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.
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.
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.
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.