The NSW Parliament is currently considering a Private Member’s Bill which would make religious discrimination unlawful. The Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020, introduced by the Hon Mark Latham, is being considered at hearings before a Joint Select Committee. I have previously linked, here, to a submission on the Bill provided by Freedom for Faith. The Bill has been subject to serious criticism in an article on The Conversation and in the Sydney Morning Herald. Here I want to provide some response to those critiques, and to suggest that the Bill, while not perfect, is worth supporting and is a good idea.

The fact that NSW needs a law on religious discrimination may come as a surprise to general members of the public. But the patchy and unsatisfactory protection of religious freedom in Australia in general has been commented on previously, particularly in the “Ruddock Report” handed down at the end of 2018, which recommended federal legislation to improve the situation. (The second version of an Exposure Draft of such legislation was about to be presented to the Federal Parliament prior to the understandable shut-down of much ordinary Parliamentary activity as a result of the COVID-19 situation.)

The fact is that at present there is no overall law in NSW forbidding discrimination against someone on irrelevant grounds connected with their religion. This is the gap which the amending Bill introduced by Mr Latham seeks to fill.

In general terms, the idea that we should have such a law receives fairly wide support. In the article in The Conversation I mentioned previously, “NSW needs to prohibit religious discrimination, but not like this” (Oct 21, 2020), Liam Elphick and Alice Taylor agree: prohibiting religious discrimination “is a welcome and long-overdue development in NSW”. Similarly, in his Sydney Morning Herald article, “Religious discrimination bill will create an unholy mess” (Oct 26, 2020) Alastair Lawrie notes that “the lack of protection for religious belief is a genuine gap in NSW anti-discrimination law”.

But of course, “the devil is in the detail”. So these commentators reject the Bill because, they say, it has a number of flaws. Let me comment on these claims. Most of the quotes below come from the Conversation piece, though at the end I also comment on the SMH article.

Claim: “The Bill prioritises religion over all other views, practices and attributes”

The sentence quoted here from the Conversation goes well beyond a reasonable summary of the Bill. The amendments made by the Bill are specifically targeted at behaviour which imposes “less favourable treatment” on someone on the grounds of their religious belief or activity (see new s 22L). But it does not, for example, prevent someone being held accountable and dismissed from their job if they commit an act of religiously-motivated violence against another person (as this would be a criminal act punishable by imprisonment, which is explicitly said not to be a protected form of “religious activity” under s 22K(1)). This of course is an important limit on religious freedom, as sadly illustrated by recent attacks on French citizens apparently motivated by extremist Islamist ideology.

Let’s take another example which is not a criminal offence. NSW law forbids racial discrimination, in Part 2 of the Anti-Discrimination Act 1975 (the “ADA”, the Act being amended by the Bill.) Would racial discrimination by a religious group (claimed to be based on their religious beliefs), be somehow protected by this Bill? No. While s 22M provides circumstances in which a “religious ethos organisation” will be held not to discriminate, that section only operates “for the purposes of this Part”; that is, for the purposes of new Part 2B. So discrimination on other grounds dealt with under the ADA is not protected by s 22M.

The view that the Bill “provides wide exceptions to religious bodies to permit them to discriminate”, then, is also over-stated. Section 22M is designed to deal with the issues raised by the fact that not all differential treatment on the basis of religious belief is unlawful discrimination. The concept of “unlawful discrimination” is that of behaviour which treats others detrimentally on grounds which ought to be irrelevant to rational decision-making. Sometimes, these grounds are actually relevant to decision-making in certain areas, and hence in those areas it is not unlawful to use those grounds to make decisions.

So, to take an example from other parts of the ADA again, if a producer is casting a play about indigenous footballer Adam Goodes, then it would seem to be reasonable to choose an indigenous person to play that role. Despite this being a choice arguably made on “racial” grounds, s 14(a) of the ADA allows such a choice to be made in a case of “participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity”.

In the context of laws generally forbidding detrimental treatment on irrelevant religious grounds, the Bill in s 22M allows that for a “religious ethos organisation” some decisions about employment or other practices may need to be taken on the basis of a person’s religious beliefs, to support the “ethos” of the organisation. As the Conversation article itself notes:

“[A]n Anglican school is likely to want its religious education teachers to be of the same faith – and this seems fair.”

