The NSW legislature's Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 is now inquiring into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (NSW), introduced by Mark Latham, former ALP leader and now Pauline Hanson party representative in the NSW Upper House. The Bill is co-sponsored by Fred Nile.
The Committee's Terms of Reference are to -
inquire and report into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020, including whether the objectives of the bill are valid and (if so) whether the terms of the bill are appropriate for securing its objectives. ...
[and] have to regard to:
(a) Existing rights and legal protections contained in the Anti-Discrimination Act 1977 (NSW) and other relevant NSW and Commonwealth legislation;
(b) The recommendations relevant to NSW from the Expert Panel Report: Religious Freedom Review (2018);
The Bill is stated as having the following Objects -(c) The interaction between Commonwealth and NSW anti-discrimination laws and the desirability of consistency between those laws, including consideration of (i) The draft Religious Discrimination Bill 2019 (Cth) which has been released for public consultation, and (ii) The Australian Law Reform Commission’s reference into the Framework of Religious Exemptions in Anti-discrimination Legislation.
The object of this Bill is to amend the Anti-Discrimination Act 1977 (the Act) as follows—
(a) to establish principles of the Act for the purpose of reconciling conflicting human rights and anti-discrimination provisions, using international conventions and other instruments,
(b) to define religious beliefs and activities in a comprehensive and contemporary way, making religious freedoms and the fair treatment of believers and non-believers possible,
(c) to prohibit discrimination on the ground of a person’s religious beliefs or religious activities in work and other areas, so that religion has protections equal to other forms of discrimination in NSW,
(d) to prohibit discrimination against people who do not have any religious conviction, belief, opinion or affiliation,
(e) to provide that a religious ethos organisation is taken not to discriminate on the ground of religious beliefs or religious activities by engaging in certain conduct because of the doctrines, tenets, beliefs or teachings of the religion of the organisation, so as to recognise that religion is integral to the existence and purpose of these organisations; and that religious and associational freedoms are fundamental to a free and democratic society.
(f) to make it unlawful for an employer, qualifying body or educational authority to restrict, limit, prohibit or otherwise prevent people from engaging in a protected activity, or to punish or sanction them for doing so, or for their associates doing so,
(g) to ensure the provisions of the Bill extend to discrimination concerning applicants and employees, commission agents, contract workers, partnerships, industrial organisations, qualifying bodies, employment agencies, education, goods and services, accommodation, registered clubs and State laws and programs, and
(h) to limit exceptions to this part of the Act to those specified, such as for religious ethos organisations and genuine occupational qualifications, rather than encouraging tribunal activism.Specific provisions are referred to in the Explanatory Statement
Schedule 1[1] establishes the principles of the Act, including that the Minister, Board, President, Tribunal and Courts have fundamental regard to certain international instruments in carrying out functions under the Act and that the provisions of the Act are used in a way that is consistent with the purpose and meaning of those international instruments (the 1966 International Covenant on Civil and Political Rights, the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the 1985 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights). That is, any limitation imposed on a religious believer’s or non-believer’s manifestation of their belief or non-belief under the Act (including through the ‘reasonableness test’ for indirect discrimination in Part 2B) must not encroach on the protections afforded to that person in international law. These include that only ‘necessary’ limitations may be imposed pursuant to certain limited grounds, that any such limitations must ‘pursue a legitimate aim and be proportionate to that aim’ and be applied using ‘no more restrictive means than are required for the achievement of the purpose of the limitation’.
Schedule 1[2] inserts proposed Part 2B (proposed sections 22K–22Z) into the Act which makes it unlawful to discriminate against a person on the ground of the person’s religious beliefs or religious activities, or against a person of no religious conviction, belief, opinion or affiliation, in the circumstances described in the Part.
Division 1 of the proposed Part (proposed sections 22K–22L) contains specific provisions relevant to the definitional understanding and interpretation of the proposed Part.
Proposed sections 22K and 22KA define the terms religious activities (including an activity motivated by a religious belief, but not an activity that would constitute an offence punishable by imprisonment), religious beliefs (having or not having a religious conviction, belief, opinion or affiliation) and religious ethos organisation (private educational authorities, registered charities and other bodies conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion) for the purposes of the proposed Part and specifies what a person’s beliefs include and when a person is taken to hold a religious belief and to genuinely believe a belief. The ‘sincerity test’ (genuinely believes) gives effect to the approach consistently adopted by the highest courts in Australia (specifically in Church of the New Faith v Commissioner for Payroll Tax (Vic)), the United Kingdom, United States and Canada as a means to avoid courts determining matters of religious doctrine or disputation. This test does not interfere with the ability to impose legitimate limitations on religious activities, as allowed elsewhere in the Act and the proposed Part.
Proposed Section 22KB provides for a religious belief or activity to include past, future and presumed religious belief or activity.
Proposed section 22L sets out what constitutes discrimination on the ground of religious beliefs or religious activities, defining discrimination in a manner consistent with other parts of the Act. As with the remainder of the Act, it extends the grounds on which discrimination is unlawful under Part 2B to discrimination on the basis of characteristics that appertain generally to persons with particular religious beliefs or activities or characteristics which are generally imputed to persons of that religious belief or activity. This clarifies that the acts flowing from a person’s religious beliefs are not a component of the circumstances of the complaint; they are instead characteristics that attach to persons of religious belief. Thus it assists in avoiding the unintended conclusion that if an employer asserts it would discipline both a religious and non-religious employee for doing and/or saying the same thing, there must have been no discrimination against the person of religious belief.
