For most believers in Australia, “law and religion” issues have been interesting but not part of their regular experience. But in this unprecedented time of the coronavirus pandemic, the simple activity of attending regular church services or home groups has been, like much of the rest of life, turned upside down. We now find that our normal weekly gatherings are potentially illegal! In this post I want to review some of the recently-made laws that impact church meetings in Australia.
How did we get here?
This is not the place to review the amazingly swift changes that have taken place in life around the world due to the onset of the coronavirus, declared to be a formal global “pandemic” on March 11, 2020. But in broad terms the swift spread of the disease, through droplets passed on by coughing or sneezing, and its potential to be fatal (even though only in a small percentage of cases), has led authorities all over the world to adopt policies requiring citizens to not gather together in large groups (initially) and then in many areas to “isolate” by staying at home.
While the disease has taken a terrible toll already, thankfully there are signs that these policies are working. In Australia we have seen a decline in new reports of infections, and the number of deaths is low compared to other places around the world. But it seems likely that the present restrictions on gathering, and movement generally, will continue to apply for some months.
Religious freedom issues
So it seems that Christians, and other believers, will need to continue to operate with restrictions on their gatherings. Are these consistent with their rights of religious freedom?
In short, the answer is: Yes, so long as these restrictions are applied in a non-discriminatory way, and for no longer than is reasonably needed to meet the important public health goals.
As I have noted here on many occasions, Australia does not have a robust over-arching framework of protection for religious freedom. But even if we had fully implemented article 18 of the International Covenant on Civil and Political Rights, the current measures would seem to be consistent with that document. Article 18 relevantly provides:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching…
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. (emphasis added)Art 18, ICCPR
As can be seen, in usual circumstances believers would have the right to “manifest” their belief in “worship”, “in community with others and in public”. A law that prevented church meetings would be a bad law and contrary to the ICCPR. But art 18(3) recognises that limits may be imposed, “prescribed by law”, where this is “necessary” to protect, among other things, “health”.
What laws apply at the moment?
What laws are applicable to these issues in Australia at the moment? Unfortunately, a full answer to that question would require consideration of 8 different jurisdictions, as Australia’s federal system gives primary responsibility for health to the 6 States and 2 Territories. There are some helpful websites which provide up-to-date information from around the country- see Dominic Villa’s excellent “COVID-19 Law” blog, this link from the brilliant free Australian law site AUSTLII, and this link from Christian Schools Australia for those wrestling with educational restrictions.
But for the purposes of making my comments more manageable, I am going to focus on the current legislation in my home State, NSW. The matters I refer to below will also be dealt with in other jurisdictions, but I encourage anyone outside NSW to read their own local legislation very carefully, as the different laws, even though broadly designed to reflect recommendations of the “National Cabinet” of Federal, State and Territory ministers, are not always consistent.
The main law that needs to be considered in NSW is the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (“the RGM Order“). As of the date of this post (18 April 2020) this link will take you to the current version (importantly, the RGM Order originally was issued on 30 March 2020 but amendments were made on 3 April 2020, so make sure you read the amended version.)
The RGM Order (as is true of others of a similar nature recently) is not an Act of Parliament or even a regulation made under authority of an Act; it is an direction made by the Minister for Health and Medical Research, under section 7 of the Public Health Act 2010, which empowers directions to be made “if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health”. (Confusingly, there is a thing called a “public health order” under the Act, but that term as defined in the Act derives from another provision, s 62, and is not relevant to the general restrictions imposed by the RGM Order. Still, since the instrument calls itself an “Order” I will do so here.)
The Order imposes restrictions on Movement (Part 2), Gatherings (Part 3), and whether Premises can be open to the public (Parts 4 & 5). Each of these areas has an impact on church life, including regular “worship” services on a Sunday, as well as small group meetings in homes and regular “one on one” Bible reading meetings.
(1) Restrictions on Movement
Under clause 5(1), “a person must not, without reasonable excuse, leave the person’s place of residence.” Clause 5(2) then directs us to Schedule 1 by saying that “a reasonable excuse includes doing an activity specified by Schedule 1”.