If this is correctly conceded to be “fair”, we clearly cannot characterise every decision made on the basis of religious belief as “discrimination” in the sense of “unjustified discrimination”. Where the line is drawn in this area will, of course, continue to be a matter of debate. To what extent is the wider community going to impose its view on what is “relevant” to decision-making by religious groups? Will an Anglican school be entitled to only employ those who share its faith commitments as mathematics teachers, as office staff or as gardeners? The criterion adopted by the Bill in s 22M(1) is that:

“the organisation genuinely believes the conduct— 

(a) is consistent with the doctrines, tenets, beliefs or teachings of the religion of the organisation, or 

(b) is required because of the religious susceptibilities of the adherents of the religion of the organisation, or 

(c) furthers or aids the organisation in acting in accordance with the doctrines, tenets, beliefs or teachings of the religion of the organisation.”

In my view these seem like reasonable criteria to use where a religious group has been set up to operate in accordance with certain faith commitments. In this context there is a difference between a group with a specific “ethos” and a commercial operation set up simply to make profits for its owners and provide a general service to all. Just as we would expect a political party to employ persons who share a commitment to certain political views, or a lobby group set up to further “Black Lives Matter” not to engage a white supremacist, it seems fair to allow religious groups to engage persons who will share and support their mission.

The allegation is made that religious groups may “refuse to comply with some existing NSW laws”. The “some” is a correct recognition that serious criminal offences are not to be regarded as protected, as noted above. But are there other State laws (where the penalty falls short of imprisonment) that would be impaired by this law?

The Conversation article suggests a clash in the area of “harassment”:

“If an employee (Person A) makes a complaint of harassment against another employee (Person B) and that harassment is based on a religious view of, say, gender or sexuality, employers would be placed in an impossible position.

They would either need to investigate and sanction Person B and risk them bringing a religious discrimination claim against them, or they would need to reject the complaint and risk Person A bringing a harassment claim against them.

Employers will be forced to act unlawfully, no matter what they do.”

The link here is to the Sex Discrimination Act 1984 (Cth). So presumably the authors are suggesting that “sexual harassment” of some sort may be involved. Yet that is defined in s 28A of the SDA as involving an “unwelcome sexual advance, or an unwelcome request for sexual favours”, or some other form of “unwelcome conduct of a sexual nature”. But it really seems a stretch to say that this sort of behaviour in the workplace could even plausibly be said to be motivated by a “religious view” of some sort.

Still, let’s stretch the boundaries of credibility and say that person B’s unwanted sexual advances are somehow justified by them as connected to their religious views. An employer in this case would be free, first, to ask the employee to demonstrate their “genuine belief” in such a view, under s 22KA. This would involve them showing that this unusual religious view was “sincere and is not fictitious, capricious or an artifice” under s 22K(1). Contrary to the suggestion in the Conversation article, the standard is not “entirely subjective”. There is an accepted common law approach to determining what is a “religion”, and hence what is possibly a “religious belief”, in the Church of the New Faithdecision of the High Court. It is not purely a matter of private assertion.

Suppose then, again contrary to what is at all likely, this is shown to be a genuine belief of a religion somehow. Even at that point, if an employer disciplines person B for their unwanted sexual advances to a fellow worker, then the most that B can claim is that this is somehow “indirect discrimination” under s 22L(1)(b). The decision of the employer would not be made on the grounds of the alleged religion, it would be made on the grounds of the sexual misbehaviour. And under the provisions of s 22L(1)(b), the question would be whether the condition that employees not engage in unwanted sexual advances is “a requirement or condition that is not reasonable having regard to the circumstances of the case.” Of course a court would find that it is reasonable to protect employees against unwanted sexual advances!

The above discussion pushes the boundaries of plausibility to breaking point. Perhaps there are other allegedly unlawful actions that might be justified by religious belief, but the Conversation article does not provide any other examples.

Codes of conduct and Israel Folau

The Conversation article suggests that the Bill will make it impossible to enforce “codes of conduct”. It does so by reference to the case of Israel Folau (noted previously here and here), who (as will no doubt be recalled) posted religious views about eternal punishment awaiting persons who engage in various types of behaviour on his social media feed. The example given by the authors is an employee who posts on social media a statement that “hell awaits homosexuals”, which is contrary to an employer’s “code of conduct”. The other important feature of the example is that this posting is done outside work hours and not on work premises.

