The Victorian Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (which I will call the “CSP” law for short) passed the Upper House on 4 Feb, 2021. As I write it seems not to have yet received the Royal Assent and become an “Act” but that will no doubt happen soon. The government has signalled that the legislation will not come into operation for another 12 months (see the final sentence in this article.)
My previous posts (see here for the most recent) have expressed grave concerns about the effect of the law on religious freedom and specifically on the freedom of parents and others to encourage children to live in accordance with Biblical standards of sexual behaviour. It is astonishing that the Bill was rushed through Parliament in the face of concerns also being expressed by the Law Institute of Victoria, the Australian Medical Association (AMA) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP). (See this excellent post from Murray Campbell noting these issues.)
There are, it seems, very few legal avenues available to challenge the many problems created by this law. But in this post I want to suggest one which may be available- where the CSP Law purports to take away rights of religious freedom granted by the Commonwealth Parliament.
The NSW Government is currently inviting comment on draft legislation entitled the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020. The legislation has been drawn up in response to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, and as well as governing “secular” agencies caring for children, it will mandate a new scheme for child protection covering “religious bodies” (see cl 8AA definition of “child safe organisation”, para (c)). The Bill is generally a good idea, but I want to suggest one amendment which will be needed for it to properly protect religious freedom.
Many commentators concerned with free speech and religious freedom have expressed serious concerns about the Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic), now awaiting its second reading debate in the Victorian Legislative Council (which could resume on February 2, having swiftly passed all stages in the Legislative Assembly on 10 December 2020). Others who are sympathetic to the aims of the Bill have suggested that these concerns are over-stated- that the relevant criminal offences created by the Act are only applicable where “harm” or “serious harm” can be shown to a criminal standard, and hence that there will be few such cases. For example, an editorial from The Age which supports the Bill says:
It is important to note the government’s assurance that only in cases where such practices could be shown beyond a reasonable doubt to have caused injury or serious injury would they be considered offences under this legislation.The Age, Editorial, Dec 8, 2020
But the scope of this legislation goes well beyond the specific “injury” offences that are created (while these are problematic enough.) The Bill creates a powerful set of bureaucratic mechanisms by which religious groups presenting the classic teachings of their faith may be subject to investigation and “re-education” by human rights officers. It arguably makes the presentation of some aspects of Biblical teaching unlawful if the aim of that teaching is to encourage someone to follow that teaching in their own life. Despite the appearance of addressing horrific and oppressive quasi-psychological procedures inflicted on young people, the Bill goes well beyond this laudable goal, and will make it unlawful to provide assistance in obeying the Bible to those who explicitly and with full understanding request such help. Enactment of this legislation would be a serious mistake.
Residents of Sydney’s Northern Beaches local government area should be aware that a special Public Health (COVID-19 Northern Beaches) Order 2020 was published late today, commencing at 5:02 pm on Saturday 19 December. The effect of the order (made due to increased cases of COVID-19 in that area of Sydney) is that there is a “lockdown” in force for all residents, and except for a limited number of specific purposes no-one is to leave their homes. Nor is anyone from outside the area to travel into it. Most will be aware of this already, but this will means that no-one can leave home to attend their usual church service on Sunday Dec 20 if they live in the area, or their church is located in the area.
Schedule 1 cl 2 allows leaving home for “work”, which as previously discussed on this blog would seem to allow even a volunteer who was serving as an essential part of a church team to visit the church premises for the purposes of “live streaming”. Schedule 1 cl 14 allows for “a person who is a priest, minister of religion or member of a religious order—[to go] to the person’s place of worship or providing pastoral care to another person”. But other than these limited exemptions, and some specific provisions relating to weddings and funerals, church services cannot be held in person.
This Order expires at midnight on Dec 23. Hopefully it may not be required after that point if the current spread is contained.
I was invited to give a presentation to ministers of the Anglican Diocese of Sydney earlier this year on the legal implications of bullying in churches. The Diocese has kindly agreed that the presentation can be made more widely available. This links to the video and also has a link to a written paper to accompany the presentation.
The NSW Government has now released the text of the new more generous gathering rules which will apply from Monday 7 December, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 7) 2020 (“PHO7”). The new rules are much more generous in allowing churches to gather- in short, most indoor church meetings will only be subject to a new “one person per 2 square metres” rule, rather than a hard numerical cap. Restrictions as to outdoor gatherings have also been eased.
This is just a brief update to my last post about the recently released Change or Suppression (Conversion) Practices Prohibition Bill 2020. I have since had an opportunity to read some other documents released to the Victorian Parliament when the Bill was introduced, which give some more insight into what the Victorian Government views as the impact of the Bill on churches and other religious groups.
A bill dealing with the topic of what elsewhere has been called “conversion therapy” has been introduced into the Victorian Legislative Assembly: the Change or Suppression (Conversion) Practices Prohibition Bill 2020. Along with the Bill, there is an important Explanatory Memorandum which gives insight into what the Victorian Government thinks the Bill means.
The Bill is lengthy and complex and will warrant a great deal of careful study. But in this initial post I want to highlight some seriously concerning features. It seems at least arguable that the Bill will make it unlawful for some churches and other religious bodies to openly teach and proclaim the doctrines of their faith in Victoria.
Following a good run of low COVID-19 numbers in NSW, limits on rules around numbers for church services, weddings and funerals have been eased again. The latest amending Public Health Order, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) Amendment Order (No 3) 2020 has been made available on the NSW Legislation website. (A bit early this time! Most of it comes into effect at 12:01 am on Monday 23 November; some provisions noted below relating to weddings and funerals commence on 1 December.) I will aim to briefly outline the main changes relating to churches.
Those who follow public matters in Australia will remember the controversy in 2019 surrounding controversial comments made by celebrity rugby player Israel Folau. See here and here for my discussion of the legal issues around Mr Folau’s claim that he had been dismissed partly on account of his religious beliefs. That claim was later settled before proceeding to trial, in December 2019 .
In an interesting sequel, Mr Folau was then sued by Mr Gary Burns for “homosexual vilification” under the NSW Anti-Discrimination Act 1977. Mr Burns’ claim was rejected by the President of the Anti-Discrimination Board in April this year. Now his appeal against this decision to the NSW Civil and Administrative Tribunal has been dismissed, and the claim will go no further- see Burns v Folau  NSWCATAD 287 (18 November 2020).