A recent decision of the NSW Supreme Court has applied a rarely used provision in legislation setting up Australian universities to provide a legal remedy for a student penalised for her comments on a controversial issue. In Thiab v Western Sydney University  NSWSC 760 (10 June 2022) Parker J ruled that the actions of Western Sydney University (“WSU”) in penalising the student, Ms Thiab, for comments she had made expressing disagreement with the State’s compulsory vaccination requirements, were unlawful. The case is an interesting example of protection of a student’s freedom of speech through application of the legislation establishing the University, and would apply not only to “political” comments as in this case, but also to religious beliefs.
Public Health Orders
Updated NSW rules for churches
A new Public Health Order will apply from the beginning of Monday 29 March 2021 to churches in NSW: the Public Health (COVID-19 Gathering Restrictions) Order 2021. One of the biggest changes is that there will no longer be restrictions on singing in services (hooray!) There was actually a temporary exemption in place over the weekend of 27-28 March to allow this to happen a bit early. But this new CGR Order will now operate on a long-term basis. In this post I will just summarise the provisions affecting churches, and where they can be found in the new Order.
Latest NSW amendments to gathering rules for churches, weddings and funerals
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.
Capitol Hill Baptist case- COVID restrictions on gatherings unlawful
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.
Clarification of NSW COVID rules for churches- separate buildings
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.
Update on COVID-19 rules for churches- weddings and services
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.
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.
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.)