Cases such as Israel Folau’s would be captured by the government’s proposed religious discrimination bill, according to the attorney general, who says the legislation will include a “powerful avenue” for people of faith who face “indirect” unfair treatment.
However, Christian Porter is holding firm against calls from conservative MPs to establish a religious freedom act, saying such legislation could see “sensitive public policy” determined by the courts as it adjudicated competing rights.
Speaking to Guardian Australia after briefing more than 20 government MPs in Canberra on Friday, Porter said the legislation would include a clause relating to indirect discrimination, mirrored on section 7b of the sex discrimination act. He believed this would prevent employers from putting in place a binding condition on all employees – such as occurred with Rugby Australia – that restricted someone from expressing their religious views.
“This would provide an overarching rule that places limitations on what an employer could do by way of general rules that affected all of their workforce, if those general rules, in an unfair and unreasonable way, had a negative – or what the legislation calls a disadvantaging – effect on a person of faith,” he said.
“A bill like this would provide a very powerful avenue for someone who believed that a general rule in their employment especially disadvantaged them because of their religion, to argue that that rule was contrary to the act and unfair.”
The move to assure MPs of the merits of the proposed religious discrimination act comes after Rugby Australia terminated the contract of star player Folau for a widely condemned social media post in which he said “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters” would go to hell unless they repented. The case is headed to the federal court.
Porter said once the religious discrimination legislation came into effect, it would prevent employment contracts being made that were in breach of the new commonwealth law.
“When two private parties contract with each other – an employer and an employee – they can’t contract to do something that another piece of law, in this case commonwealth law, says is unlawful,” he said.
“The bill … provides an avenue for people who think a rule in their employment has unfairly disadvantaged them or led to their termination unfairly because of their religion, provides an avenue for complaint and potentially redress in those circumstances, and so it goes a long way to protect people from being discriminated against in the context of their employment.”
When asked if he believed Folau should have been free to express his view on social media, Porter said the case was about “competing principles” and he was unable to give an answer “as a lawyer”.
But he “personally” had concerns about the ability of a corporation to restrict the views of an individual in their private life.
“I think a real issue arises here about how much and to what extent modern businesses – whether they are sporting codes or law firms – attempt to limit people’s behaviour in their private life and in their private discussions and in their private discourse outside of work hours based on an argument that there is what is sometimes called brand damage to the overall organisation,” he said.
He believed there was “disquiet” among Australians about the Folau case.
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SOURCE: The Guardian, Sarah Martin