There are a number of problems with the legislation, but the main areas that concern DCA are the override of other anti-discrimination laws, the restrictions on workplace codes of conduct, and the inconsistency with other Commonwealth laws.
The proposed laws could stop Australian businesses fostering inclusive cultures, eroding any business benefit derived from inclusion. But also, they will create confusing and absurd situations in workplaces.
In short – the laws will create a landscape that’s nearly impossible for employers, but great for lawyers.
That said, it’s important to be clear: at DCA, we champion religious inclusion, especially in workplaces. We believe passionately that people shouldn’t be discriminated against because of their faith.
DCA’s research supports this view, having found that employees from non-Christian backgrounds experience harassment and discrimination at work at significantly higher rates than their Christian and non-religious colleagues. As a result, we have a resource designed specifically to help Australian workplaces make multi-faith inclusion a priority.
At the same time, we know that using that faith as a reason, genuinely held or not, to discriminate against others isn’t good for inclusion.
And damaging workplace inclusion is one of the consequences, unintended or not, that this legislation will result in.
Overriding anti-discrimination laws will create a mess for workplaces
As outlined, these laws will create an absolute mess for workplaces, and here’s just one example: an employee could use these protections to make racially offensive comments, based on their interpretation of their religious texts, that would otherwise be prohibited under the Racial Discrimination Act.
What’s more, these laws create a situation where religious people are exempted from complying with other laws that non-religious people must comply with.
Different kinds of speech would have different protections and different limits for when employers can step in to uphold workplace standards of conduct.
For another example, imagine two employees in the workplace expressing opposition to same-sex relationships. If one employee is of a religious background they could use this to defend their comments, while the other could not. Studies show that messages like these are harmful to LGBTIQ+ people, and can cause mental health consequences, great emotional distress, anxiety, panic disorders, depression, and suicidality.
So the impact on LGBTIQ+ colleagues would be the same, but the consequences for their colleagues would not.
There are also passages in the Bible which are highly derogatory towards people with disability. Under this proposed legislation, an employee of an organisation could make harmful and disparaging comments about people with disability, and claim to be simply quoting the Bible to validate their comments – something which would not be acceptable under any other circumstances.
Restrictions on workplace codes of conduct
The draft legislation would also make it difficult for organisations to implement effective codes of conduct. Codes of conduct are important to business as they set out expectations for employee behaviour and underpin a positive and inclusive organisational culture.
Under the proposed legislation employees would have a very wide ability to argue that they should not have to comply with particular company policies. Individuals could ‘opt out’ of their organisational diversity and inclusion policies, which would be damaging to organisational cultures and the wellbeing of individuals.
There is strong evidence that inclusion is good for business. This proposed legislation would impair organisational efforts to implement diversity and inclusion policies.
Inconsistency with other Commonwealth laws
Finally, the exposure draft differs significantly to the structure of other Commonwealth anti-discrimination legislation, which will be confusing for business.
For example, the way a workplace is defined in these proposed Bills specifically excludes behaviour undertaken ‘at a time other than when the employee is performing work on behalf of the employer’. However, there has long been a recognition that work extends beyond the physical boundaries of the workplace and the physical time of work.
Sexual harassment perpetrated via Facebook from one employee to another would be unlawful under the Sex Discrimination Act, but proclamations that homosexuality is a sin via the same medium would not.
What’s more, if these sorts of statements are made publicly, the impact on employees can’t be separated and undermines employer’s duty to provide a safe work environment.
Under Australian anti-discrimination law, the intent of the behaviour is irrelevant, rather the law focuses on the perception of the recipient of the conduct and whether they find it discriminatory.
But under these laws, if someone claims to have made a statement of belief, the impact is not relevant.
So … what is religious freedom?
Ultimately, the idea of religious ‘freedom’ is an important tenet of human rights laws. People absolutely should be free to believe or not believe in any faith.
But even the United Nations has made clear that the right to religious freedom isn’t limitless, and the right to manifest your faith must be balanced with how that interferes with other people.
Instead of introducing the draft exposure legislation, we believe that the Government should continue consulting with relevant stakeholders on this issue, and work to develop legislation that is inclusive and does not provide additional positive rights that allow discrimination against other people.