Freedom of religion

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Churches and COVID-19 in NSW- PHO No 4 released

Following earlier announcements by the Premier of NSW, the rules regarding public gatherings in the State have been amended with effect from 1 July 2020, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (“PHO No 4”). This post comments on matters that relate to churches and other religious bodies. For my previous post on the rules under PHO No 3, see here.

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The “ordinary meaning” of sex

In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.

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More changes to NSW rules concerning churches

Further to my previous posts on the COVID-19 health rules affecting church services and activities (see here and here), and a paper I presented recently, the NSW Government has released amendments to the previous rules, which take effect today, June 13. This post provides a summary of the more important changes that will affect churches and other religious bodies.

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Worship in Coronavirus time- the latest NSW rules

I have previously commented on the rules concerning movement from home, gatherings in public places and opening of public premises which have been applied in Australia while we deal with the COVID-19 crisis. The NSW Minister for Health has just released the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (“RGM Order No 3”), which commences operation on Monday 1 June 2020 and repeals and replaces the previous orders. In this post I want to outline what the new rules will be in their effect on churches. (These comments will apply in similar ways to other religious groups, of course.)

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Proposed amendments to discrimination complaint handling

In NSW a private member’s Bill designed to improve complaint handing procedures in relation to allegations of discrimination and vilification is being considered by a Committee of the Legislative Council. As a number of the issues have arisen in cases where comments have been made from a religious perspective, Freedom for Faith have made a submission on the Bill (the Anti-Discrimination Amendment (Complaint Handling) Bill 2020). As a board member of Freedom for Faith I had some input into the submission, which for those interested can be downloaded here:

submission-from-freedom-for-faith-on-ad-am-billDownload

The Committee’s home page indicates that submissions closed today (April 26), but I suspect that if others wished to make submissions on the legislation and given the disruptions caused by the current situation, the Committee may be willing to accept late submissions.

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Church meetings and COVID-19 in Australia

For most believers in Australia, “law and religion” issues have been interesting but not part of their regular experience. But in this unprecedented time of the coronavirus pandemic, the simple activity of attending regular church services or home groups has been, like much of the rest of life, turned upside down. We now find that our normal weekly gatherings are potentially illegal! In this post I want to review some of the recently-made laws that impact church meetings in Australia.

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The Religious Discrimination Bill and legal practitioners

The second draft of the Religious Discrimination Bill continues to generate much debate. I am presenting a paper to the Newcastle Lawyers’ Christian Fellowship which gives an overview of the Bill, responds briefly to some of the recent criticisms, and explores some of the implications of the Bill for legal practitioners. The paper can be downloaded here:

newcastle-lawyers-cf-talk-march-2020Download
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Submission on Second Draft of Religious Discrimination Bill

As noted previously, the Commonwealth Government released a Second Exposure Draft of their proposed Religious Discrimination Bill in December 2019, inviting public comment by Friday 31st January 2020. I have now provided my submission on this draft, which is linked here for those who would like to consult it:

foster-submission-on-second-exposure-draft-religious-discrimination-billDownload

In short, I think this legisation is an important step in improving protection of religious freedom in Australia, and the second draft is an improvement on the first. But I recommend some clarification or change of approach in the following areas:

  • Defining Religious Belief – I recommend that the way that the courts should determine whether a claim to religious belief is justified should focus on sincerity rather than courts examining “reasonableness” ; I also think that the bar of “unlawfulness” determining what beliefs cannot be protected at all needs to be raised to mainly cover serious criminal offences;
  • Who is protected by the Bill? – I suggest that the Bill ought to protect religious groups as well as individuals; in this context I think that the limits on protection based on the concept of “commercial activity” need to be removed, though I agree that the kind of organisations protected need to be limited in other ways;
  • Who is bound by the Bill? – I agree that, as at present, both individuals and groups should be bound not to religiously discriminate; but I think the exemption given to government bodies from the provisions relating to religious free speech outside working hours should be rolled back;
  • The limits of protection – I argue that cases where religious freedom can be over-ridden should be limited to those where it is “necessary” in protection of important fundamental rights, as spelled out in the ICCPR art 18(3);
  • Protecting religious free speech – I argue that the good initiative protecting statements of religious belief in clause 42 should also be extended to “vilification” claims, so long as they do not contravene the limits set out in the clause itself and defined by the Commonwealth;
  • Conscientious objection by health practitioners  – I argue that the complicated provisions protecting conscientious objection to certain procedures by health practitioners need to be improved;
  • The Religious Freedom Commissioner – I support this new position but argue that the person concerned should be clearly shown to understand the issues facing religious citizens; 
  • A note on charities – I support the current provision ensuring that advocacy of traditional views on the nature of marriage not disqualify a body from being recognised as a charity, and suggest a further change to make this even clearer.