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:
An article in the Sydney Morning Herald (“Religious discrimination bill gives Australians ‘right to be a bigot'”, J Ireland, SMH 30 Jan 2020) sets up a number of “straw man” arguments so that it can knock them down and claim that the proposed Religious Discrimination Bill is harmful. I disagree.
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:
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.