Religious Freedom amendments introduced in NSW Australia

Today the Rev the Hon Fred Nile, for the Christian Democrat Party, introduced a Bill to add “religious beliefs or religious activities” into NSW legislation as a prohibited ground of discrimination. The proposed Anti-Discrimination Amendment (Religious Freedoms) Bill 2018 will add new Parts 3B and 5A into the Anti-Discrimination Act 1977 (NSW) (“ADA”), making it unlawful in various areas to discriminate on the grounds of religion, or to subject religious bodies to a detriment. The proposals will also make it unlawful to penalise someone for holding views on marriage as the union of a man or a woman, or for holding the view that there are only two genders.

The CDP is a minority Party in the NSW Parliament, and the Bill is a Private Member’s Bill, so it is not clear whether it will be fully debated, let alone enacted. But it is an interesting and worthwhile proposal which may lead to clarity in the future on the need for changes to the law of NSW. The Second Reading Speech, which provides an overview of the Bill’s provisions given by the mover, can be found in the Parliamentary Hansard record here. I will briefly summarise the provisions.

Part 3B- a new “prohibited ground” of discrimination

It may be of some surprise to many that NSW law at the moment does not make it unlawful to discriminate against someone on the grounds of their religion. Prohibitions on religious discrimination are found in most other jurisdictions around Australia, but currently not in NSW or the Commonwealth. The Ruddock Panel on Religious Freedom has recently reported to the Commonwealth government, and some of their recommendations may relate to this issue at the Commonwealth level. (My submission to the Panel can be found here.) But in the meantime, there is nothing to stop the NSW Parliament from passing laws on the issue (although if and when the Commonwealth chooses to legislate on the area, the NSW law will have to be consistent with Commonwealth law, in order not to be invalid).

In Division 1 of Part 3B there is an important preliminary definition of “religious beliefs or religious activities”, in s 38U:

religious beliefs or religious activities includes the following: (a) having a religious conviction, belief, opinion or affiliation, (b) engaging in religious activity, including activity motivated by, or closely or directly connected to, a religious conviction, belief, opinion or affiliation.

It is clear that this will pick up, not just “Sunday worship” activities or “religious ceremonies” such as Lent or Ramadan, but also other actions that are directly connected to, or motivated by, religious belief.

Following the pattern found in the other Parts of the ADA, the Bill then in s 38V defines different types of behaviour which is forbidden- in general terms, this picks up “direct discrimination” in s 38V(1)(a), and “indirect discrimination” in s 38V(1)(b). “Indirect discrimination” applies where the religious belief or activity does not seem to be the main ground for less favourable treatment, but the requirement imposed will have a harsher impact on believers than on others.

An example of direct discrimination would be where an employer directly says: “we won’t employ Christians here”. An example of indirect discrimination would be where an employer says: “All employees must be available to work all day on Sundays, with no exceptions”, which would have a possibly serious impact on Christians who attend church on Sundays. In the case of indirect discrimination, there would still then be an issue as to whether the requirement was “reasonable having regard to the circumstances of the case”. There may be some jobs, for example, where it would be impossible to organise rostering to allow employees to attend church. (See, for example, the UK decision in Mba v London Borough of Merton [2013] EWCA Civ 1562 where such a case was held to have arisen.)

The Bill then spells out areas of life where these types of discrimination are prohibited. “Discrimination in work” is forbidden under Division 2 (covering applicants and employees, in s 38W, and a range of other work-related areas, such as commission agents, contract workers, partnerships, local councils, industrial organisations, qualifying bodies, and employment agencies.) There are then some specific “exceptions” to these general prohibitions. In Division 3 religious discrimination is forbidden in the areas of education, provision of goods and services, accommodation, and registered clubs. Division 4 then provides some general “exceptions” which apply to the whole of Part 3B, covering “special needs” and sport.

It is worth noting that the amendments in the Bill start by adding a new definition to s 4, that of “faith-based entity”. This new definition picks up a wide range of bodies that operate on a religious basis, and includes bodies previously protected under s 56 of the ADA, such as a “religious order” and “body established to propagate religion”, as well as broadening out to include other religious bodies such as one “established for, or operating in accordance with, a religious ethos or faith-based mission, objective or ethos”.

The definition of a religious body is an important part of any proposals to make religious discrimination unlawful. That is because it is clear that religious bodies will often want to select who they appoint to do their work, based on whether those people agree with their religious beliefs. A danger to avoid in protecting individual rights to religious freedom, is that of pitting individual believers against corporate religious bodies. Legislation in this area needs to accommodate the rights of such bodies to operate in accordance with their religious ethos, as well as recognising the rights of individuals not to be arbitrarily excluded from benefits and services where their religious beliefs ought not to be relevant to such decision-making. To exclude someone from cooking hamburgers at McDonald’s because they are not Roman Catholic seems obviously wrong; to exclude someone from running a Roman Catholic youth club because they are not Roman Catholic just seems sensible.

