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Christian Porter has a reputation for writing the worst legislation in Australia’s history. It is rare that a politician has the potential to single-handedly set liberty back a generation and advance the march of corporate Australia into the lives of workers, but Porter has managed it with the deceptively named ‘Religious Discrimination Bill’.
When brought up in casual conversation, most people seem quite happy with the idea of protecting religious freedom, so long as it does not usurp other laws or elevate practitioners of religion above their fellow citizens. The point often missed is that we already have these protections. In 2018, a review chaired by Philip Ruddock into religious freedom in Australia found that our existing laws are sufficient. This includes Fairwork legislation and international human rights treaties which interact with our legal system.
Freedom of speech in Australia is not specifically enshrined in law as it is in the US (although it should be). Aside from rubbish legislation like 18C, the right to speak freely is mostly protected. The High Court agrees that its protection is implied by our Constitution under a section known as ‘freedom from government restraint’. ‘Implied’ might not sound particularly promising but under English Common Law, which Australia inherited upon Federation, anything not specifically covered is implied as protected and assumed to be permissible.
This legal quirk that served us well is coming under threat with the rise of obsessive political correctness encouraging legislators to write a nest of laws that our founders never intended. When cops start showing up at your house over Facebook posts, it is time to re-open the discussion on freedom of speech. Thankfully, there is no need to re-invent the wheel. America has a perfectly good set of guidelines which I’m sure we can copy-paste if we ask Trump nicely.
None of which has anything to do with the Religious Discrimination Bill.
Porter created this draft legislation to answer a particular circumstance that was brought to the media’s attention in 2019 – Israel Folau. Who could forget the months of headlines when Folau, a footballer under contract to Rugby Australia, had his employment terminated after he quoted mainstream (but arguably offensive) religious doctrine on his personal Instagram account? Pressure to do so may or may not have come from Rugby Australia’s largest sponsor, Qantas. Renowned for its oppressive social politics, Qantas is famous for its hypocrisy after it cracked down on gendered language like ‘mother’ and ‘father’ before moving its airport hub to Dubai – a nation that still criminalises same-sex relations.
Despite what this may look like on the outside, Folau’s situation was not an issue regarding religious freedom. Instead, it is a clear cut case regarding the overreach of corporations into the private lives of employees, particularly regarding the boundaries and definition of ‘private’ versus ‘public’ where the internet is concerned. Although this particular case involved religious text, identical situations have been documented throughout Australia’s employment environment where people working for a company are fired or cautioned regarding private Facebook posts, and are often made to sign social media guideline contracts considered to be an overreach by Fairwork.
Two things have happened in our culture to bring about Folau’s public case.
The first is that large corporations have decided to extend their public reputation into the speech of their employees. Twenty years ago, most businesses paid people for their work and then those workers went home. Now, employees have to adopt the culture and social politics of the company as part of their unofficial contract of employment. Social Media companies played a role in this, encouraging a cult-ish environment for workers instead of focusing on the product in production. It has now reached the point where companies are spending less time on their own branding, and more time policing the thoughts of their workforce.
The second is the internet’s rapid evolution under the noses of politicians who have had very little to do with its upbringing and display a woeful understanding of its function. These politicians are easily misled by lobbyists from companies who want to extend their legal control of places on the internet that no sane person would allow. Generally speaking, websites belonging to the company fall under the company’s jurisdiction – such as their Instagram account. It is perfectly reasonable for an employee to be sacked if they post comments onto company property in the same way that swearing in a shop would be considered a legitimate breach of company policy. Personal accounts on the same platform, such as Folau’s private Instagram, fall outside the company’s domain. Even though the public can freely read these posts, they are no different legally to the public street. Attempting to control what is said in this situation is like following a staff member home.
Christian Porter was gift-wrapped the opportunity to draw this line while resolving the Folau case.
Fairwork is pretty clear that employers cannot sack staff over their behaviour outside work unless that behaviour is illegal – certainly no company would get away with terminating the contract of an employee who joked about conspiracy theories with his mates down the pub or expressed support for a political candidate that the employer did not like. In Folau’s case, Rugby Australia, possibly at the encouragement of its sponsors worried by the association, terminated his employment because they disagreed with him. The fact that this involved religion distracted from the core issue, yet this is precisely what Porter incorrectly latched onto.
We can say with a reasonable level of confidence that Fairwork and Folau were going to win their case. This would have, on its own, set a legal precedent with the benefit of re-enforcing the supremacy of Fairwork over the fragile feelings of mega corporations. Then all of a sudden, the court case was settled and the story went away. Next minute, the government announced Porter’s bill. Whether intentional or not, Porter’s bill shields corporations at the expense of the employee while fulfilling the power fantasies of various religious organisations.
