NSW Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020

18 May 2020

16.5 MINS

In the midst of this pandemic, last Wednesday Mark Latham gave his Second Reading Speech for his Religious Freedoms and Equality Bill 2020 in NSW Parliament:

The purpose of the 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 these 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.

I believe Australia to be one of the most tolerant nations on Earth. But we are not perfect. In this era of bitterly divided political debate, religion has become a punching bag for some. Religious discrimination is real, it is unacceptable and it needs to be outlawed. At our religious freedom rallies in Fairfield last year, many newly arrived migrants said, “I came to this country to get away from religious persecution. Why has it followed me here to Australia?” That is a very good question. Large parts of the community are sick and tired of attacks on their religion. Like me and others in this place, they resent the way in which activists are trying to undermine Western civilisation by undermining religion, by de-legitimising Christianity. Step by step, this campaign is trying to redefine theBible as hate speech.

Wherever the new round of religious discrimination has come from, it must end. Workers must be able to be hired and promoted without regard to matters of faith. They must be able to freely express their religious views away from the workplace. Professional people should not be forced to abandon their faith, the very basis of their existence, in the conduct of their duties. Religious organisations must be able to publicly hire venues, run events and organise charities, schools and clubs without prejudice. Our society should be free of discrimination against people on the basis of their faith or non‑faith. That is the purpose of the bill, to insert a new part 2B into the New South Wales Anti-Discrimination Act.

I think it is a valid question: Why then has the New South Wales Government been so slow to protect people of religious faith from discrimination? When the Act was legislated in 1977 the Wran Government initially proposed religious protections but then dropped them. In 1999 the Carr Government’s Law Reform Commission review of the Anti-Discrimination Act recommended for this Parliament to “include religion as a ground of discrimination”, but nothing happened. Two years ago the Federal Government’s Ruddock Religious Freedom Review recommended:

New South Wales and South Australia should amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s “religious belief or activity”, including on the basis that a person does not hold any religious belief.

The bill acts on the Ruddock recommendation. It is hard to know why Liberals in this Parliament have not already implemented the findings of their own elder statesman two years after his report was delivered to a Liberal Prime Minister. The New South Wales Government was willing to rush through a left‑wing abortion bill which caused incredible distress among religious communities. It has allowed the persecution of Christians by vexatious complainants to the New South Wales Anti‑Discrimination Board. Senior members of the Government, such as the Premier and Attorney General, have not stepped up in defence of Christians like Israel Folau and Margaret Court. Why the inaction? Why the neglect of religious freedom and progressing much‑needed anti‑discrimination laws? The Government has said it will not act until the Christian Porter bill is determined in Canberra. I too shared that view, worried about a Federal override of any State laws. But then the Commonwealth Attorney General, Mr Porter, wrote to me earlier this year explaining as follows:

You also raised the matter of the Commonwealth potentially overriding State or Territory legislation. As is made clear by Section 62, the Religious Discrimination Bill does not displace State or Territory laws.

Let me repeat: Section 62 of the Porter bill does not displace any of the laws of New South Wales. With no Federal override, under the Australian Constitution discrimination is a concurrent Federal‑State responsibility, as evidenced by the way in which the Australian Human Rights Commission and the New South Wales Anti‑Discrimination Board coexist. In effect, New South Wales now has a green light to proceed with a bill such as this. The Parliament has no reason to delay, no reason not to stand up for religious rights. I can also assure the House that my bill learns from the problems Christian Porter has encountered on the question of freedom of religious speech. I have drafted no such provisions. In 2018 New South Wales passed strong religious vilification laws introducing criminal offences under section 93Z of the Crimes Act. These remain in place. My bill is purely about protection against religious discrimination. It covers all denominations: Christians, Jews, Muslims, Hindus, Buddhists, Sikhs and others, and indeed agnostics and atheists. The bill is about inclusion—real, full-on, genuine, 100 per cent inclusion. Not selective inclusion but, rather, giving all people in New South Wales equal protection at law.

