Christian Porter releases bill, which will stop employers from limiting workers’ religious expression in private following fallout from Israel Folau’s sacking

This article is more than 1 year old

This article is more than 1 year old

LBTQI advocates have condemned the government’s proposed religious discrimination bill, saying the “radical” new laws would give people of religion superior rights that would allow them to discriminate.

While the Greens have criticised the government’s proposed bill, Labor’s shadow attorney general, Mark Dreyfus, said it was too early to say whether the opposition would offer bipartisan support for the legislation.

“Unlike the government, which has only been having an internal debate, Labor will be listening carefully to the whole Australian community, Labor will be consulting deeply and widely, which is what the government should be doing too,” Dreyfus said.

The attorney general, Christian Porter, will begin consultations on the new religious discrimination bill next week after releasing a draft on Thursday that outlined the new provisions to protect people of faith from “unfair” treatment.

The draft legislation includes provisions preventing employers from limiting the religious expression of workers in their private capacity and will explicitly override a Tasmanian anti-discrimination law.

Equality Australia said the act enshrined “religious exceptionalism” by giving new privileges to people of faith, while overriding existing protections from discrimination for others.

“These new, radical provisions go too far and hand a sword to people of faith to use their religious beliefs to attack others in our community,” chief executive Anna Brown said.

Brown criticised the federal government’s decision to override Tasmania’s anti-discrimination act, which prohibits conduct which “offends, humiliates, intimidates, insults or ridicules” other members of our community.

“We must not go backwards or remove any protections from harmful behaviour which have already been achieved – at great cost.”

Equality Tasmania spokesman Rodney Croome said that Canberra was “directly interfering to weaken a Tasmanian human rights law that protects vulnerable people”.

“A significant proportion of complaints under this section are from people with disability, so Canberra is directly weakening protections for them, as well as for women, LGBTI people and anyone else who falls foul of traditional religious doctrines,” Croome said.

“We call on Mr Porter to stick to the promise he made not to interfere with state law, and remove this section, and we call on Anthony Albanese and Richard Di Natale to commit to voting against this provision.”

The Greens warned the bill could be a “Trojan horse for hate”.



“The far-right of Morrison’s party are still trying to get their way, chipping away at the rights of LGBTIQ+ people and other minorities,” Greens senator Janet Rice said. “Any bill that comes to the parliament must ensure all Australians are treated equally.”

Religious groups have been broadly supportive of the legislation.

Michael Kellahan of Christian legal thinktank Freedom for Faith said he hoped Labor would support the bill, which he welcomed as a positive first step.

“It shouldn’t be contentious that we agree that there is such a thing as a need for protection of religious freedom,” Kellahan said.

He also urged the debate not to forget the daily discrimination being experienced by people of faith, particularly among the Jewish and Muslim communities.

Releasing the long-awaited legislation following a speech at the Great Synagogue in Sydney on Thursday, the attorney general, Christian Porter, said the new laws would ensure religious people were protected in what was a “necessary and difficult balancing exercise”.

The exposure draft includes explicit protections for people to express their religious beliefs in a private capacity unless an employer can prove it is a “reasonable” limitation, in a move aimed at addressing the circumstances that saw high-profile rugby player Israel Folau sacked earlier this year.

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As revealed by Guardian Australia, the bill includes clauses relating to indirect discrimination, which is where “an apparently neutral condition has the effect of disadvantaging people of a particular religious belief or who engage in a particular religious activity”.

This imposes additional requirements on large businesses with a turnover of more than $50m to not put in place standards or conditions that limit religious expression in a person’s “private capacity”, unless the business can prove it would cause “unjustifiable financial hardship to the business”.

If the business is unable to demonstrate that the condition is necessary to avoid unjustifiable financial hardship, the condition is not reasonable, and is therefore discriminatory, according to the new law.

Porter said this would provide an “extra protection” for an employee faced with the same circumstances as Folau’s.

Protected religious activity is not defined in the bill but the explanatory note states that “expression of a religious belief” may be included.

“For example, evangelising may constitute a religious activity where adherents of that religious group are required, or encouraged, to evangelise,” it said.

In July, Porter claimed the bill was “not intended to displace state law”, responding to concerns from LGBT advocates warning it could undermine state protections against vilification.

The bill, released on Thursday, explicitly overrides Tasmania’s Anti-Discrimination Act, which prohibits statements which “offend, insult or humiliate” based on protected grounds including gender, race, age, sexual orientation, disability and relationship status.

Provided a person is expressing a genuinely held religious belief in good faith, that Tasmanian provision will not apply – breaching Porter’s commitment in a bid to pacify Coalition conservatives who demanded the law prevent a repeat of the Porteous case, in which the Catholic archbishop of Hobart was sued over anti same-sex marriage leaflets.

The explanatory memorandum claims the Tasmanian law needs to be overridden “given its broad scope and demonstrated ability to affect freedom of religious expression”.

However, religious beliefs will not be protected if their expression is malicious, would harass, vilify or incite hatred against a group or advocate for the commission of a serious criminal offence.

Ahead of releasing the bill, Porter said that religious Australians were not immune from “violence or vilification”.

“The government has endeavoured to carefully understand what are the actual problems and reasonably held concerns that are manifest for individual Australians who rightfully wish to express their faith,” Porter said.

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But he said the government had rejected calls from some for positive rights to be enshrined in the new act, saying the legislation was best described as a “shield” approach.

“Rights positively expressed are powerful swords, but they are always dual-edged swords,” he said.

The attorney general said the protection from discrimination in the bill would extend from education to employment and the provision of commonwealth programs and services.

“Just because a protective shield is simple does not mean that it is unimportant,” Porter said. “Equally, that a protection is simple need not mean that it is controversial.”

Porter said the legislation would now be subject to further consultation with a wide range of interested parties before settling on a final bill.

It is expected they will be introduced in October and considered by both the House and Senate before the end of the calendar year, allowing time for a Senate inquiry.