Why the proposed religious freedom laws are 'deeply flawed'

The legal protection for large employers in the proposed religious freedom laws are ‘deeply flawed and impractical”, according to Employsure’s Employment relations expert, Michael Wilkinson.

The issue has been heavily in the spotlight this year with the ongoing case between Israel Folau and Rugby Australia.

Under the draft Federal Government religious discrimination laws, a large employer with a turnover of more than $50 million or more could have the ability to stop their employees expressing their personal beliefs if they can show it would cause financial damage to their brand.

Attorney-General Christian Porter has released the draft legislation after months of consultation with religious groups, following an election pledge to protect Australians from religious discrimination.

Porter explained that the rationale for this provision on larger businesses is that it halts businesses trying to dictate what their employees say outside work hours, which he argues is a restriction on free speech.

According to Wilkinson, the draft legislation would be challenging to prove, and therefore impractical, arguing, it will be near impossible for large businesses to satisfy the proposed exemption relating to financial hardship.

“Most businesses of that scale would be extremely reluctant to argue financial hardship due to the practical market and PR consequences of doing so,” said Wilkinson.

He also raises concerns about the implications and applications of the proposed religious freedom laws.

For example, if a large business implements a code of conduct restricting workers’ statements of belief, their dress, appearance or behaviour it must show that the restrictive code is necessary to prevent financial adversity.

“This provision does not apply to small businesses and raises questions about whether the legislation could result in such businesses being held to the same standard over time.”

According to Wilkinson, what’s also problematic is the ambiguity on key elements such as what is meant by religious belief or activities.

“But it is intended to provide protection for all expressions of religious beliefs and activities such as prayers and fasting, the commitment to wear certain garments such as head-coverings,and evangelising or seeking to persuade others to follow creed.”

It is also what level of losses would be required to prove unjustifiable financial hardship.

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Equally, it would be essential to have a "reasonableness" test in cases of indirect discrimination on religious grounds which should ensure complaints are not frivolous.

He also expressed strong concerns that the legislation would over-ride existing state anti-discrimination laws, stating this is just another case of “unnecessary red tape – various protections exist protect employees from discrimination in the workplace and outside the workplace. Is another law really needed?”