Our State’s Anti-Discrimination Act has provisions protecting the rights of the gay community, transgender people, carers, the elderly, disabled, women and on the basis of domestic status. We are a stronger State and a stronger Parliament for saying that discrimination against these groups is not only wrong but also illegal. It is time to do the same for people of religious faith and those of no faith. The time for alibis and excuses has expired. This bill is the product of an extensive consultation process. In September last year I released an exhibition draft, which was then subject to comment by human rights lawyers, academics, public submissions, members of Parliament and a wide variety of religious organisations. In particular, I thank the 41 participants who attended our very successful roundtable consultation in Parliament House on 11 October 2019.

Looking at the list of attendees, it is hard to identify a faith or denomination that was not represented. We even had an atheist present—me. All contributed in a spirit of cooperation and hope. Several improvements to the exhibition draft were suggested and have been incorporated in the bill before the House today. Let me go through the various provisions. The bill starts by listing the principles and the international instruments upon which it relies: the International Covenant on Civil and Political Rights; the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; and the 1984 Siracusa Principles, designed to govern dispute resolution within the terms of the International Covenant on Civil and Political Rights. In other countries and Australian States, religious anti-discrimination provisions are commonplace. They are supported by a series of international conventions.

In New South Wales perhaps it was thought that these conventions would never be needed, that our easygoing lifestyle would supersede the possibility of sectarian conflict. But times have changed. This issue can no longer be avoided. Across this Parliament there is support from parties, Left and Right, acting on our international obligations. Religious freedom and equality should be no different, abiding by the United Nations conventions listed in this legislation. The bill takes a best-practice approach, combining conventional anti‑discrimination law, as per provisions elsewhere in the New South Wales Act, with measures relevant to the unique nature of religion and religious discrimination. It seeks redress, for instance, against the rise of corporate power trying to suppress the rights of workers, the right to practise their religion in private time.

It also takes account of recent case law by which, internationally, it has become more difficult to preserve established legal protections for religious freedom. Given there is no one clear definition of “religion” under Australian law, right through to the High Court, at section 22K, the bill takes a minimalist approach. It protects religious activities motivated by religious beliefs, other than those that would constitute an offence punishable by imprisonment under the law of New South Wales or the Commonwealth. “Religious belief” is defined as having a religious conviction, belief, opinion or affiliation, such that it is sincere and genuinely held. Not having a religious belief is also covered. In line with part 4A of the Act, covering discrimination on the grounds of disability, the religious beliefs and activities covered include past, future, and presumed beliefs and activities.

At section 22L the bill adopts the conventional definition of discrimination, regarding less favourable treatment of an aggrieved person or a relative or associate of such person. Importantly, at section 22M it offers an exception for religious ethos organisations, including private educational authorities, registered charities and other bodies conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion—that is, organisations where religion is integral to their existence should not be expected to abandon their beliefs to accommodate the rights of other religions or non-believers. Religious ethos organisations and their vital work in society should not be made to jettison their ethos. Just as it would be wrong to tell the Mardi Gras not to be gay, or to tell an ethnic body not to be ethnic, religious organisations must be allowed to remain religious in their guiding principles and practices. The inclusion of religious charities as a religious ethos organisation is important given a ruling north of the border.

The Queensland Anti-Discrimination Tribunal held that the St Vincent de Paul’s Society is not a “body established for religious purposes” under the Queensland Anti-Discrimination Act—I am sure most people in our State would regard that as ridiculous. Under section 22M of this bill, New South Wales will avoid that kind of ruling. Currently, under anti-discrimination law religious bodies are granted exemptions in their employment and other administrative practices, as if they have done something wrong to minority groups in society. It is as if religious rights are thought to automatically clash with broader notions of equality of access and opportunity. Religious schools and charities, in effect, have been as treated as egregious, second-class citizens. My bill corrects this imbalance. It treats religion as an equality right no less deserving, no less legitimate, no less equal than any other human right. The bill has exceptions to discrimination law, not exemptions.