In such circumstances it does seem that s 22N(3) of the Bill would protect the employee:

22N(3) Without limiting subsection (1) and (2), it is unlawful for an employer to— (a) restrict, limit, prohibit or otherwise prevent an employee from engaging in a protected activity, or (b) punish or sanction an employee: 

(i) for engaging in a protected activity…

(4) In subsection (3), protected activity means— (a) a religious activity performed by the employee that: 

(i) occurs at a time other than when the employee is performing work and at a place other than the employer’s place of work, and 

(ii) does not include any direct criticism of, or attack on, or does not cause any direct and material financial detriment to, the employer. 

(5) For the avoidance of doubt, the following do not constitute direct and material financial detriment to an employer for the purposes of subsection 4(a) and 4(b)— (a) any boycott or secondary boycott of the employer by other persons because of the employee’s protected activity, or the protected activity of their associate, or (b) the withdrawal of sponsorship or other financial or corporate support for the employer because of the employee’s protected activity, or the protected activity of their associate. 

Is this a bad outcome? One does not have to agree with the sentiment expressed (or with Mr Folau’s comments, though importantly those were much more nuanced in relating to a range of behaviours, referring to the love of Jesus, and presenting forgiveness for those who repented.) But should an employee can be sacked for expressing such views on social media, outside the workplace, in a job that may have nothing to do with such matters?

Again, the statement that this will make enforcement of “codes of conduct” generally nearly impossible is clearly an exaggeration. Most codes presumably deal with a range of issues which have little to do with these matters of either sexual orientation or religion. It is just not true, for example, as the Conversation article says, that: “Employers would need to uncover the motivation behind an employee’s comments or actions before they could even attempt to enforce codes of conduct.” Most codes of conduct will not raise the issues. Where these issues are raised, it will be up to the employee to present their claim for justification based on religious belief. At that point the discussions will arise.

The article then notes that the protection of this provision will only apply to employees with a religious faith, and hence that “employers would be forced to treat employees of faith differently from other employees.” Yes, and this is a standard feature of many discrimination laws, known as “reasonable accommodation”. Where a protected characteristic does often involve a practical disadvantage, then it is not uncommon for discrimination laws to provide that accommodation of that disadvantage should be provided: see for example the Disability Discrimination Act 1992 (Cth) s 5(2) requiring that “reasonable adjustments” be made.

There is also a claim that the Bill would prevent a school from sanctioning a student for bullying another student after school “so long as their bullying is religiously motivated”. Section 22V applies rules similar to those discussed above, to “educational authorities”. Let’s assume (though there must be some doubt) that some “bullying” can be motivated by religion. Are schools already in the habit of “sanctioning” students for bullying carried out off school premises and after hours? While no doubt there are students who wish this were true, it sounds unlikely that schools would decide to intervene in the lives of their pupils on a 24/7 basis.

Performing State functions

There is a slightly unusual provision in the Bill, s 22Z, which applies special rules when someone is “performing any function under a State law or for the purposes of a State program”. The main provision here, s 22Z(1), makes it unlawful to discriminate on grounds of religion against persons generally carrying out such roles. Then s 22Z(2) says that it will be deemed to be unlawful discrimination against a “religious ethos organisation” carrying out such a role “if the person requires a religious ethos organisation to engage in conduct, including use of its property, in a manner which is contrary to the doctrines, tenets, beliefs or teachings of that organisation”.

To illustrate how this might work, let’s take a religious social welfare organisation which is administering some aspect of a State program- maybe placing children in foster care. Suppose there is an attempt to impose an obligation on that organisation that it will place children with same-sex couples, but the organisation sees that as contrary to its religious ethos. In those circumstances there would be an arguable claim for indirect discrimination under s 22Z(1) when read with s 22L(1)(b). There would be the imposition of a condition on the organisation with which other (secular) organisations “comply or are able to comply, being a requirement or condition that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.”

However, given that the indirect discrimination analysis still leaves open a judgement about the “reasonableness” of the condition, then it may have been thought that s 22Z(2) will provide a clearer defence for a specifically “religious ethos organisation” if the organisation is “required” to contravene its basic beliefs. 

The Conversation article suggests that this might allow religious bodies to avoid obligations about reporting child abuse. But this seems a very fanciful suggestion. For a start, s 22Z only applies where a body is administering some State program. But suppose there were a State program involving young people being run by a religious organisation. It is really hard to imagine a religious doctrine that would require not reporting child abuse. The example given is the “seal of the confessional” in the Roman Catholic church. But how on earth would a State-supported youth program involve the administration of the sacrament of confession? The example seems completely unrealistic. The other examples offered (of noise or COVID-19 restrictions on religious ceremonies) also seem unrealistic, in that a State-supported activity would not involve running a religious ceremony.