Why? Well, the bill does not protect the personal social media accounts of the employee from the employer. Quite the opposite. Porter is legislating against Fairwork, declaring that in the future companies can terminate a contract or sack an employee if a post on their personal account causes financial or reputational harm. In short, if we were to replay last year, Folau’s dismissal over his religious beliefs would have been perfectly legal if Rugby Australia could prove that his post harmed their sponsorship relationship with Qantas. In summary, it does the opposite of what was advertised.
Then the bill begins to creep into territory no politician should touch for obvious reasons.
Porter invites lawyers and the court to determine the validity of religious speech. This part would be hilarious if it wasn’t so serious. Essentially, it becomes the court’s role to determine what is and is not ‘reasonable speech’ from an ‘average worshipper’ inside that religion. The legislation adds to this that the decision must be made by a person of the same faith – but who is to decide upon such a spokesperson for the religious speech of others? More to the point, who is to offer the same service for an irreligious person – covered by the same provision – when by definition there is no agreed upon doctrine for atheism?
It is unworkable and unreasonable.
Australian law used to apply to the speech of all individuals equally. Equality under the law is fundamental to a peaceful society. It took Western civilisation a long time to erode the excessive power structures that religious institutions wielded over life until religion gained autonomy in the private sphere while law was governed by the state. At the same time, freedom of speech was placed at the heart of fundamental rights not to be interfered with, assessed or judged by politicians.
Religion has been arguing with itself for more than 10,000 years on what constitutes accepted religious doctrine, keeping in mind the ‘average speech’ of one religion might be considered intimidating to another. Instead of letting this wash safely into nowhere, Porter has created an endless pool of cash for lawyers where vexatious litigants can drag each other before the court over speech the legal system has no right to weigh in on.
Had Porter written nothing at all, Australia would be better off.
Worse, he is attempting to pass this mess through under the cover of Covid19, eroding the fundamental rights of every Australian be they religious or not when the nation is at its most vulnerable. It is the worst infringement into free speech since 18C, and far more damaging because the threshold for real financial harm is at the discretion of woke businesses toying with cancel culture.
The bill has other major concerns. Employment protection and discretion regarding religion was previously well established. Religious institutions were able to discriminate based upon religion where religion formed a qualification of that employment, such as a pastor, but not for things like a maths teacher inside a religious school. The compromise was often an agreement not to interfere with school ethos. Likewise, businesses were not allowed to discriminate unless a person’s beliefs interfered with the established norms of the company (which should be left up to the discretion of the employer) such as dress code, adherence to breaks, language, and public holidays.
After this bill is passed, religious bodies will able to discriminate employment based upon religion throughout the entire corporate entity – introducing discrimination upon request of various religious lobbyists who petitioned Porter to specifically incorporate this change. Religious employees are also given more rights than ordinary workers inside private businesses where the employer can no longer hire or fire those employees who do not adhere to work conditions (as the employer must prove unreasonable financial harm). This means that if two employees violate a dress code – only religious clothing can flout established company policy. Previously, both could be sacked for failing to maintain company standards. This breaks the previously sacred understanding that private businesses had a level of autonomy in deciding the terms of their workplace. Once again, Porter has introduced discrimination between employees that did not exist before and created an imbalance between religious and non-religious employment.
Finally, not all of this bill deals with workplace agreements.
‘The Statements of Belief’ section does not relate to employment, but rather the general discourse inside Australia. This is where it gets its reputation as a blasphemy law. Deliberately vague, the bill calls for a religious version of 18C, complete with a commission to deal with vilification, harassment, and intimidation – all of which is left open to interpretation and is highly subjective similar to ‘taking offence’. Determining whether or not there is a case to answer (and serious charges of imprisonment and fines) circles around definitions of ‘good faith’ and whether or not the statements are ‘reasonable for a person of the same religion’.
Religion, like any idea inside human civilisation, should not be afforded any special protection from criticism. To religious people, these criticisms may well cause all manner of discomfort, but that is how the world should work – especially if we are to become a multicultural society charged with sorting out good and bad religious ideas flowing in from all over the world. Not everything inside religion is acceptable and Australians should be free to say so in the same way that religious people should be free to articulate their views even when they may be considered offensive to other people, religious or not.
The absolute protection of free speech protects all faiths (and non faiths) absolutely. Porter’s legislation invites a new era of discrimination, corporate intimidation, blasphemy, and tyranny against every Australian.
It belongs in the shredder.
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Alexandra Marshall (@ellymelly on social media) is the host of "Curtain Call", a Good Sauce show exploring the leading personalities in the culture war. She writes on liberty, philosophy and geopolitics. You can find her on Twitter or read her articles over at her blog. Elly is also an AI database designer for the retail industry, contributor to multiple online journals and a Young Ambassador with Australians for Constitutional Monarchy.