The provision at section 22M says that when a religious institution acts in accordance with its beliefs, this is not discrimination, as technically described at law. This is a foundational underpinning of my bill, consistent with international law such as General Comment 18 of the United Nations Human Rights Committee. Where human rights clash—such as in the conflict between gay and religious rights—one should not automatically prevail over the other. Rather, mechanisms are needed for legal dispute resolution. I will address those shortly through the Siracusa Principles enshrined in the bill. There are three other exceptions in the legislation before the House: first, private household employment, such as nannies and domestic help, so as not to intrude on family life; secondly, businesses that do not exceed five staff in size, as per the standard small business concessions elsewhere in the Act; and, thirdly, at section 22U exceptions for work and employment relating to religious rituals, customs, welfare services, and artistic and cultural events and performances.

It should be noted that the current exceptions for religious bodies under other parts of the Anti‑Discrimination Act are unaltered by this bill. The bill also limits exceptions in the new part 2B to those specified, such as for religious ethos organisations and genuine occupational qualifications, rather than encouraging tribunal activism. Importantly, the explanatory notes to the bill are more comprehensive than the traditional New South Wales drafting style. They give dozens of examples of how the bill should operate in practice. In this complex, sometimes contentious, area of law this should be a useful reference point for honourable members and the general public. I urge a reading of those examples for a full understanding of what the bill is trying to achieve.

The various sections of the bill cover discrimination at work involving employees, commission agents, contract workers, partnerships, industrial organisations, qualifying bodies and employment agencies; and also discrimination in the areas of education, accommodation, registered clubs, State programs and in the provision of goods and services. These are mostly standards provisions replicated from elsewhere in the Act. Extra provision is made in section 22N to act against employers restricting the private exercise of religious practice by their staff or punishing staff for the actions of associates of those staff members. A recent concern is the growth of employment contracts linked to vague notions of employee obligation, such as their impact on corporate image and diversity. These contracts are being used by companies to limit the religious freedom of employees well away from the workplace, most notably in the Folau case.

The principle is clear: Bosses do not own the private lives of staff, their beliefs, faith and religious activities. We are not a feudal society operating with the indentures of serfdom. Workers must be free to live a life separate to their obligations in the workplace. In an era of corporate political activism, this has become a fundamental requirement of the rights of labour. Thus the bill defines a breach: for an employer to restrict, punish or sanction an employee engaging in religious activity outside of work hours, away from the physical workplace, that does not directly criticise, attack and cause direct and material financial detriment to the employer. Such detriment does not include withdrawal of third-party sponsorship, contracts and other forms of financial, corporate support.

Employers might say they felt compelled to punish a religious advocate away from the workplace due to financial pressure from third-party sponsors. If so, they should seek relief using Commonwealth provisions governing secondary boycotts and/or write into their sponsorship contracts an employer’s right to fully control and manage their own staffing arrangements. Businesses should run their own business, not subcontract it out to advertisers. Sporting codes should run their own game, not hand it over to woke corporate sponsors. Workers have rights and one of them is to live a life free from corporate interference when they are not at work. This bill unashamedly puts the interests of worker freedom and worker rights ahead of corporate activism. It has been a while since I have quoted the Victorian Labor lawyer Josh Bornstein, but in this instance I most certainly will. In August last year on the ABC’s website he wrote of how, as a consequence of the Folau matter, millions of individual employment contracts:

Heavily favour the interests of the employer. It is now routine for employment contracts to require all employees to abide by all workplace policies, company codes of conduct and company ‘values’. The employee signs the contract without even having seen any of these documents or obligations, which are unilaterally promulgated by their employer.

Bornstein pointed out:

The contracts … seek to regulate employee behaviour, both at work and after hours. In this era of gig-work and Instagram, we have become unwitting brand ambassadors for our employers on a 24/7 basis. If we say or do something controversial after-hours and it’s disseminated online, we can be fired. Were the noted controversialist Jesus Christ alive today, he would be unemployable.