Before turning to that Schedule, it is worth noting that on general interpretative principles, to say that a reasonable excuse “includes” the activities specified there, does in theory leave open the possibility that leaving for the purpose of activities other than those listed might also be found by a court to be a “reasonable excuse”. (A much tighter form of words would have been used if the list in Schedule 1 was completely exhaustive.) But it has to be said that it is very difficult to provide any guidance about what would be thought to be “reasonable” in the current circumstances if not included in the Schedule. In addition, while the police will no doubt seek to implement these laws in a sensible way, I imagine that you would run the risk of being fined by a police officer for a breach of the Order if your activity did not fall within these limits, and later having to persuade a court that your excuse was “reasonable”.
Schedule 1 sets out, then, what will be considered to be a “reasonable excuse” to leave one’s place of residence. Those that may be relevant to church gatherings would seem to be:
- item 2: “travelling for the purposes of work if the person cannot work from the person’s place of residence”
- item 7: “attending a wedding or a funeral in the circumstances referred to in clause 6(2)(d) and (e) or 7(1)(h)”
- item 14: “for a person who is a priest, minister of religion or member of a religious order— going to the person’s place of worship or providing pastoral care to another person”
Note that none of these provisions (nor, so far as I can tell, any of the other items) allow ordinary members of churches to leave home to attend a church meeting or a Bible study group, or to meet with someone else for a one-on-one Bible reading session over a cup of coffee. However, items 2 and 14 would provide some justification for a minister of religion to do some of these things. Item 7 only makes sense if we take into account the “gatherings” and “premises” rules.
Under item 2, it is important to note that the definition of “work” in clause 3(1) of the Order provides that “work includes work done as a volunteer or for a charitable organisation”. This means that it would be a reasonable excuse to leave home in the following circumstances:
- where a minister of religion (leading a congregation) needed to do leave home to do work which could not be done at home; this would include, for example, going to the church building to participate in a “live-stream” or recording of a church service or other event designed to be provided to the congregation. (Further support for this is found in cl 7(1)(h)(iii), discussed below.) It would also seem to include other duties involved in congregational leadership which could not be conducted by phone or video conference- perhaps visiting members of the congregation who did not have access to such things (which would also seem to come under item 14 of Schedule 1).
- item 2 would also seem to allow volunteer members of an “audio-visual team” to leave their residences and assist in conducting recording or live-streaming of services or events. They could go to the church building or office, or to someone else’s home if that is where this was being done.
Item 7 relates to weddings and funerals, but only in the specific circumstances set out in clauses 6(2)(d) and (e) and 7(1)(h). These other clauses are exceptions to the limits on gatherings and use of premises. Under clause 6 a ban on more than 2 persons gathering in a public place contains an exemption for weddings (though no more than 5 persons including the celebrant) and for funerals (no more than 10 persons including the person conducting the service). Clause 7 has a ban on the use of certain premises by members of the public, but again exemptions (though as we will see, not identical exemptions) for weddings and funerals conducted in a “place of public worship”. But for the purposes of understanding item 7 of Schedule 1, this means that it does not authorise leaving your residence for all weddings or funerals. It only allows leaving to attend weddings or funerals being conducted in a “public place” (which would exclude private residences), or a place of public worship, and only so long (presumably) as one was aware that such wedding or funeral would be conducted in accordance with the limits on numbers present.
Item 14 would allow a pastor or minister of a congregation to leave home to attend a “church building” (or other place where “public worship” was regularly conducted), or to provide pastoral care to someone. Arguably the phrase “minister of religion” could include any members of a “pastoral team” including those who are not formally “ordained”. Whether it would include “ministry apprentices” or “trainees” is harder to say. Presumably this would mean that someone from the pastoral team would be entitled to leave home to provide practical or spiritual guidance to someone face-to-face. (Using item 14 it would not be necessary to show, as under item 2, that such “cannot” be done from home, giving pastoral care staff more discretion.)
Before leaving clause 5, it is worth noting cl 5(3): “Subclause (2) does not permit a person to participate in a gathering in contravention of Part 3”. That is, even if you are permitted to leave home for the purposes spelled out in Schedule 1, that does not mean that when you arrive wherever you are going you are allowed to contravene the “public meeting” rules. We now turn to these.
