that creed."
Unlike the Racial
Discrimination Act 1975 (Cth) and the Sex Discrimination Act
1984 (Cth), the Human Rights and Equal Opportunity Commission Act
1986 (Cth) does not contain separate prohibitions on direct and indirect
discrimination. However, Justice Katz of the Federal Court held in Commonwealth
of Australia v Human Rights and Equal Opportunity Commission and Hamilton
 FCA 1854 that the definition of discrimination in section 3
of the HREOCA encompassed both direct and indirect discrimination, notwithstanding
that it does not expressly refer to the distinction.
An example of what
is commonly understood as "direct discrimination" would be where religion
is the reason for refusing to hire an applicant (and neither the inherent
requirement or religious susceptibilities exception applies).
manufacturer advertised for a new storeman. One suitable job applicant
was refused employment when the interviewing manager discovered he was
a Jehovah's Witness.
An example of what
is commonly understood as "indirect discrimination" would be where there
is a requirement, rule, policy or practice that appears to be the same
for everyone but has an unequal and disproportionate effect on one particular
group and is not a reasonable requirement even if there is no intention
to discriminate. This sort of discrimination may occur when employers
are inflexible about making appropriate adjustments to allow for employees'
religious practices which do not conform to the pattern of most employees
and neither the inherent requirement or religious susceptibilities exception
Example: A rule that no employee may leave work before
5 pm. This rule affects Orthodox Jews in winter because they must leave
work with enough time to reach home before sundown to observe the Sabbath.
Orthodox Jews who are refused flexible scheduling could be forced to choose
between their religion and their jobs.
If a complaint is
made against a religious or non-religious organisation that it made a
distinction on the basis of the religious belief of a job applicant or
employee, that institution may be able to argue that the distinction,
although based on a proscribed ground, does not breach the requirements
of the Act if it is a distinction in respect of a particular job based
on the inherent requirements of the job.
may also be able to avail themselves of a second exception. Section 3(d)
HREOCA provides that a distinction on the basis of the religious belief
of a job applicant or employee although based on a prescribed ground,
does not breach the requirements of the Act if it is a distinction in
connection with employment as a member of the staff of an institution
that is conducted in accordance with the doctrines, tenets, beliefs or
teachings of a particular religion or creed, being a distinction, exclusion
or preference made in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or that creed.
Not all distinctions,
exclusions and preferences are discriminatory. Measures taken by an employer
based on the inherent requirements of a particular job are not discriminatory.
The inherent requirements
of a particular job include not only the duties of the employee but also
the circumstances in which the particular employment is to be carried
An example of where
this exception may be raised is when an organisation requires that an
applicant must be a practising member of a particular religious group.
For an attribute
such as a particular religious belief or adherence to a particular religious
faith to be an inherent requirement of the job, an organisation should
be able to demonstrate:
- why an individual needs to possess that particular belief to be able
to perform the duties of that particular position; for example by reference
to the duty statement of that position, the expectations in the work
culture or environment, the organisation's Mission Statement, the interplay
of the Mission Statement and management style and expectations.
- why the individual was unable to perform the duties of that particular
position; for example, why an individual who is sympathetic to the values
of the organisation and could demonstrate a capacity to operate in a
manner consistent with them would be unable to perform the position.
This exception only
applies to religious institutions. There has been no direct judicial consideration
of this exception under the HREOCA. It permits "a distinction, exclusion
or preference in connection with employment as a member of the staff of
an institution that is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed, being a distinction,
exclusion or preference made in good faith in order to avoid injury to
the religious susceptibilities of adherents of that religion or that creed".
There are three elements
to this exception:
- The employer institution is conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed.
- The religious distinction, exclusion or preference is imposed in
- It is imposed to avoid injury to the religious susceptibilities of
adherents of that religion or that creed.
In relation to the
first element, the employer should be able to show that the institution
is conducted in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion or creed. The exception cannot be claimed merely
on the basis that the organisation or persons associated with it have
certain religious views or affiliations. The organisation must be one
in which the religious doctrines, tenets, beliefs and teachings inform,
or are required for, the day to day operation of the organisation. This
is a question of fact and degree and will depend on the particular case
In relation to the
second element, the employer should show that the religious distinction
was made in good faith. Clearly, a distinction made in bad faith does
not gain the protection of the section. This would be the case where the
distinction is applied capriciously, arbitrarily or randomly. It would
also be the case where a distinction, ostensibly made on religious grounds,
is really based on extraneous personal or other reasons that have no basis
in religious doctrine or teaching.
The "good faith"
element must be read in conjunction with the final element: the distinction
should be made in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed. This is not an
entirely subjective requirement. Religious organisations clearly can determine
what would injure the religious susceptibilities of adherents of that
religion or creed. However, there should be some objective evidence that
the selection of an employee who is not of a particular religious persuasion
offends the doctrines, tenets, beliefs or teachings of that religion.
When advertising a position
or promotion, all employers should:
- identify the inherent or essential requirements of every position
in the organisation
- ensure that job advertisements and other selection documents are
designed in accordance with the inherent requirements of the particular
religious organisations, who regard membership of a particular religious
group, evidence of church attendance or some other religious qualification
as an inherent requirement of any position should:
- only consider setting a religious criterion in the light of the requirements
of individual positions and not as a blanket criterion for all positions.
- ensure that the religious qualification is an inherent requirement
of the position in that it is necessary in order for the individual
to effectively discharge the duties of the position. To do this, employers
- analyse why
an individual needs to possess that particular religious qualification
to be able to perform the duties of that particular position; for
example by reference to the duty statement of that position, the
expectations in the work culture or environment, the organisation's
Mission Statement, the interplay of the Mission Statement and management
requirements, style and expectations.
- evaluate whether
an individual who is sympathetic to the values of the organisation
and could demonstrate a capacity to operate in a manner consistent
with them would be unable to perform the duties of that particular
- analyse why
employing staff and considering setting a religious criterion to avoid
offending the religious susceptibilities of adherents should:
- clearly identify the established doctrines and tenets of the religion
on which the organisation is based
- consider whether these doctrines and tenets are central to the day
to day work of the organization
- ensure that the religious criterion is necessary to avoid offending
the religious susceptibilities of adherents of that faith; and
- ensure the criterion is set in good faith to avoid offending the religious
susceptibilities of adherents of that faith.
For further information
you would like to obtain further information about issues in this paper
Rights and Equal Opportunity Commission
GPO Box 5218
Sydney NSW 2001
Complaints Infoline: 1300-656-419
Home page: http://www.humanrights.gov.au
Under Part II of
the HREOCA the Commission may inquire into complaints that either:
- allege discrimination in employment based on the person's religion.
The Commission can accept complaints about discrimination in employment
against Commonwealth, State, Territory and local government employers
and by private sector employers; and/or
- allege that an act or practice carried out by the Commonwealth, on
behalf of the Commonwealth or by an authority of the Commonwealth, is
inconsistent with the right to freedom of religion.
The complaints process
is flexible and each case is carefully assessed to determine the best
way to handle it. Generally, however, most complaints are dealt with in
the following way:
All complaints are
assessed by the Director, Complaint Handling. The Commission tries to
get an initial idea of the nature of the complaint and decides whether
it is covered by the law. The Director may make an initial recommendation
to commence the inquiry.
The complaint is
then forwarded to the President of the Commission (or Delegate) for consideration.
The President notes receipt of the complaint and approves the recommendation
to commence inquiry.
At the next step,
Commission staff may contact the complainant for further information.
After that the Commission will write to the respondent and seek its comments
on the complaint and ask particular questions relating to the circumstances
of the complaint. The respondent will also be asked to make submissions
in relation to any exemption, exception or defence that may apply.
Once all the relevant
information and documentation is obtained the complaint will be reviewed
and the President (or Delegate) will decide if:
- The complaint should be declined for any of the reasons outlined
in the law - ie the complaint is lacking in substance, or the complaint
has been adequately dealt with by another statutory authority, or, in
relation to a complaint of discrimination in employment, that an exception
applies and therefore the alleged acts are not discriminatory.
- Attempts should be made to try and settle the complaint through conciliation
whereby both parties have an opportunity to resolve the complaint on
If the complaint
is declined, the President advises the complainant of this in writing
and explains the reasons. The respondent will also be notified of the
The parties may then
access rights of review available to them in the Federal Court.
If a complaint that
has not been declined for one of the statutory reasons and is considered
to be not conciliable the President may undertake further inquiry. The
President makes a preliminary finding which is forwarded to the parties
who are invited to make submissions, either orally or in writing, in relation
to the complaint.
If, after receipt
of these submissions and further consideration of the matter, the President
(or Delegate) finds that the practice does not constitute discrimination
or that there has been no human rights breach the President (or Delegate)
will issue a report containing her findings and reasons to the parties
but not to the Attorney- General.
However if, after
this further inquiry, the President (or Delegate) finds that the practice
does constitute discrimination or that there has been a human rights
breach the President (or Delegate) will serve a notice on the respondent
setting out the findings, the reasons for the findings and any recommendations
as a result of the findings. The respondent will be given 28 days to advise
what action they have taken or propose to take in response to the findings
Again the parties
may then access rights of review available to them in the Federal Court.
After receipt of
this advice from the respondent the President (or Delegate) will then
forward a report to the parties and to the Attorney-General which
will include her findings and recommendations together with details of
any action taken or proposed to be taken by the respondent as a result
of those findings or recommendations.
must table this Report in Parliament.
"The Commonwealth shall not make any law for establishing any religion,
or for imposing any religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Commonwealth".