Finally, the Conversation article suggests that the Bill would allow a Catholic soup kitchen to refuse to serve food to Jewish people! Such a suggestion is again a fantasy. Those who do the hard work of serving hungry and homeless people do not impose religious conditions on their clients. Presumably the suggestion is that if they did, then s 22W of the revised ADA would make it unlawful to do this, but s 22M(1) would provide an exemption. But for the s 22M exemption to apply it would be necessary to find some Roman Catholic doctrine or belief which favoured denying food to non-Catholics. That such a doctrine or belief does not exist can be demonstrated by the fact that there is currently no ban on such religious discrimination in NSW at the moment, but absolutely no evidence that Roman Catholics actually discriminate in provision of food!

The other example offered is of an Islamic school which decides to expel a year 12 student who no longer believes in Islam. Again, the same issues arise. Is this a realistic scenario? At the moment in NSW there is absolutely nothing stopping an Islamic school doing this. Yet there is no evidence I am aware of, of such practices. But suppose such a case did arise- is it “irrelevant” to the running of a school set up to teach and model the religion of Islam, for a senior student to be removed who will attack and undermine the faith of other students? I would argue that it is not irrelevant, and that a school may be entitled to take such a stance.

A Jewish employee and a Satanist pamphlet

The SMH article by Alastair Lawrie focusses on a specific example provided in the Explanatory Notes for the Bill to attack its provisions. The article says:

The notes provide: “A Satanist requests that a publisher print materials that promote the teachings of Satanism. A Jewish employee of the publisher requests that she not be required to facilitate the order …”

The Notes suggest that this dispute would be resolved in favour of the employee. The article takes particular umbrage at the suggestion that the job could be passed on to another business. But the first option suggested in the Notes is to give the job to another employee who has no problems with the order, which would seem to be the obvious solution. That part of the Notes uses this example to illustrate the operation of the “Siracusa” principles, a set of principles developed by the United Nations to deal with cases where different human rights need to be balanced (and cited in new s 3(2) to be added by the Bill). One of those principles is that limits imposed on rights should be “proportionate” to the interests being protected and “no more restrictive” than necessary. The Notes do not specify what mechanisms might be used to resolve the problem.

If we analyse this situation, if the employee were to be disciplined for failing to carry out the work, then under s 22N(2)(c) it could be argued that this was a “detriment” and unlawfully discriminatory. As the detriment would not be imposed directly because the employee was Jewish, but on the basis of the refusal to carry out the job, then the claim would be one under s 22L(1)(b) for indirect discrimination. In that analysis a court would be required to determine whether it was “reasonable” for the condition to be imposed on the employee, or not. If all good faith efforts were made to allow the employee to shift that job to someone else in the firm, but no-one else was available, then a court would have to consider whether the firm had acted “reasonably” in disciplining the employee.

The SMH article describes this as an employee being given a “veto” over the decisions of their employer. All sorts of horrific implications will follow: customers all over NSW will be denied services due to the scruples of religious employees.

Really? Has the same thing happened in those other benighted jurisdictions around Australia where employees already have a right to complain about religious discrimination? Or in places like the UK and the USA which have had such laws for many years? No.

There is one case in Canada where somewhat similar issues were raised. In Ontario Human Rights Commission v Brockie (2003) 222 DLR (4th) 174 Mr Brockie ran a printing business and declined to fill an order for letterhead and stationery for a gay and lesbian support group on the basis of his religious beliefs. The Ontario Superior Court upheld a finding of unlawful discrimination in relation to this refusal to supply ordinary commercial materials; but modified a very broad order that had been made by a lower tribunal to clarify that Mr Brockie was entitled to decline a printing order for literature which more explicitly “conveyed a message proselytising and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs.” (at [56])

The case is a reminder that there will sometimes be difficult lines to be drawn for believers as to what behaviour will amount to support and encouragement of doctrines to which they object, and what will not. The case was not the same as the example given in the SMH article, as Mr Brockie was the business owner. But as with that case, a court dealing with an objection by an employee in such a case would need to decide what was “reasonable” in a business context, and would not always rule in favour of the employee.

Conclusion

The Bill before the Parliament could use some fine-tuning. In the Freedom for Faith submission it is noted that the relationship between the general provisions relating to “religious ethos organisations” in s 22M, and the specific defences provided in some of the later provisions, should be more clearly spelled out. 

But in general terms the Bill provides useful reforms, and should be carefully considered as filling a gap in NSW law which most parties agree should be filled sooner rather than later.