Clear Need for Religious Freedom Provisions in NSW

31 March 2021

The Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 has tabled its report on the Inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.

A copy of the report can be found at the NSW Parliament’s website.

The Report, which quotes extensively from the submissions from Christian Schools Australia and other Christian school groups, comes after the broad public debate on the issue and the consideration by the Committee of 192 submissions, 19,502 responses to the online questionnaire and evidence from 57 witnesses across 47 organisations at the public hearings.  This was one of the most detailed consideration of these issues to have ever occurred in New South Wales.

The Committee made four recommendations, the first being:


Recommendation 1

The Committee recommends that the NSW Government introduce a Government Bill inserting discrimination on the grounds of religious belief or activity, where that activity is lawful, as a protected attribute in the Anti-Discrimination Act 1977 (NSW) by the end of 2021, and the Committee recommends using this Bill’s definitions of ‘religious beliefs’ and ‘religious activities’, the associated definition of ‘genuinely believes’ in section 22K and the associated interpretive provisions in section 22KA and section 22KB.

The onus is now clearly on the NSW Government, having received this Report from the Committee with its broad membership, to make these changes this year.  The Committee went on to make a recommendation regarding the content of the legislation:

 

Recommendation 2

The Committee recommends that the Government Bill should include the following:

  1. principles that give equal weight to all protected attributes under the Anti-Discrimination Act 1977 (NSW) (the Act) while recognising the special characteristics and protection requirements of religion
  2. reference to relevant international instruments (to the extent ratified) that protect the rights and interests of individuals and protected attributes under the Act
  3. consideration of relevant recommendations of the Ruddock Review, including having regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights to guide the operation of competing rights when limitations are imposed on them
  4. defined terms for religious beliefs, religious activities and religious organisations
  5. recognition that religion is an attribute that involves the expression of religious beliefs and lawful actions motivated by religious beliefs and the association of individuals and organisations in accordance with their religious doctrines, tenets, beliefs or teachings
  6. protection for not-for-profit religious organisations from discrimination on the grounds of religious beliefs or activities by engaging in certain lawful conduct because of their religious doctrines, tenets, beliefs or teachings
  7. provisions that balance the participation of religious organisations in State functions or programs and universal access to publicly funded goods and services.

This recommendation strongly aligns with our submission to the Committee and will provide vital, and long overdue, protections to people of faith in New South Wales.

The Committee’s recommendations were based on the nine findings they made during the inquiry process:

 

Finding 1

The Committee finds that there is a need to protect individuals from discrimination on the grounds of religious beliefs or activities as those terms are defined in the Bill and where those activities are lawful.

Finding 2

The Committee finds that there is a need to protect not-for-profit religious organisations from discrimination on the grounds of religious beliefs or activities by engaging in certain conduct because of their religious doctrines, tenets, beliefs or teachings.

Finding 3

There was strong public support for the Bill. Of the 19,403 responses to the Committee’s online survey in July-August 2020, 68.1% supported the Bill, 5.8% supported it with amendments, 0.7% were neutral, while 25.4% opposed the Bill. The Bill also attracted support from the peak Christian, Islamic and Jewish bodies in NSW.

Finding 4

The Committee found that the terms of the Bill were valid and succeeded in protecting people of religious faith and no faith from discrimination. From extensive public hearings, however, the Committee found several amendments to be necessary to improve the Bill. We regard the Bill as a useful template for this kind of legislation, but it has a number of shortcomings that need to be corrected.

Finding 5

The Committee found the Bill to be consistent with the structure and purpose of the NSW Anti-Discrimination Act. It provides new protections against discrimination; it does not take any away. As Anglican Bishop Michael Stead said in evidence, “This is not a Bill that protects people of religion if they discriminate and attack others. It’s a Bill that protects them against discrimination.”

Finding 6

The Committee found the Bill does not privilege religion over other protected attributes. It does not create a hierarchy of protections. Indeed, it can be argued that other attributes covered in the Anti-Discrimination Act currently enjoy special treatment because they are protected from speech vilification. This is true of Race (Part 2, Division 3A), Transgender (Part 3A, Division 5), Homosexuality (Part 4C, Division 4) and HIV/AIDS (Section 492XB). The Bill before the Committee has no such protections.

Finding 7

The Committee found that the Bill’s determination of the concept of ‘religious belief’ (genuinely and sincerely held) is consistent with the High Court’s ruling in Church of the New Faith v Commissioner of Payroll Tax (Vic) in 1983, and should be adopted in NSW law.

Finding 8

The Committee believes there is utility in applying the Siracusa Principles to each of the attributes covered in the Anti-Discrimination Act, not just for cases involving religious rights. A new clause in ‘Principles of Act’ is needed to ensure equal treatment of all attributes, with the effect that the Siracusa Principles’ conflict-resolution mechanisms are to be applied whenever any right covered by those Principles is concerned.

Finding 9

The Committee was concerned to hear evidence that the complaints-handling functions of Anti-Discrimination NSW are run by clerical staff (not trained lawyers), and that the organisation has been struggling to create proper computerised records. The acceptance of discrimination complaints can be very distressing and expensive for respondents. It should be handled by professional legal expertise. The Committee regards this as a basic competency standard for the NSW legal system.

 

Once again, these findings are a strong validation of the arguments we have been making for many years, and a clear repudiation of the false claims of those who oppose these protections.

We look forward to working with the NSW Government to ensure that legislation along these lines is passed as soon as possible.

 

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