The recently released NSW Parliamentary Report of the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (handed down on 31 March 2021) has recommended that the NSW government introduce amendments to make it unlawful in NSW to discriminate on irrelevant grounds relating to religious belief or activity. The proposals supported by the Committee are a good idea and I think their recommendations (with a couple of minor reservations noted below) should be implemented.
The Committee was convened to provide comments on a private Member’s bill, the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020, introduced by the Hon Mark Latham. I previously linked to a submission on the Bill provided to the Committee by Freedom for Faith. I also provided a more detailed comment responding to what I considered exaggerated and unjustified concerns about the Bill. While the Committee has not recommended wholesale adoption of the Bill, their report overall is very positive about the policy implemented by the Bill, and if taken up by the Government and supported in Parliament, the Bill would represent a good way forward to dealing with problems of religious discrimination.
The other important background to the Bill is the fact (which may be surprising to some) that NSW law currently contains no provisions making religious discrimination unlawful at the moment. The main statute dealing with discrimination, the Anti-Discrimination Act 1977 (“ADA”), prohibits discrimination on the basis of race, sex, age, homosexuality, transgender identity, marital or domestic status, disability, and carer’s responsibilities, but does not include “religion” in the list of prohibited grounds. Nor is there any general Commonwealth legislation forbidding religious discrimination- this was recommended by the Ruddock Report at the end of 2018, and two drafts of a proposed Federal bill have been put forward, but at the moment it is unclear when this proposal will return to the Federal parliament.
I hope this proposed Federal bill will be brought to that parliament soon for further debate and improvement. But in the meantime I think there are good reasons to support local, NSW, amendments to support the right of NSW residents not to be subjected to unwarranted religious discrimination. In broad terms, Commonwealth and State laws on discrimination usually manage to operate concurrently, although of course where a State law contradicted or diminished some protection provided by a Commonwealth law, the latter would prevail. But on balance it seems that amendments to the local ADA would be a good thing.
Summary of Committee recommendations
The Committee made a number of “Findings”, and then made 4 formal “recommendations”. It seems clear that not all of these were supported by the whole Committee, but that there was at least majority support for the recommendations. I will set out the recommendations and make a few comments.
Recommendation 1- the need for legislation
The Committee recommends that the NSW Government introduce a Government Bill inserting discrimination on the grounds of religious belief or activity, where that activity is lawful, as a protected attribute in the Anti-Discrimination Act 1977 (NSW) by the end of 2021, and the Committee recommends using this Bill’s definitions of ‘religious beliefs’ and ‘religious activities’, the associated definition of ‘genuinely believes’ in section 22K and the associated interpretive provisions in section 22KA and section 22KB.
This first recommendation is the most significant. The Committee recommends that the gap in protection against religious discrimination needs to be filled. It provides a timeline- “by the end of 2021”; it does not recommend waiting for the Federal legislation to arrive.
The question of “unlawfulness” as part of the definition
One qualification to the draft Bill is provided- that “religious belief or activity” only be protected “where that activity is lawful”. Under the Bill, s 22K defines “religious belief or activity” in a way which excludes “any activity that would constitute an offence punishable by imprisonment”. But the Committee noted that concerns had been expressed by some submissions that this would allow protection of some religiously-motivated activities that were against the law, even if not punishable by imprisonment.
The discussion on this issue is summarised by the Committee at 2.44:
For the avoidance of doubt, the Committee considers [that] a Government Bill should therefore only refer to ‘lawful religious activities’ as a protected attribute.
The somewhat unusual setting out of the Committee report means that the substantive discussion of this point is then to be found in paras 2.46-2.63. While differing views are reported, it is a bit hard to discern which of the arguments presented by the different submissions are accepted, and which rejected. In the end, though, the comment at 2.44 noted above is repeated at 2.84:
The Committee recommends the legislative approach in this Relevant Provision as suitable for a Government Bill with the following amendment:
In section 22K (Definitions), amend the definition of Religious Activities to read: ‘Includes engaging in lawful religious activity, motivated by a religious belief’.
