While Sikh weddings will often feature the symbolic dagger known as the “kirpan”, that is not the connection I am writing about. In NSW at the moment both weddings in general, and kirpans worn by school students, have featured in debates about religious freedom. For weddings, those committed to religious beliefs are deeply concerned that all weddings are banned under COVID-19 provisions. In relation to the kirpan, I have written previously about a ban on these items applied to school students and the problems that raised for observant Sikh students. Both of these issues provide an example of what is called “indirect discrimination” on the basis of religion. The kirpan ban seems to have recently been sensibly modified to take into account concerns of the Sikh community. I argue here that the wedding ban should be approached in a similar way, and the deep-seated concerns of believers in NSW met by adjusting the current rules to allow the small number of people most directly involved to gather for weddings.
This question has been raised by a report that a Victorian council has required its employees to add a graphic to their email addresses featuring a “rainbow flag”. One employee is reported as saying:
the rainbow flag can look like moral support for identity politics or sexualities prohibited by many religions in this multicultural area
This is an important issue which will present challenges to employees of organisations which are determined to make political statements on various causes. To what extent can an employee in such an organisation decline to provide their own support for the stance taken by their employer, where the “core business” of the organisation is not involved? In this post I want to consider religious freedom protections that might apply in the reported circumstances.
A debate over the extent of religious freedom laws has arisen in NSW after an incident at a school where one student was stabbed by another, who was wielding a “kirpan”, a religious symbol in the form of a dagger worn by Sikhs. Politicians have expressed surprise that knives are allowed at schools at all, and there has been an announcement on Tuesday 18 May that from Wednesday 19 May there will be a ban implemented. It seems worthwhile to discuss the legal issues.
The recently released NSW Parliamentary Report of the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (handed down on 31 March 2021) has recommended that the NSW government introduce amendments to make it unlawful in NSW to discriminate on irrelevant grounds relating to religious belief or activity. The proposals supported by the Committee are a good idea and I think their recommendations (with a couple of minor reservations noted below) should be implemented.
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 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.
Freedom for Faith have posted this submission on the provisions of a Private Member’s Bill (sponsored by the Hon Mark Latham) being considered in the NSW Parliament at the moment. The Bill would plug a gap in NSW discrimination law by making religious belief or activity a prohibited ground of discrimination in NSW. The Bill is one that ought to receive serious consideration from the Parliament, and the submission (prepared for Freedom for Faith by Dr Alex Deagon, Senior Lecturer in Law at the Queensland University of Technology) should be very helpful in that process.
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:
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.
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: