Religious discrimination bills raise concerns for aged care

The proposed religious discrimination legislation could have a significant impact on how aged care providers conduct their business and manage their staff if passed, a legal expert tells Australian Ageing Agenda.

The religious discrimination bills propose to make it illegal to discriminate both directly and indirectly on the basis of having a religious belief or not having a religious belief in certain categories of public life, said Hall & Wilcox partner Alison Choy Flannigan.

“The most relevant categories for aged care providers will be the employment of people, the provision of good and services and accommodation for the aged population,” Ms Choy Flannigan told Australian Ageing Agenda.

If passed, the legislation will impact providers across their entire business including their ability to attract and retain staff, which is already an issue for the sector, she said.

“I truly believe in empathy, multi-culturalism and being respectful but I worry that this legislation might be manipulated to have a negative effect on the community,” Ms Choy Flannigan said.

A difficulty with the draft legislation is the breadth of the definition of what religious belief is and the potential disruption that could cause aged care providers.

“It is intended to include beliefs associated with major faith traditions such as Buddhism, Christianity, Hinduism, Islam or Judaism in addition to the beliefs of smaller or emerging faiths traditions. And it also includes people who don’t believe. So you can’t discriminate on the basis they are atheist,” she said.

“The issue is not so much with those main faiths, but other more radical ones and how disruptive that could be in terms of scheduling and what their obligations are,” Ms Choy Flannigan said.

Proposal affects employee management

An employer has to prove that any condition on staff that impacts their religious belief is reasonable.

For example, said some religions have religious obligations on particular days or with methods of dress, Ms Choy Flannigan said.

Employers are up front about the work conditions such as hour and uniform requirements when offering a job and most people accept those conditions when they apply for the job, she said.

“The difficulty with this legislation is that those people who accepted those conditions can turn around and say ‘I don’t want those conditions. I want something else.’ And that would cause problems for the approved providers in terms of managing their staff.”

A lot of aged care staff are migrant workers and they may come from a number of different religions, which could cause disruption, Ms Choy Flannigan said.

That disruption could heighten existing tensions with some residents who may not be open-minded about the background of employees or their religious clothing, she said.

Bills protect statements of belief

Another concern is that all people are allowed to make statements of belief under the proposed legislation and employers cannot restrict or prevent them other than when they are performing their work, Ms Choy Flannigan said.

An employer would have to prove a statement is malicious or would harass, vilify, or incite hatred, which Ms Choy Flannigan said was a high threshold.

“I am concerned that some people may make statements on the basis of their religious belief that would not quite get to the point of being malicious, harassment, vilify or incite hatred but it would be disrespectful to other people,” she said.

“So the statement itself might not be but it would be a mantra that other people would take up to hate other people.”

This is of particular concern where the hatred is based on race, sex or sexual preference, she said.

Legislation overrides Tasmanian state anti-discrimination acts

Ms Choy Flannigan said a further area of concern is that the bills put religious beliefs on a higher priority than the other grounds for discrimination including disability, sexual orientation and gender identity.

“For me and some of the other commentators it is quite interesting to put something that is a religious belief, which is a choice, over the other discriminations” that are not choices, she said.

People choose to believe in a religion but they are born with a sex or race, she said.

Access the government’s draft legislation here.

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