I think the Committee is mistaken on this point. It seems that two different issues are being confused: (1) what should be recognised as a “religious activity”? and (2) should someone engaged in that activity be protected from discrimination? On the first question, it seems illogical (a category error) to exclude a view as being “not religious” simply because it is illegal. These are two different issues. To take a stark example, the view that unbelievers should be burned at the stake is clearly a “religious” view. Whether such a view should be protected, however, is a different issue. If an employer decides to dismiss an employee because they have executed unbelievers (even if for religious reasons), that could be a perfectly sensible decision (based on the commission of the crime of murder) and should be supported by the law. And nor, of course, would the Bill have prevented that employee being prosecuted for murder.
Let’s take a less obvious example. An employee breaks the speed limit on a Sunday while desperate to get to church on time (so arguably motivated by religion). They are caught and found guilty of illegal speeding. An employer could well decide that (especially if the employee is one of their paid drivers) they will sack anyone with a driving offence. Does the Bill prevent that outcome? No. The employer will say: “The dismissal was based, not on the religious activity of going to church, but on the speeding ticket.” So there would be no “direct” discrimination under s 22L(2)(a). If the employee sues for “indirect” discrimination, alleging under s 22L(2)(b) that there was the imposition of a “requirement or condition” with which non-religious people could more easily comply, the court would find either that there was no such “requirement” or that the imposition of the requirement was “reasonable”.
It is worth repeating, since some of the critique of the Bill seems confused on the point: the definition of “religious belief or activity” applies only for the purposes of a discrimination claim under the ADA, and is only the first step in that analysis. Something being a religious belief or activity is only the starting point of questions of liability. It does not automatically mean that the person who engages in such will win a discrimination claim. They will then need to show that they have been treated “less favourably” on the grounds of such belief or activity, in some protected sphere of life. And still less does having a religious belief or activity give any immunity from the operation of the other laws of the land! (The ADA actually makes this clear by providing in s 54 that it does not make unlawful anything required to be done by other legislation or a court order, as I pointed out to the Committee- see para 2.56.) This legislation is not a general “religious freedom” Act. It is a limited Bill which is simply designed to ban unjustified discrimination on irrelevant grounds.
My criticism of the Committee report at this point, then, is also a criticism of the Bill, for the Bill itself adopts the “imprisonment” standard to exclude protected activities. I still think there are good arguments for not mixing up the relevant categories and removing such activities altogether from being “religious”. Still, I have to acknowledge that “carving out” certain activities in this way is a pragmatic strategy that probably saves a bit of time in the analysis when dealing with more serious criminal behaviour.
But what concerns me about the removal of all “unlawful” activities from the definition, is the potential for protections against discrimination to be eroded by the making of council by-laws or excessively narrow regulations. Suppose a local council, seeking to develop a business arrangement with the Chinese government, were to enact a by-law forbidding the use of buildings by Falun Gong practitioners. The group runs a house meeting and one of its members is then sacked by a local business. Under the Committee’s proposals, the mere fact that the meeting was contrary to a by-law would exclude the claim for religious discrimination. In short, I think at this point the Bill has a better approach which is less restrictive of religious freedom. I don’t think the Committee’s proposed amendment should be adopted.
One aspect of the above recommendation which I think is worthy of full support is the comment that the Bill’s approach to “genuinely believes” in s 22K should be adopted. Under s 22KA a person holds a religious belief when they “genuinely believe” it. Under s 22K the definition of “genuine belief” means that “the person’s holding of the religious belief is sincere and is not fictitious, capricious or an artifice”.
This is the standard adopted under the common law of the United Kingdom, articulated in the important religious freedom decision of the House of Lords in R (on the application of) Williamson v Secretary of State for Education and Employment  UKHL 15,  2 AC 246 at , citing the Supreme Court of Canada decision in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. Adopting this standard means that the court will test sincerity and good faith, but will not be required to inquire into the content of the belief or its validity within the religious framework. But it will exclude obvious parodies such as the “Church of the Flying Spaghetti Monster”. (See here for an article where I discuss the complexities around courts deciding theological issues.)
