Australian Government releases Federal Religious Discrimination Bills – genuine consultation or playing politics?

On 29 August, Attorney General Christian Porter announced a package of draft Bills dealing with religious discrimination. They come in the wake of the termination of Israel Folau’s player contract by Rugby Australia for his social media posts vilifying homosexuals and others, although the issue has actually been simmering away on the Government’s agenda for quite some time.

The centrepiece of these proposals is the Religious Discrimination Bill 2019 which provides comprehensive protection against discrimination on the basis of religious belief or activity and establishes a new office of Freedom of Religion Commissioner.

The other draft Bills released – the Religious Discrimination (Consequential Amendments Bill) 2019 and the Human Rights Legislation Amendment (Freedom of Religion Bill) 2019 – propose to amend existing legislation to support the centrepiece, including altering the Fair Work Act 2009 to include the proposed Religious Discrimination Act 2019 in the definition of ‘anti-discrimination law’ in s 351, which would mean that an employer could not take adverse action against a person if it is unlawful to do so under the RDA.

The Bills respond to several recommendations by the Religious Freedom Review, the most relevant being recommendation 15: The Commonwealth should amend the Racial Discrimination Act 1975, or enact a new Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, said the Review, consideration should be given to providing for appropriate exceptions and exemptions, including for certain religious bodies, schools and charities.

In releasing the draft Bills, Mr Porter said that “whilst there will always be competing views on issues such as this, the Government considers the draft Bills presented today strike the right balance in the interests of all Australians“.

On the other hand, the Federal Greens have warned that “offering more protections to religious institutions risks being a Trojan Horse for the Morrison Government to enshrine discrimination into law … the opposite of what an anti-discrimination bill should do“.

Never mind the posturing, the draft Bills do contain provisions seemingly drafted as a direct response to the Folau saga. Under the proposed legislation a business with more than AU $50million turnover would be required to prove that any rule preventing employees making statements of belief even in their private capacity (on social media, just for example) is necessary to avoid unjustifiable financial hardship to the business.

Although the new legislation would not be retrospective and so of no assistance to Folau in his Federal Court proceedings against Rugby Australia, when asked on the ABC’s 730 program whether the draft Bills would have prevented Folau’s sacking over his social media posts, Mr Porter said that “what it would do is give someone in Israel Folau’s circumstance an avenue for complaint, and that complaint would look like this: My employer puts a condition upon me which has the effect of restricting my ability to express my religious beliefs in my spare time…if a large employer with a turnover of over $50million did that, not merely would they have to show that a broad condition on the employee is reasonable, but they would have to show that unless that condition was complied with, that they, the business, would suffer undue financial hardship“.

What “undue” financial hardship entails is anyone’s guess, because it implies that there is a level of financial damage from such expressions of belief that an employer should have to live with, and/or that the bigger the employer the greater the employees’ ability to do it harm without any right of recourse against them. These questions (together no doubt with how far cost and hardship are synonymous and how far expressions of belief can be limited by any requirement for respect of the rights of others) will likely be up to future courts to decide if the draft Bills become law in their current form. While a level of protection for one’s beliefs is very right and proper, our experience in other jurisdictions shows that in matters so emotive, clarity as to what is lawful and what is not is integral to the production of effective legislation.

The draft Bills are expected to be introduced for consideration by both the House and the Senate in October 2019 and subject to a Senate inquiry before the end of the calendar year.

Mr Porter said that the draft Bills have been released to aid further consultation with a wide range of stakeholders making the point that “consultation has already been undertaken through my office and the office of the Prime Minister with a range of stakeholder groups, including religious organisations“.

Shadow Attorney General Mark Dreyfus criticised the Morrison Government noting that “religious discrimination legislation affects all Australians, not just the Liberal Party room, and the Morrison Government must ensure there is time to ensure all Australians are properly consulted about this important Bill” urging that the draft Bills not be “rushed through Parliament because of the Government’s internal divisions“.

A pertinent question is whether the Government’s time frame is achievable or even proper for such a contentious and important legislative package, particularly given the complexities of the legislation and the likely ramifications. In any event, the fallout from the release of these draft Bills is set to continue at least during the consultation period with many and varied views to be aired from all walks of life.

The draft Bills are available on the Attorney General’s website here, and submissions close on 2 October 2019.