This principle, that religious bodies need to maintain the authority to appoint only people who share their religious beliefs, is well-recognised in international law, certainly in relation to “core” activities such as running worship services. How to deal with those who are engaged in other activities run by such groups is a more debated question.

In new Part 3B, this question is partly resolved by providing that religious bodies are not bound by some of the relevant prohibitions. In new s 38W, which prohibits religious discrimination in employment, we find that under s 38W(5)(c) the general rule against religious discrimination in employment does not apply to “faith-based entities”.

The amendments also preserve, and expand, the general defence in Part 6 of the ADA under s 56. This provision will continue to provide a general exemption from the operation of the ADA for decisions made by religious bodies concerning ordination of clergy, or appointment of persons to act for the body, or other acts or practices consistent with the body’s “doctrines, tenets, teachings and beliefs”. So, for example, if a church’s decision not to hire its hall to a group representing another religion, were to be challenged under new s 38ZI forbidding discrimination in provision of “goods and services”, the church would probably have a defence under s 56(d), that to do so would be contrary to its “doctrines, tenets, teachings and beliefs”.

The s 56 exemptions will operate both in relation to Part 3B as well as continuing to operate in relation to the other, existing, Parts of the Act.

To return to Part 3B- there is an interesting final provision in the new Part, s 38ZM, which is designed to allow the President of the NSW Civil and Administrative Tribunal to strike out a claim at an early stage if it is “contrived” or “disingenuous, malicious or dishonest”.

New Part 5A- no detriment to be imposed on faith group

New Part 5A is aimed at preventing government bodies from discriminating against “faith-based entities”. The definition of these in s 4, as noted previously, is quite broad, and examples given include not only churches but religious schools and hospitals, “hospitality and catering services”, and “media platforms and voluntary associations”, so long as they have a general “ethos” of religion. Arguably this would also include, for example, a professional partnership such as a firm of lawyers or a medical practice, so long as these had explicitly religious aims or ethos.

Section 53B then sets out what imposing a detriment means. In broad terms the imposition of a detriment in s 53B is framed in ways which match the prohibition on “direct discrimination” and “indirect discrimination” noted previously, with an additional detriment of being “obligated to comply with” a requirement or condition that would conflict with its religious commitments.

Government bodies or officials are then required not to deny funding to a faith-based institution, or to subject it to a detriment, or to refuse to make a grant to such an institution, on the grounds of its faith commitments. Nor is a government body to deny goods, services, or benefits on that basis. These provisions are presumably designed to deal with the kind of situation arising in New Zealand recently, where a faith-based lobby group had its charitable status administratively revoked due to its opposition to same-sex marriage.

Other amendments

There are some other minor amendments to other parts of the ADA to fit in with the new provisions. There are, however, some important additional provisions added in at the end of the Bill.

New clauses 56(2) and 56(3) provide that the general defences under s 56 do not apply to what may be summarised as religiously motivated advocacy of the use of violent force or unlawful coercion. But s 56(4) says that it is not intended to stifle public debate on the issues.

New s 56A is an unusual and wide-ranging provision which attempts to implement in a very direct way the right to religious freedom of individuals contained in article 18 of the ICCPR. For those not familiar with it, art 18 provides as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Under s 56A, then, there is a broad defence to any claim of discrimination brought under other provision of the ADA, for “any person” who is exercising rights given by art 18. It should be noted that this will extend the existing defence provisions under s 56 (which apply to religious bodies) to individual believers.

New sections 56B and 56C then provide that there is a general defence against an action under other provisions of the ADA, if such action is based on a person’s beliefs that marriage ought to be between a man and a woman, or the belief that “a person can only be one of 2 genders (that is, either male or female)”. These provisions, of course, pick up two of the important “hot button” issues of today, where there is evidence that those with traditional views in these areas may be subjected to detriment or legal action.

New section 58, by contrast, operates as a broad-based defence to religious discrimination claims under Part 3B or part 5A, where such a claim may be brought against a local council making an approval or zoning decision about a place of public worship. While I generally support the overall aims of this Bill, I have to say I have some disquiet about this provision. It seems to place an undue amount of power in a town planning body to discriminate on religious grounds.  I reviewed an excellent book on this topic by Noel Villaroman a few years ago.

The final substantive provisions of the Bill are amendments to the Education Act 1990, which insert a general statement of principle about the priority of a parent’s views on a child’s “religious and moral education”, and also a qualification on the power in s 83E of that Act to suspend funding to a school, to make it clear that funding cannot be suspended merely because a school (usually a religious school) operates on the “belief or conviction that marriage and family is based on the concept of a union between one man and one woman”.

Conclusion

As noted, the Bill is a Private Member’s Bill, and it is unclear whether it will receive further detailed consideration or discussion. I have only been able to offer a broad overview here, and there are other aspects that would warrant further consideration. But overall it seems a good initiative, which will at least raise these issues for discussion, and lead to further amendments to support religious freedom in NSW.