Recommendation 2- how the law will work
The Committee makes a number of important comments about how the proposed law would work in its second recommendation:
The Committee recommends that the Government Bill should include the following:
(a) principles that give equal weight to all protected attributes under the Anti-Discrimination Act 1977 (NSW) (the Act) while recognising the special characteristics and protection requirements of religion
(b) reference to relevant international instruments (to the extent ratified) that protect the rights and interests of individuals and protected attributes under the Act
(c) consideration of relevant recommendations of the Ruddock Review, including having regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights to guide the operation of competing rights when limitations are imposed on them
(d) defined terms for religious beliefs, religious activities and religious organisations
(e) recognition that religion is an attribute that involves the expression of religious beliefs and lawful actions motivated by religious beliefs and the association of individuals and organisations in accordance with their religious doctrines, tenets, beliefs or teachings
(f) protection for not-for-profit religious organisations from discrimination on the grounds of religious beliefs or activities by engaging in certain lawful conduct because of their religious doctrines, tenets, beliefs or teachings
(g) provisions that balance the participation of religious organisations in State functions or programs and universal access to publicly funded goods and services
In general these are all good points. The Committee follows the recommendations of the Ruddock Report in suggesting that the local law include consideration of the “Siracusa Principles”, which have been set out by the UN as matters to take into account when dealing with competing human rights. In broad terms, there can be a tension between “religious freedom” and “non-discrimination” rights, and these principles provide a good framework for recognising that all relevant rights must be seriously taken into account.
To sum up what these principles are about, let me quote a previous guest post on this blog from Dr Alex Deagon:
The Siracusa Principles are part of an international law framework which specifies how established international human rights are able to be limited by domestic government. In the case of religious freedom, under Article 18 of the International Covenant on Civil and Political Rights religious individuals and groups have the right to manifest a religion in public or private in worship, observance, practice and teaching. This right can be limited only by ‘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’. The Siracusa principles specify that a ‘necessary’ limitation must be based on one of the above grounds, and respond to a pressing public or social need, pursue a legitimate aim, and be proportionate to that aim. Any assessment must be made on objective considerations and a state must not use a more restrictive means than is required for achieving the purpose of the limitation. In short, this sets a high threshold and is a significant burden for any state to meet. Religious freedom cannot be restricted lightly or haphazardly, but can be if necessary.
Recommendation 3- Resourcing the Anti-Discrimination Board
The Committee recommended:
that the NSW Anti-Discrimination Board be sufficiently resourced to ensure that it can discharge the functions flowing from the recommendations in this report and the Board employs qualified lawyers (not clerical staff) to discharge its complaints handling responsibilities.
This seems a sensible recommendation and arises from some cases where claims may have been allowed to proceed in the past, where they might have been limited at an early stage as they were not justified under the legislation.
Recommendation 4- further review in the future
The final formal recommendation of the Committee was:
The Committee recommends that there be a broad-based review to update the Anti-Discrimination Act 1977 (NSW) but that this should not delay the NSW Government seeking passage of their Bill through the NSW Parliament. The review should assess the effectiveness of the religious vilification provisions in the NSW Crimes Act 1900 and whether religious vilification protections are required in the Act.
Some of those making submissions to the Committee would like to have seen an early introduction of religious vilification provisions into the ADA. The Bill did not propose this. The question of whether such laws are a good idea is still a matter of some debate. My own view is that limits on free speech on religious matters need to be very carefully qualified if they are to be introduced at all- see my paper on these issues here.
These proposed changes would be a good initiative, with some “fine tuning” as noted above. There is a real gap in the law of NSW in laws prohibiting unjustified discrimination on the basis of religious belief or activity. The proposals made here would allow a good law which recognises the general rights of religious organisations to operate in accordance with their faith, but makes it unlawful for detriments to be imposed on NSW believers on irrelevant grounds, just because of their faith commitments.