Religious discrimination proposal could allow companies to stop employees expressing beliefs

29 Aug 2019

Businesses could have the ability to stop their employees expressing their personal beliefs if they can show it would cause financial damage to their brand, under draft Federal Government religious discrimination laws.

Attorney-General Christian Porter has released the draft legislation after months of consultation with religious groups, following an election pledge to protect Australians from religious discrimination.

The issue has been thrust into the spotlight with the case of controversial rugby player Israel Folau and Rugby Australia.

The organisation sacked the former Wallaby and devout Christian after a homophobic post on Instagram.

Speaking at Sydney’s Great Synagogue, the Attorney-General said there would be parts of the legislation which dealt with conditions employers could put on their staff.

“Someone in Mr Folau’s position might say that the rule under which they were sacked was unreasonable, indirect discrimination,” Mr Porter said.

“The employer would need to argue that the rule was reasonable.

“But to do that, they would have to show the commercial damage to their organisation that was suffered by the breach.”

Then-prime minister Malcolm Turnbull commissioned former Liberal MP Philip Ruddock to review protections for religious freedoms following the legalising of same-sex marriage.

The recommendations from that came out late last year, as Scott Morrison made his election commitment.

The Attorney-General on Thursday emphasised there would be restrictions within the proposed laws.

“Importantly, and I will stress this, no statement of belief in this context is reasonable if it’s malicious or if it harasses, vilifies, incites hatred or violence or advocates for the commission of a serious criminal offence,” Mr Porter said.

The Federal Government will continue public consultation on the bill, which the Attorney-General said followed the standard framework for an anti-discrimination bill.

“First, defining an attribute, in this case, religious belief or activity … which I might note also includes the right, if you like, to be irreligious or not to subscribe to a religion,” Mr Porter said.

“Second, the bill defines the concept of discrimination, both in direct and indirect settings, and establishes the specific circumstances where it becomes prima facie unlawful for someone to be discriminated against because of that attribute.

“Third, the bill sets out categories of specific and general exceptions to those prohibitions.”

Liberal politicians pleased with draft

Liberal MPs appear largely satisfied with the draft bill, saying it is in line with what was presented to them during briefings with the Attorney-General.

Chief whip and Liberal senator Dean Smith was the architect of the same-sex marriage laws and said he “wholeheartedly supports” the religious discrimination bill.

“Substantively the draft bill is a faithful expression of the Government’s response to the Ruddock Review released in December last year,” he said.

Conservative New South Wales senator Concetta Fierravanti-Wells had been urging the Government to go much further and enshrine freedom of religion in legislation.

But the ABC has been told this is very much a minority view inside the Coalition party room.

Senator Smith alluded to this, saying the case for a “positive rights approach” has been poorly made.

“The Attorney-General is correct to have rejected the idea as inconsistent with Australia’s legal approach and fraught with inherent legal risk,” he said.

“Australia’s anti-discrimination architecture has served Australians well and enjoys broad endorsement across the community and it would be careless to dismantle it now.”

Urgent need for public consultation, Labor says

The Federal Opposition said it was still to be briefed on the legislation.

“It’s apparent from some of the public reaction already that very many other Australians have not been consulted,” Shadow Attorney-General Mark Dreyfus said.

“Almost no religious organisations have been consulted, certainly LGBTI groups do not appear to have been consulted.

“It’s time that the debate that the Government’s been having internally be allowed to occur with the whole Australian community.”