Religious Discrimination (NT)

It is unfair to treat anyone less favourably because of their religious beliefs. However, it is only unlawful in the Northern Territory to discriminate against someone on the basis of religious belief when it happens in certain areas of life, such as the workplace, accommodation, education and when accessing goods and services. Territory law prohibits anyone in these environments from treating another person unfavourably because of their religion. In the Northern Territory, complaints under the Anti-Discrimination Act 1992 are heard by the NT Anti-Discrimination Commission.

Northern Territory law

Under section 19(m) of the Anti-Discrimination Act, it is unlawful to discriminate against a person because they practice a particular religion. A complaint on the basis of a protected attribute such as religious affiliation may be made when it occurs in the following environments:

• Work;
• Accommodation;
• Education;
• Goods, services and facilities;
• Clubs;
• Superannuation and insurance.

For example, a person experiences religious discrimination in employment when they are treated less favourably at work because of their faith. This can include not being employed in the first place, being harassed or bullied while at work, or being denied training opportunities because they conflict with religious obligations. Religious observance and dress are other areas of potential discrimination at work. For instance, an employer cannot ask an employee to remove a hijab when serving customers, or discriminate against a worker who needs to carry out reasonable religious activity during work hours.

Exemptions

The Anti-Discrimination Act does not apply to the selection, appointment, or training of ministers of religion, members of a religious order or organisation, or the appointment of priests. It is also lawful in the Northern Territory to restrict access to a building, land, or place of significance on the basis of religion. This exemption applies when discrimination is necessary to avoid offending the religious and cultural sensitivities of observants.

There is also currently an exemption for educational institutions that operate according to a religious doctrine. These institutions may discriminate against a person on the basis of religious belief or sexuality when the discrimination occurs in good faith to avoid offending members of the religion. However, the Northern Territory government recently proposed changes to prohibit religious institutions from making employment decisions based on a worker’s LGBTQI status. The draft Bill proposes to remove the exemption that allows religious schools to discriminate against LGBTQI staff, although schools could still refuse to hire staff because of their religious belief or activity. NT Attorney-General, Chansey Paech, stated that the proposed law reform would make the laws reflective of modern values and protective of the Territory’s diverse community.

Federal legislation

In the Northern Territory, both territory and federal anti-discrimination laws apply. This means that someone who has been discriminated against because of a protected attribute has two possible paths to resolution. Currently, religious faith is not a federally protected attribute. However, in some circumstances, a complaint can be made to the Australian Human Rights Commission under the “ethnic origin” protection clause of the  Racial Discrimination Act 1975.

The federal parliament recently introduced a Religious Discrimination Bill 2021 (and associated legislation) to fill the gap in existing anti-discrimination laws, and prohibit discrimination on the basis of religion. There may well be a need for federal legislative protection of religious faith, to ensure that there is no religious discrimination in work, housing and education. However, this proposed amendment has been critiqued for creating inappropriately broad legal protection for those acting out of their religious belief. Proposed Clause 12 would allow a person to use their religious belief as a defence against a discrimination claim, so long as the discrimination was based on their religious belief. Thus, this amendment would not just protect the right of a person to be free from religious discrimination, but also allow them to espouse discriminatory views about others. This would privilege religious belief over freedom from discrimination on the grounds of sex, gender identity, age, race, and sexual orientation.

In the United States, religious freedom legislation has caused instances of religious discrimination, sometimes centred around as seemly benign a topic as wedding cakes. Couples have ordered wedding cakes for same-sex weddings, and bakeries have refused these requests on the basis of religious belief. In the US, a bakery has a legal right to refuse to serve customers on the basis of religious freedom. Currently, in Australia, it is still unlawful for a bakery to refuse to make a cake for a person who identifies as a member of the LGBTIQI+ community. As a service provider, a bakery cannot discriminate on the basis of a federally and territorially protected attribute like sexual orientation. As such, a baker may not refuse to produce a cake for an LGBTQI+ customer, regardless of their religious belief. The proposed federal amendment may reverse this position, granting the bakery owner a legal right to not only deny service, but even express their religious belief that the marriage is unnatural, evil, or sordid.

Go To Court Lawyers can help if you have experienced religious discrimination in the Northern Territory or need advice on how to prevent religious discrimination in protected areas of life. Please contact our team on 1300 636 846 for advice on this or any other legal matter.