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).
Australia now has two local Acts banning so-called “gay conversion therapy”, in Queensland and the ACT. An article on the ABC website on November 8, 2020 reports: “Gay conversion practices to be outlawed by the Victorian Government“. But this latest article demonstrates that some activists calling for these laws want to go well beyond outlawing horrible practices like shock therapy or “aversion” therapy. Those quoted in the article want to ban “conversations with religious leaders” on topics of sexuality. Such a law would be a gross violation of free speech and religious freedom rights, as well as an attack on those experiencing same-sex attraction who may want to be helped to live in accordance with religious teachings on these issues. Laws like this ought not to be passed.
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.
There has been a recent increase in the number of persons allowed to meet together for religious services in NSW. The current rules are to be found in the amended Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 (NSW) (“PHO 5”), effective 22 October 2020.
Most of us are chafing under restrictions on gatherings imposed by COVID-19 laws. Getting the balance right here is hard, and we want to give the government as much leeway as possible; but the restrictions have been very difficult for churches, and the rules adopted in some jurisdictions seem to discriminate against church meetings in comparison to other activities which are now allowed. These were the issues at stake in the recent decision of the United States District Court for the District of Columbia in Capitol Hill Baptist Church v Bowser (Case No. 20-cv-02710 (TNM), McFadden USDJ, Oct 9, 2020).
Capitol Hill Baptist Church has been meeting in Washington DC for 142 years. In recent days it has been prevented from gathering all at one time by local rules restricting all church gatherings, wherever held, to the fewer of 50 percent capacity or 100 persons. The Church is theologically committed to the view that all members of the church should gather together physically on a Sunday in one meeting. As they usually have about 1000 people attending the meeting on Sundays, they have had to move their meetings across the State border to Virginia, where they have been meeting outdoors with social distancing precautions and facemasks. They would like to meet in this way in Washington DC. Their action against the Mayor of the District claimed that the rules in place breached the provisions of the Religious Freedom Restoration Act (RFRA). They have now been successful in obtaining an expedited preliminary injunction enjoining the District from enforcing their restrictions “insofar as they prevent the Church from holding socially-distanced outdoor worship services in which congregants wear masks”- see pp 1-2 of the ruling.
I have commented previously on the question of the employment status of members of the clergy, which can be quite complicated. A recent decision of the Fair Work Commission, Solomon Woldeyohannes v Zion Church in Melbourne Australia Inc  FWC 4194 (11 August 2020) holds that an assistant pastor of a small incorporated church was an employee of the church, and was able to commence an action for unfair dismissal.
A brief update on my previous post on the COVID-19 rules applying to churches in NSW, where I referred to an “exemption” issued by the Minister for Health relating to weddings and “places of public worship” where there is more than one building on the premises.
The current Public Health Order governing “gatherings” has been formally amended with operation from Monday 14 September 2020 to implement this “exemption”. (For the amended text of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 see here.)
There is now a definition in cl 3(1) of the term “separate area” for “places of public worship”:
separate area, for a place of public worship, means a building— (a) that is separate from other buildings within the premises, and (b) has been designated as a separate building by the occupier of the premises, and (c) that is staffed by persons officiating or volunteers or other staff who provide services in that building only, and (d) that does not allow persons gathering in different buildings to mingle.
New cl 9 then sets out the rules concerning gatherings in places of public worship:
9 Directions of Minister about places of public worship
(1) The Minister directs that the occupier of a place of public worship must ensure—
(a) for a place of public worship with more than one separate area, the maximum number of persons in each of the areas is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space in the area, or
(ii) 100 persons, and
(b) for any other place of public worship, the maximum number of persons on the premises is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space on the premises, or
(ii) 100 persons.
(2) The Minister directs that the occupier of a place of public worship comprised of more than one separate area must ensure that a religious service, activity or event conducted in one separate area does not commence or end at the same time as another religious service, activity or event in another separate area in the place.
(3) Subclause (1) does not apply in relation to a wedding service or a gathering following a wedding service.
Note. Clause 14A(5) provides for the maximum number of persons for wedding services and gatherings following wedding services.
This rule allows a “place of public worship” (a formal “church building”) to allow different groups of up to 100 or the “4m2” number (whichever is the smaller) in separate buildings, so long as the events start and finish at different times. (Weddings are subject to a higher limit of 150, set out in cl 14A).
The only other change that may impact churches is that the residential gathering limit of 20 persons may now be enforced, not only against the occupier of the residence, but also against any visitors who join a meeting larger than 20- see new cl 11(1A). This reinforces the rule but will probably not have a major impact, given that most church home bible study groups would already be observing the 20 person limit anyway. Presumably it will make life easier for police in prosecuting persons who attend large parties at private houses.
Following my previous comments on COVID-19 rules applying to churches in NSW (see here for the most recent post), the NSW Minister for Health issued an “exemption” which eases some of the restrictions on Thursday 27 August. The exemption relates to weddings and “places of public worship” where there is more than one building on the premises.