Proposed section 22M provides that a religious ethos organisation is taken not to discriminate if it engages in conduct that is required because of the religious susceptibilities of the adherents of the religion, or that is consistent with, or furthers or aids the organisation in acting in accordance with, the doctrines, tenets, beliefs or teachings of the religion (for example, giving preference to persons of the same religion as the religion of the organisation). Importantly, this is an exception, not an exemption. The provision says that when a religious institution acts in accordance with its beliefs, this is not discrimination, as technically described at law. This brings NSW into line with international practice. In part, General Comment 18 of the United Nations Human Rights Committee recognises that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate” under the International Convention on Civil and Political Rights.
Division 2 of proposed Part 2B (proposed sections 22N–22U) prohibits discrimination on the ground of religious beliefs or religious activities in work.
Proposed section 22N provides that certain conduct, in relation to the religious beliefs or religious activities of an employee, is unlawful. In particular, it will be unlawful for an employer to restrict, limit, prohibit or otherwise prevent an employee from engaging in a protected activity, or punish or sanction them for doing so, or because their associate has done so. It is also unlawful to discriminate against a person by refusing the employee permission to wear a religious symbol or religious clothing during work hours (with exemptions relying on the reasonable circumstances and industry standards of that employment). This provision is modeled on existing protections in Western Australia, the ACT and the Northern Territory.
Proposed sections 22O and 22P provide that certain conduct, in relation to the religious beliefs or religious activities of applicants, commission agents and contract workers, is unlawful.
Latham's second reading speech states
The purpose of the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill can be stated in a single sentence: To extend protections against discrimination beyond existing categories of citizenship and identity in New South Wales to people of religious faith and non‑faith. The word "equality" is included in the title to reflect the equal standing to be given to matters of faith and spirituality in the coverage of the State's anti‑discrimination laws. Religious discrimination is an issue no government can ignore. In the past whenever discrimination has emerged in society, governments have legislated to outlaw such practices. This is how Federal and State anti-discrimination Acts emerged and evolved over time to quite rightly protect the rights of the elderly, disabled, carers, women and the transgender and gay communities. All forms of discrimination in society are bad. All forms of discrimination should be outlawed. Yet now the fastest growing form of discrimination in our society is against people of religious faith, especially Christians. We have all seen the high-profile cases of Israel Folau and Margaret Court, outstanding Australians treated like second-class citizens because they take a literal interpretation of theBible—the most important, influential and popular book in history; the book that has given civil society much of its moral code, our understanding of right and wrong; the book that stands today as one of the essential pillars of Western civilisation. Those who quote from theBible should not be hounded from the public square as Folau and Mrs Court have been. All religious faith that respects the sanctity of life and the goodness of the human soul and reaches out to others with the hope of salvation and compassion should be honoured in our society.
This is true of the clear majority of people who practise Christianity, Judaism, Islam, Hinduism, Buddhism and other organised religions and also atheists and agnostics of good secular faith. We are a stronger society and a stronger community for respecting those beliefs and also acknowledging the incredible voluntary contribution of churches and temples in New South Wales in caring for the poor, the sick, the disabled and the needy over a long period. The origins of the Australian welfare State lie in the mutual help and care by religious associations. Religious rights are not a fringe issue. They are at the heart of our society's origins and values. They are a basic matter of human rights. As clearly stated in Article 18 of the Universal Declaration of Human Rights:
Everyone has the right to freedom of thought, conscience and religion … and freedom, either alone or in community with others and in public or private, to manifest [their] religion or belief in teaching, practice, worship and observance.
When I refer to the rise of religious discrimination, it is not just in the cases of Mrs Court and Israel Folau. I know of Christians working for the New South Wales Government who say they are scared to admit to their Christianity in the workplace, who feel there is an official policy of inclusion for every letter of the alphabet except C and H. Under this Government, selective diversity policies have been introduced in the public service to ensure certain groups are included. Every letter of the alphabet seemingly has a flag, a network, a special ceremony to affirm and celebrate its identity, except the letters C and H: Christians and heterosexuals. It is a perverse policy of so‑called inclusion to exclude other groups but this is the new State-sponsored practice in New South Wales. It is a sad, ill‑conceived soulmate to other forms of religious discrimination.
We know the case of the wedding magazine run by Christians that was forced to close down because of third party advertising boycotts. We know of the Coopers Brewery boycott, punishing Christians for sponsoring a debate between Federal MPs on same-sex marriage. We know the case of the senior executive at a New South Wales accounting firm who was forced to resign from the board of the Australian Christian Lobby due to activist campaigning. We know of the Christian medical practitioners stripped of their accreditation for failing to surrender to the gender fluidity movement. We know of the academic sacked at Macquarie University because he was a director of the Lachlan Macquarie Institute Limited, a Christian training organisation. We know of university admittance rules that discriminate against people of faith, especially Muslims and Christians, who refuse to accept the new left‑wing political meaning of "diversity and inclusion".
We know of the workers fired for standing by their Christian beliefs and refusing to support anything other than traditional male-female marriage. We know of employers trying to control all aspects of their workers' lives, including their religious beliefs away from work. We know of the big corporate sponsors, like Qantas, trying to control sporting codes through the back door and relegate the importance of religious rights. We know of the multinational companies that have refused to allow staff to wear Christian crosses at work as part of their jewellery. And, it must be said, we know of other, longer standing discrimination against other religions, against Jews, against Muslims and against some of the relatively new religious communities in Australia. Each of them is an example of discrimination that warrants passage of the bill.