(2) Restrictions on public meetings
Clause 6, in Part 3 of the Order, provides that a person “must not participate in a gathering in a public place of more than 2 persons”. Note that this is a restriction applying to a “public place”. For some odd reason cl 3(1) of the Order tells us that the definition of this term is to be found in the Summary Offences Act 1988, where we find the following in s 3(1):
“public place” means:
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.Summary Offences Act 1988 s 3(1)
The exclusion of “school” here is interesting, but seems not to be needed for the purposes of the Order, as Schedule 2 item 12 exempts schools from the ban on public gatherings anyway. What seems clear is that this ban does not apply to private residences, so there is nothing in this clause (or elsewhere in the Order) preventing someone from holding a gathering in their own house of a dozen persons. However, when the restrictions on movement in cl 5 are considered, it would not be a reasonable excuse to leave one’s house to attend such a gathering, if it were simply a private dinner party. So the combined effect of the clauses seems to exclude large gatherings in residences.
There are a number of exemptions to the prima facie rule of “no public meetings of more than 2 persons”. Some of those are contained in cl 6(2), others are contained in Schedule 2. The most obvious impact on church gatherings, given that in effect pretty well all such meetings are “public” in that visitors are welcome, is that church services are banned. This is so whether the service is held in a formal “church building” (also excluded by effect of cl 7, noted below), or in a rented warehouse or a public park.
The exemptions from the general rule of relevance to churches seem to be:
- cl 6(2)(b) gathering for “work”- which as noted above includes voluntary work; this would allow meetings of the pastoral team of a church, and the AV team for the purposes of live-streaming or recording.
- cl 6(2)(d): “a gathering for a wedding at which there are no more than 5 persons (including the person conducting the service)”- this allows a wedding to be conducted (whether in a church building or somewhere else public) but only with the absolute legal minimum of the celebrant, the two parties being married, and two witnesses. (Note of course that since cl 6 only applies to “public” meetings, it would not of itself prevent a larger wedding party if conducted in a private residence. But as with the dinner party example noted above, the problem would be for anyone other than the core five persons to justify leaving their home to attend the wedding. Still, all the persons normally present in the residence could attend!)
- cl 6(2)(e): “a gathering for a funeral service at which there are no more than 10 persons (including the person conducting the service)”- a similar but slightly more generous rule is applied for funerals. However, there is a significant internal clash within the Order at this point. Under cl 6 the calculation of 10 must include the person “conducting” the service (either a minister of religion or a funeral director.) But when we come to cl 7, dealing with access by the public to premises, the parallel exemption in cl 7(1)(h)(ii) relating to “places of public worship” refers to: “a funeral service at which there are no more than 10 persons (excluding persons necessary for the conduct and preparation of the funeral).” This then allows both the minister of religion and, say, the relevant staff from a funeral parlour, to not be counted in the total of 10 permitted mourners. In theory one could perhaps resolve the clash by viewing the more generous limit in cl 7 as only applying in “places of public worship”- but this is still a “gathering in a public place” and so should also be limited by cl 6. It seems that the Minister needs to resolve this contradiction by amending cl 6 as soon as possible to conform to cl 7 (which was specifically amended on 3 April 2020 to expand the numbers allowed at a funeral.)
- cl 6(2)(g): a gathering to “provide care or assistance to a vulnerable person”- while not entirely clear, this might authorise, for example, a “working bee” where a congregation renovated a house for a needy person, or a food truck serving homeless persons.
- Sched 2, item 5: “a gathering at a prison, correctional facility, youth justice centre or other place of custody”- would seem to allow a “church service” or bible study at a prison.
- Sched 2, item 11: “a gathering at an office building … that is necessary for the normal operation of the tenants within the building…” – while not entirely clear, this might include some church offices where staff conduct the business of the church.
As previously noted, since these restrictions only apply to gatherings “in a public place”, they would not on their own prevent a bible study group or similar small group meeting in a private home. But the movement restrictions in cl 5 mean that it would not usually be a “reasonable excuse” to leave home to attend such a meeting. Again, a “one-on-one” meeting to drink coffee and read the Bible involving only two persons, even if conducted in a public park, would not be forbidden by cl 6(1). A member of a church pastoral team could well regard such as a matter of “pastoral care” and be entitled to leave home to conduct it. Sadly, however, the other person would probably not have a “reasonable excuse” to leave home to attend. The meeting could, however, be conducted at the home of the other person.
