Kudos deserved, but uncertainties need resolution

When measured against three critically important tests, Christian Porter’s religious discrimin­ation scheme deserves kudos. It could be even better once the uncertainties are resolved.

The exposure draft of Porter’s Religious Discrimination Bill will provide far more protection for ­religion and go a long way towards stemming a recent tide of religious persecution by secular extremists.

The Attorney-General deserves full marks for overriding the ludicrous Tasmanian law that was used against Julian Porteous, the Archbishop of Hobart, after he disseminated a tract outlining the Catholic doctrine of marriage.

But what of the other states? Because the scheme protects “lawful religious activity”, that leaves the states in the box seat with the power to enact their own version of the Tasmanian law used against Porteous.

That gift for anti-religious zealots needs to be rewritten.

The overall thrust of this scheme aims to protect the freedom of religious adherents to espouse their doctrines regardless of whether anyone claims to be ­offend­ed, but the right is not absolute. It won’t protect statements of belief that are malicious or harass, vilify or incite ­hatred or violence against a person or group.

That points to another problem — the meaning of the term “vilification”, which has been hotly contested, is not defined in this bill. It should be.

One of this scheme’s great achievements is that merely taking offence does not undermine its protection. That approach should be extended to section 18C of the Racial Discrimination Act, which still protects hurt feelings.

The Israel Folau test is the big one, and on that Porter’s approach could lead to a surprising result. If the footballer had worked for a big employer such as Alan Joyce’s Qantas, this scheme would make it very difficult to lawfully prevent him from espousing Christian doctrine on social media.

Employers with turnover greater than $50 million would need to prove that restricting their employees’ private statements of belief was necessary if the business were to avoid unjustifiable financial hardship. In theory, that might be feasible, but how many employers would willingly incur the reputational damage associated with invoking such a defence?

Small employers have it easier. Small business would just need to show that restricting an employee’s private activity was reasonable. Those in small business who engage in indirect religious discrimination against their employees will find it easier to avoid liability.

The last of the tests concerns the protection of religious organisations. This is where more uncertainties need to be cleared up.

Clause 10 of the exposure draft protects religious organisations that engage in good faith in conduct that may “reasonably” be regarded as being in accordance with their doctrines, tenets, beliefs or teachings.

The word “reasonably” means the reality of religious tenets will be irrelevant. A judge, not a religious authority, will decide whether a religious organisation’s conduct accords with religious tenets.

Apart from being ridiculous, this introduces uncertainty on the question of whether religious schools can safely hire only those teachers who adhere to, or agree to support, their doctrines.