I, the Hon Christian Porter MP, Attorney-General of Australia, having regard to:
• The original terms of reference for a review by the Australian Law Reform Commission (ALRC) of religious exemptions Commonwealth, State and Territory anti-discrimination law that were issued on 8 April 2019
• the public release by the Commonwealth of the Religious Discrimination Bill 2019, that is intended to be passed in the current Parliamentary term, and the associated public consultation process on the terms of that Bill
• the anticipated effect of that Bill on the operation of Commonwealth, State and Territory anti-discrimination legislation
• the rights and freedoms recognised in the international agreements to which Australia is a party, in particular:
o the right to freedom of thought, conscience and religion, including the right to manifest one’s religion or belief in worship, observance, practice and teaching and the liberty of parents and guardians (where applicable) to ensure the religious and moral education of their children in conformity with their own convictions; and
o the rights of equality and non-discrimination
• the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education
• the importance of allowing religious institutions to conduct themselves in a manner consistent with their religious ethos
• the interaction between Commonwealth, State and Territory anti-discrimination laws and the desirability of national consistency in religious exceptions in those laws
ALTER the terms of reference issued to the ALRC on 8 April 2019, pursuant to subsection 20(2) of the Australian Law Reform Commission Act 1996 (Cth), to take account of the additional legislative reform to be pursued through the intended passage of the Religious Discrimination Bill 2019. The ALRC should confine its inquiry to issues not resolved by that Bill, and should confine any amendment recommendations to legislation other than the Religious Discrimination Bill.
It should inquire into, and report on, what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
• limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to reasonably conduct their affairs in a way consistent with their religious ethos; and
• remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), where such impediments continue to exist despite the enactment of the Religious Discrimination Bill 2019.
Scope of the altered reference
In undertaking this altered reference, the ALRC should include consideration of Commonwealth, State and Territory anti-discrimination laws and the Fair Work Act, but should confine its recommendations to amendments to laws existing prior to enactment of the Religious Discrimination Bill 2019.
To avoid doubt, ‘religious institutions’ for the purposes of this reference includes bodies established for religious purposes as well as educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed.
The ALRC should identify and have regard to existing reports and inquiries including:
• the Report of the Expert Panel on Religious Freedom (Religious Freedom Review), particularly recommendations 1, 5, 6, 7 and 8;
• Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129); and
• any other inquiries or reviews, including state and territory inquiries or reviews, that it considers relevant.
The ALRC should consult widely with State and Territory governments, religious institutions, the education sector, and other civil society representatives. The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review. Further, any such consultation documents should allow experts, stakeholders and the community to have the benefit of the public consultation processes that will accompany the Religious Discrimination Bill, and should take into account any amendments to the Bill resulting from those consultation processes.
Timeframe for reporting
The ALRC should provide its report to the Attorney-General by 12 December 2020.