The Racial Discrimination Act 1975 (Cth) ("RDA") provides some
limited protection against discrimination on the basis of religion. If
a religious group can also be classified as an "ethnic" group, the RDA
may cover direct and indirect discrimination and vilification under the
racial hatred provisions of the Act. Even if a religious group cannot
be classified in that way, the RDA arguably covers discrimination on the
basis of religion in certain circumstances such as indirect race discrimination.
The Equal Opportunity Act 1995 (Vic), the Anti-Discrimination
Act 1991 (Qld), the Equal Opportunity Act 1984 (WA), the
Discrimination Act (ACT) 1991, the Anti-Discrimination Act 1996
(NT).The Anti-Discrimination Act 1977 (NSW) prohibits discrimination
on the ground of "race" which also includes ethno-religious background.
The definition of "complaint" in section 3 of the HREOCA provides that:
"complaint" except in Part IIC, means a complaint lodged under Division
1 of Part IIB". This section was inserted by the Human Rights Legislation
Amendment Act 1999 (No 1) ("the Amendment Act") which inserted
new provisions into the HREOCA for handling complaints of unlawful discrimination.
The definition appears to relate to complaints of "unlawful discrimination"
lodged under that Part. These are acts, practices, or omissions that are
unlawful under the Racial Discrimination Act, the Sex Discrimination
Act or the Disability Discrimination Act. There was no analogous
section in the HREOCA prior to the enactment of the Amendment Act and
it appears that the definition of "complaint" in section 3 is meant to
apply to complaints under Division 1 of Part IIB only. While the definition
is not explicit to this effect and, indeed, explicitly exempts Part IIC
and not Part II from its scope, the legislation read as a whole does not
make sense if "complaint" in s.20 (part II Division 3) and indeed section
32 (part II Division 4) is read according to the newly inserted definition
in section 3. In order to ensure that the complaint provisions of Part
II are not rendered otiose or absurd by a definition recently inserted
the Commission's view is that the definition in section 3 must be read
as applicable only to those parts newly inserted into the HREOCA - that
is, Parts IIB and IIC - with the explicit exception of Part IIC. This
view is confirmed by the Explanatory Memorandum for the Amendment Act
which provides that "this Part of the Schedule [which inserts the changes
to the HREOCA] makes a number of amendments to the new HREOCA to deal
with the changes to the handling of complaints of unlawful discrimination
under the DDA, the RDA and the SDA ..." (para 89).
These are: Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, Declaration of the
Rights of the Child, Declaration on the Rights of Mentally Retarded Persons,
Declaration on the Rights of Disabled Persons, and the Convention on the
Rights of the Child.
The Convention on the Rights of the Child (CROC) also prescribes that
States parties shall respect the right of the child to freedom of thought,
conscience and religion, (article 14.1) and that the State shall respect
the rights and duties of the parents and, when applicable, legal guardians,
to provide direction to the child in the exercise of his or her right
in a manner consistent with the evolving capacities of the child (article
14.2). Although the CROC and the ICCPR are not directly implemented in
Australia and do not therefore form part of Australian law, they have
been ratified by Australia and so are legally binding on Australia in
international law. They affect domestic law to the extent that where legislation
permits a discretion that discretion should be exercised in conformity
with Australia's international treaty obligations. The Religion Declaration
is not a treaty but is a valuable tool for interpreting the scope of ICCPR
The freedom of thought, conscience and religion is absolute ( i.e cannot
be derogated from ?) and covers theistic, non-theistic and atheistic beliefs,
as well as the right not to profess any religion or belief.
Although there are no limitations on the freedom to believe, the freedom
to manifest one's religion or beliefs is subject to limitations, set out
in ICCPR article 18.3. However, this limitations clause was given a restrictive
interpretation by the United Nations Human Rights Committee in General
Comment No. 22, (1993) which stated that:
may be applied only for those purposes for which they are prescribed and
must be directly related and proportionate to the specific need on which
they are predicated. Restrictions may not be imposed for discriminatory
purposes or applied in a discriminatory manner. The Committee observes
that the concept of morals derives from many social, philosophical, and
religious traditions; consequently limitations on the freedom to manifest
a religion or belief for the purpose of protecting morals must be based
on principles not deriving exclusively from a single tradition
So, unlike the freedom
of religion itself, the freedom of religious practice or 'manifestation'
can be limited by law provided the limitation is necessary to protect
public safety, order, health or morals or the fundamental rights and freedoms
Ratified by Australia in 1973. The ILO 111, like the ICCPR, is not directly
implemented in Australia and does not form part of Australian law though,
like the ICCPR, it has been ratified by Australia and is legally binding
on Australia in international law. It also affects domestic law where
legislation permits a discretion: it is accepted that discretion should
be exercised in conformity with Australia's international treaty obligations.
Justices Gummow and Hayne in X v The Commonwealth (1999) 167 ALR
updated 08 March 2006.