(3) Restrictions on the use of premises by the public
Clause 7 of the Order contains a list of premises that must not be open to members of the public, except under certain conditions. The one that is most relevant to churches, of course, is cl 7(1)(h):
(h) places of public worship, except for the purposes of conducting the following—
(i) a wedding service at which there are no more than 5 persons (including the person conducting the service),
(ii) a funeral service at which there are no more than 10 persons (excluding persons necessary for the conduct and preparation of the funeral),
(iii) a service that is being streamed or otherwise recorded at which only the persons conducting the service and persons involved in enabling it to be streamed or recorded are present,
I have already noted the unfortunate clash between cl 7(h)(ii) (which allows for 10 mourners on top of those conducting the funeral) and cl 6(2)(e) (which includes the person conducting the service as part of the maximum of 10). This needs correcting (and I think cl 6 needs to be amended.)
Cl 7(h)(iii) was a clarification welcomed by many churches which had been live-streaming and recording prior to this addition on 3 April. Even prior to these words being added, the fact that cl 7 only provides that premises must be closed to the “public” arguably excused the AV team from breach of the Order while assisting the minister in live-streaming from a church building. But the additional clause makes this clear. (Of course, churches that do not own their own “church building” were not affected by this provision at all.)
Clause 8 is generally designed to achieve the same ends as cl 7, but it is particularly directed at owners and occupiers of premises. It provides that:
(1)… a person who is the occupier or operator of premises in New South Wales must not—
(a) for premises comprised of an outdoor space—allow 500 or more persons to enter or stay on the premises at the same time, or
(b) for premises comprised of an indoor space—allow 100 or more persons to enter or stay on the premises at the same time, or
(c) allow persons to enter or stay on the premises (whether comprised of an outdoor or indoor space) if the size of the premises is insufficient to ensure there is 4 square metres of space for each person on the premises.Cl 8(1), RMG Order
Clause 8(1)(b) makes it clear that church services of more than 100 persons cannot be conducted indoors, and cl 8(1)(c) that even for services of less than 100, a “physical distance” requirement of 4 m2 per person must be required. Since, as we have seen, the Order in fact already forbids public gatherings of more than 2 persons anyway (in cl 6), this paragraph does not have any additional operation in relation to church services. Nor does it have any impact on home bible study groups, since cl 8(2)(a) says that the limits under cl 8(1) do not apply to “a person’s place of residence”. However, the “4m2 limit” will have a consequence for church pastoral or AV teams that are allowed to gather under exemptions noted at point (2) above- for example, to conduct live-streaming as “work” or for allowable weddings or funerals. These gatherings must be conducted in spaces that allow 4 m2 per person present (and, while the Order does not explicitly say so, presumably be conducted in such a way that as far as possible persons involved stand 1.5-2 metres apart from each other.)
Summary of restrictions for churches
In brief, then, church activities need to be conducted in NSW keeping in mind these principles:
(1) Are the persons concerned entitled to leave home to carry out this activity; is there a “reasonable excuse” under cl 5 read with Schedule 1?
(2) If the persons concerned are gathering in a public place, is that for an activity that is permitted? Here clauses 6, 7 & 8 (along with Schedule 2) need to be applied.
As we have seen, ordinary public church services cannot be conducted in person, and in general terms even home bible studies cannot be run (since while gathering in private homes is not unlawful, travelling to attend the study could not usually be justified.) But the legislation allows church pastoral and AV teams to conduct activities which will allow church members to connect online and in other electronic ways.
As many have commented, those of us used to the privilege of meeting with fellow believers in large and small groups and face-to-face are finding it hard that these things can’t happen at the moment.
But Christians are people who love our neighbours (Matthew 22:39) and submit to the authorities that God has provided for our good (Romans 13:5). In this unprecedented time of pandemic, and in submission to the laws enacted by the government for this limited time, we should not be physically meeting together , but instead “gathering” online and in other ways. We look forward to being able to gather “face to face” both after the current health crisis has passed, and later in the new heavens and earth with all those who trust in Jesus!