Independent MP Mr A H Greenwich last year introduced a private member’s bill called the Equality Legislation Amendment (LGBTIQA+) Bill 2023 (“the Bill”) into the NSW Parliament. It is understood that time will be allowed for debate on the Bill on February 8, 2024. Freedom for Faith has an excellent overview of the many areas covered by the Bill and why the Bill should not proceed. Most private member’s Bills are not approved, but there is a danger that some MP’s might support some of the provisions of this Bill. In this post I will focus on some of the dangers to religious freedom in NSW if the Bill were passed. (There are so many that I may not cover them all in one post, and if I can I will try to pick up those I miss here in a later post.)

In this post I will focus on the proposed amendments to the NSW Anti-Discrimination Act 1977 (“ADA”).

Religious freedom in NSW is protected in very limited ways at the moment, but one of those ways is by “balancing clauses” included as part of the discrimination law. The fact is that some of the more recent “prohibited grounds” of discrimination under the ADA cut across moral principles that have been taught by religious groups for many years. To balance out the right of people not to be unjustly treated on the basis of these attributes or behaviour, with the right of religious groups to operate in accordance with their faith commitments, the ADA (like discrimination laws all around Australia) contains provisions that clarify the balance to be struck.

For example, a fairly non-controversial example is that the ADA forbids discrimination on the basis of sex, but traditional Roman Catholic teaching is that only men can be ordained as priests. The ADA accommodates this clash by allowing the Church to operate as it has for centuries in appointing priests, respecting the freedom of the church to operate in accordance with its faith. This is done at the moment by section 56, which reads as follows:

56 RELIGIOUS BODIES 

Nothing in this Act affects– 
(a) the ordination or appointment of priests, ministers of religion or members of any religious order, 
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order, 
(c) the appointment of any other person in any capacity by a body established to propagate religion, or 
(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

NSW ADA s 56

Section 56(a) deals with the issue of the ordination of clergy. Other parts of the section authorise training, appointment to religious roles, and other acts or practices in accordance with religious belief which might otherwise clash with discrimination law. Various stances taken by religious groups- that sex should be reserved for a husband and wife who are married to each other; that a person’s sex is determined by their biology- may not be popular in the wider community, but on the whole the solution to those problems is for those who disagree with those stances to choose not to be a part of those religious groups.

At the moment a number of provisions of the ADA in NSW do not apply to a “private educational authority”. This somewhat odd feature of the law (it is not reflected in other such laws around Australia) may have been introduced because the vast majority of private schools are run by religious bodies. The Bill removes these private school exemptions applying to discrimination based on “transgender grounds” (s 38C(3)(b), s 38K(3)), marital or domestic status (s 40(3)(c), s 46A(3)), disability (s49D(3)(c)), homosexuality (s49ZH(3)(c), s49ZO(3)), and age (s 49ZYL(3)(b)). However, it does not remove the exemption applying to decisions made by private schools on the basis of sex (s 25(3)(c), s 31A(3)(a)).

One can argue that the exemptions applying to private schools simply because they are not run by the government, are not appropriate. But the balancing provisions in section 56 remain crucial to preserving the freedom of religious bodies to operate in accordance with their faith commitments. These provisions would also apply to private schools which are run by such religious bodies.

The “Equality” Bill seeks to limit religious freedom by radical amendments to s 56. The amended s 56 (as altered by item [40] in Sched 1 to the Bill) would look as follows:

56 (1) Nothing in this Act affects– 
(a) the ordination or appointment of priests, ministers of religion or members of any religious order, 
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order, 
(c) the selection or appointment of a person to exercise functions in relation to, or otherwise participate in, a religious observance or practice, or
(d) another act or practice of a body established to propagate religion that—
(i) is reasonable and proportionate in the circumstances, and
(ii) conforms to the doctrines of the religion, and
(iii) is necessary to avoid injury to the religious susceptibilities of the adherents of the religion.(2) Subsection (1)(d) does not apply in relation to—
(a) employment and education by religious educational institutions, or
(b) employment and the provision of goods, services or accommodation by religious bodies providing goods, services or accommodation to the general public.

Amended s 56, additions in bold

(The current drafting of the amendment does not include the addition of the numeral (1) but I have added it here as it is obviously intended to be present.)

The effect of the amendments would be seriously erode any protection for religious bodies provided by subsection 56(1)(d). First, it would make that protection only available where the act or practice of the body is “reasonable and proportionate”. But these words, while they sound fine, introduce a large area of subjective decision-making, and decisions as to their application will have to be made by a tribunal or a court which is not part of the religious body concerned, and will almost certainly not share their religious views. I have written a journal article which spells out the areas where secular courts and tribunals should apply religious doctrines, and where I argue they should not: see “Respecting the Dignity of religious organisations: Courts deciding theology?” University of Western Australia Law Review Vol. 47 (2020) p. 175 – 219.

In that paper I conclude that in general, except where resolution of doctrinal issues is needed to resolve a property dispute or a consensual contract issue, secular courts should not be involved in ruling on issues of faith:

There are good reasons to be cautious about courts making pronouncements on religious questions. While these questions are not always as “irrational” as has sometimes been suggested, it is certainly true that most secular judges are not really competent to make detailed findings about the content and interpretation of theological truths. This “competence” argument is all the stronger when we consider the strong principles favouring religious freedom, an aspect of which has always been seen as the dignity and right of religious bodies, and religious persons, to determine for themselves which views they hold on these matters.

Foster (2020) at p 218.

The second change made by the amendment to s 56 is that under s 56(2)(a) it will not apply at all to employment and “education” decisions by religious educational institutions. In other words, a faith-based school such as a Christian, Jewish or Islamic school, will be prevented from taking its faith commitments into account in deciding who to employ, or not employ, and in the standards of conduct it prescribes for its students to observe. This is a shocking interference with religious freedom. Faith-based schools are set up and funded (at some expense) by parents in order to offer education in accordance with the world-view of a particular religion. Education, as modern educational theory clearly holds, is not just a matter of conveying facts. Pupils pay attention to how teachers behave and the priorities they signal by what they do as well as what they say. The very purpose of a faith-based school is to provide a model of how a religion operates in practice as well as providing facts to repeat in an exam. If such a school cannot apply its faith in deciding who will teach the students, and what behaviour is acceptable among students, it may as well close down!

The third change that would be made by the new s 56 would impact all religious bodies “providing goods, services or accommodation to the general public”. Leave aside the possibility that even a local church might be caught if it offers the “service” of religious ceremonies on a Sunday or Friday to anyone who wants to attend. Groups attacked here would range from, say, a church group offering a school holiday club for children, right up to a major religious hospital or aged care facility. Such bodies could not make “employment” decisions in accordance with their faith. A Catholic relief organisation set up to operate on the principles of the Roman Catholic faith could be required to employ someone who openly objects to Roman Catholic moral principles relating to marriage.

In short, the amendments to s 56, if enacted, would radically undermine the freedom of religious groups to operate in accordance with their faith. They, along with the other proposals in this Bill, should be rejected if they come to a vote in the Parliament. As noted above, Freedom for Faith has provided a summary of the other proposals in the Bill, and links at that website will allow those who want to, to write to their MP to let them know their views.