Companies and organisations which suffer commercial damage would be able to prevent a religious employee making discriminatory remarks outside of work under proposed new religious discrimination laws.
For example, Rugby Australia would have had to argue it suffered financial hardship from star player Israel Folau’s social media comments about gay people in order for its conduct to be considered reasonable under the draft laws.
The federal government released the draft laws, aimed at protecting people of faith from discrimination, on Thursday.
The laws are designed to protect people from being discriminated against, but will not give them a licence to discriminate against others.
It will be similar to other existing anti-discrimination laws, such as those covering age, race and disability.
Attorney-General Christian Porter says the Bill does not create a positive right to freedom of religion. Source: AAP
Federal Attorney-General Christian Porter, who released an exposure draft of the religious discrimination legislation during a speech at The Great Synagogue in Sydney on Thursday, said the laws were best described as a 'shield' approach rather than a positive right or 'sword' approach.
"Rights positively expressed are powerful swords, but they are always dual-edged swords," he said.
The Folau case
Under the laws, a large business that imposes a condition on an employees' behaviour that limits religious expression would have to prove it was necessary to avoid financial hardship.
Asked whether that would prevent Rugby Australia from sacking star player Israel Folau for making offensive comments about gay people on social media, Mr Porter said it was difficult to say.
"What I can say is that no doubt Mr Folau would argue that the condition that said that he couldn't speak in this fashion outside of work was unreasonable.
"To establish that the condition was reasonable, Rugby Australia would have to show the commercial damage done to them by Mr Folau's words."
Israel Folau is challenging Rugby Australia's decision to sack him. Source: AAP
Concern companies may get 'free pass'
South Sydney Anglican Bishop Michael Stead, said he was concerned the financial hardship test could give companies leeway for discriminating against religious employees.
He said he hoped the provision would be tightened in the consultation phase.
“It could give a free pass to big corporates to clamp down on religious expression if they can make the case it’s not going to be good for their brand,” he told SBS News.
But University of Melbourne's Liam Elphick, who is a member of the Australian Discrimination Law Experts Group, said it's going to be difficult for businesses to prove "unjustifiable" financial hardship.
"It’s a really high threshold to meet. It only applies to businesses with an annual revenue of $50 million or greater so for everyday business this provision won’t apply," he told SBS News.
"But for those large businesses, they are going to have to provide strong evidence that this would significantly hamper their financial operations. That might be arguable in a Folau-type case but I think in most cases you’re probably not going to be able to establish that."
Some faith-based groups did not attend the speech after claiming they were blindsided by the release of the draft legislation.
The chief minister and senior rabbi for the Great Synagogue Benjamin Elton said he wants to see a "good balance" in the laws.
"I want a society in which people feel not discriminated against and their expression of faith without causing gratuitous offence or a lack of freedom to people without faith or a different faith," he said.
Laws go ‘too far’
Civil society groups representing women, the LGBTQI+ community, and people of colour condemned the draft laws, saying the “radical” provisions went too far.
“They hand a sword to people of faith to use their religious beliefs to attack others in our community,” Anna Brown* CEO of Equality Australia said in a statement.
“Laws must apply equally to everyone – this Act enshrines religious exceptionalism by giving new privileges to people of faith, while overriding existing protections from discrimination for others.”
Gay teachers dealt with separately
Among the changes will be a new position of Freedom of Religion Commissioner in the Australian Human Rights Commission.
The laws could be passed by the end of the year, but they will not deal with how schools deal with gay staff and students.
The Australian Law Reform Commission is separately looking at religious exemptions to discrimination laws, with a report due early next year.
It wants to protect the right of religious institutions to conduct their affairs in accordance with their faith.
Labor says it will support modest changes to anti-discrimination laws to protect people of faith, but not broad-ranging reforms.
Additional reporting Rosemary Bolger and AAP
