What’s New in the Law?

Rachel Hay

Australia’s Religious Discrimination Bill

On 10 December 2019, Prime Minister Scott Morrison and Attorney-General Christian Porter unveiled the revised second draft of the religious discrimination bill. If passed, the bill will have various wide-ranging efects upon the provision of public services, particularly within healthcare, education, aged care facilities, accommodation providers and also within employment.

To name a few of the proposed provisions, health practitioners could ‘conscientiously object to provide a health service’ such as abortion or the morning-after pill on religious grounds, in spite of any professional conduct rules. Religious camps and conferences may take faith into account when selecting prospective customers. A school may require that their staf and students observe particular religious practices. Religious bodies, such as hospitals, aged care providers or accommodation providers, may ‘legitimately discriminate’ against staf during hiring processes and enforce a staf code of conduct to preserve their ‘religious ethos’. Statements of religious belief made in good faith which may ofend people will not constitute discrimination under any state, territory or federal antidiscrimination law provided that they do not harass, threaten, seriously intimidate or vilify a person or group. The draft bill has not been met without signifcant controversy. While some religious bodies have expressed support for the proposed legislation, Law Council of Australia President, Arthur Moses noted that the bill was a ‘deeply fawed piece of legislation’ and would unjustifably allow freedom of religious expression to encroach on other equally important human rights, such as protection against discrimination based on gender, disability, race and sexual orientation. Further, Moses noted that the bill narrowed existing state and federal discrimination protections, such as section 18C of the Racial Discrimination Act which prohibits speech that ‘ofends, insults or humiliates people’ based on race.

ACCC Proceedings Against Google

The Australian Competition and Consumer Commission (‘ACCC’) has commenced proceedings in the Federal Court against Google LLC and Google Australia Pty Ltd in October 2019 concerning their data collection and use practices. The ACCC alleges that Google made false and misleading representations to consumers concerning the way in which personal location data was collected. There are two Google account settings: ‘Location History’ and ‘Web and App Activity’ which collect location data when enabled. From January 2017 until late 2018, the ACCC alleges that Google breached Australian Consumer Law through on-screen representations which suggested that ‘Location History’ was the only relevant setting which might afect location data collection and use. Google failed to properly disclose that ‘Web and App Activity’ had to be disabled. ACCC Chairman Rod Sims, stated that ‘Google misled consumers by staying silent about the fact that another setting also had to be switched of’.

Further, the ACCC alleges that Google failed to disclose how location data was used. On-screen representations provided that location data would be used for the consumer’s use of Google services. Google failed to disclose that it may use the data for its own purposes including to personalise advertisements, infer demographic information, measure the performance of advertisements, promote advertising services to third parties or to produce anonymised statistics which were to be shared with advertisers.

The ACCC is seeking orders requiring the publication of a corrective notice and the introduction of a compliance program by Google.

BE v Suncorp Group Ltd [2018] AusHRC 121: Criminal Record Checks by Your Employer

Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) In early December last year, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) was introduced for the second time proposing signifcant changes to expand corporate criminal liability. New provisions have been introduced to broaden the ofence of bribing a foreign public ofcial, the absolute liability ofence of 'failure to prevent bribery of foreign public ofcial' has been introduced, amendments have been made to the defnition of dishonesty and the Deferred Prosecution Agreement scheme has been introduced which would allow for the negotiation of outcomes and penalties.

The Bill was frst introduced in 2017, however lapsed just prior to the 2019 election. The 2019 Bill is similar, however has been strengthened following widespread political commentary surrounding the Royal Commission into Misconduct in Banking, Superannuation, and Financial Services Industry. Trademark Application: ‘Gumby Gumby’ In April 2017, a trademark application upon the phrase ‘Gumby Gumby’ was made by two business partners located in central Queensland. Gumby Gumby means ‘woman woman medicine’ in the Indigenous Ghungalu language and refers to a native shrub used by Indigenous people in traditional bush medicine and herbal remedies. IP Australia decided upon the trademark application in December 2019 and held that it was not accepted. However, the two business partners have successfully trademarked their logo incorporating the phrase and subsequently requested that several Indigenous businesses cease using the phrase. The pair do not claim to be Indigenous and alleged on their website that they invented the phrase in 1999.

Nonetheless, the application sparked widespread discussion as to the intersection of intellectual property rights and indigenous culture and knowledge. Critics have noted the cultural insensitivity of commercialising indigenous phrases without obtaining prior permission from indigenous communities. IP Australia released a report last year proposing an Indigenous Advisory Panel for IP applications involving Indigenous Knowledge, following roughly six months of consultation with Indigenous communities and institutions. The change was introduced as a result of the decision in BE v Suncorp Group Ltd [2018] AusHRC 121. BE was provided an ofer of employment by Suncorp as a ‘Work@Home Consultant’ within Suncorp’s insurance sector. This ofer was conditional upon the completion of background and criminal checks. BE was found to have child pornography ofences and Suncorp rescinded the ofer of employment. Suncorp alleged that BE could not fulfl the inherent requirements of the role, namely being adherent to the Suncorp Values of respect, honesty and trust. The Australian Human Rights Commission found that Suncorp had discriminated against BE on the basis of his criminal record. Suncorp had not demonstrated that the conviction meant the applicant was unable to perform the ‘inherent requirements’ of the job. The new test of relevancy has lowered this threshold. Recent changes have been made to federal law which governs how an employer may assess job applicants who have a criminal record. The Australian Human Rights Commission Regulations 2019 have clarifed that it is lawful for an employer to discriminate according to a ‘relevant criminal record’.

As such, if an employer wanted to reject an applicant based on their criminal record, it was previously necessary to demonstrate that a criminal record would prevent a job applicant from performing ‘inherent requirements’ of the role. The question for employers is now merely whether the criminal record is relevant to a role.