Bornstein concluded that these contracts are:

A stark expression of the employer’s absolute power. Employment contracts and the dark arts of brand management are being selectively deployed to suppress participation in the democratic process.

My bill seeks to break the absolute power of the big corporates and the dark art of the individual employment contract. It seeks to rebalance workplace power to a fairer relationship between employers and employees. The protections for the private lives of workers at section 22N (3), (4) and (5) are replicated at sections 22S and 22V, to also protect the rights of professional people and students to privately practice their religion. This bill brings New South Wales into line not just with most other Australian States, but also with international best practice. Until now, religious rights in our State have been treated as a low-order priority. But as the Ruddock review recognised, this does not reflect the requirements of international law, which gives religious freedom equal standing with other human rights and which also states that specific criteria must be satisfied before a limitation can be imposed upon religious rights. Ruddock showed the way forward in improving all aspects of the NSW Anti‑Discrimination Act.

An important challenge in protecting human rights is to reconcile and resolve conflicting rights. The rights and equal opportunities of some groups can clash with the rights and equal opportunities of other groups. In civil society, some areas of discrimination inevitably overlap. In fact, this is where the Ruddock review came from, to address questions of religious freedom in the context of the new same-sex marriage laws. The Ruddock committee recommended use of the Siracusa principles, which were developed by the International Commission of Jurists at a symposium in the Italian town of Siracusa in 1984 to address the tension of conflicting human rights. This bill acts on the Ruddock recommendation, requiring decision-makers interpreting the NSW Anti‑Discrimination Act to recognise that “limitations upon a person’s right to manifest their religion or belief must only be made where such are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”. Under the proposed Principles of the Act, limitations on religion must, among other matters:

a) Be prescribed by law;

b) Respond to a pressing public or social need;

c) Pursue a legitimate aim and be proportionate to that aim; and

d) Be applied using no more restrictive means than are required for the achievement of the purpose of the limitation.

The international human rights law is clear. Religious freedom cannot be extinguished merely because of a clash with another set of rights. Where there is conflict the bill requires, “the minister, boards, presidents, tribunals and courts” to limit any incursion upon religious freedom to that which is necessary and proportionate—that is, the minimum degree of interference that might balance the conflicting objectives. The recentNgole v University of Sheffield case in the Court of Appeal of England and Wales is a good example of this kind of decision-making. I have not got time to go into the details, but I refer honourable members to the judgement as a case study in moderating freedom of religious expression and professional obligations through a test of proportionality.

In the interests of providing certainty to both employees and employers in New South Wales, new section 3 in the Act requires decision-makers to have “fundamental regard” to the permissible purposes for limiting religious freedom under international law. In effect, this provides specific guidance as to when conduct will amount to indirect discrimination, thus equating the “reasonableness test” for such discrimination with the threshold required pursuant to the international standard. The Siracusa principles are badly needed in New South Wales to give guidance to tribunals and courts on how best to resolve these matters. As per the Ruddock recommendation, enshrining them in this bill is a big step forward for the law of New South Wales. In conclusion, New South Wales is a religious State. As the member for Bankstown has pointed out, we have the highest proportion of people in the Commonwealth who identify themselves as having a religion, at 65.5 per cent, that is 5 per cent higher than the national average. Tania Mihailuk has lamented how:

In NSW, neither major party has offered any assurances to the millions of faithful … For many (ethnic communities) their religious convictions are part of longstanding family customs and traditions stemming from their culture and form part of who they are. Religion is inseparable from multiculturalism. We must do more for the diverse communities of our State than just relying on token appearances by MPs at functions.

I say the member for Bankstown is right. It is a lot easier to dress up for ethnic communities than it is to do the detailed policy work needed to protect their rights. For both Labor and the Coalition in this place religious freedom has become the issue that dare not speak its name. This bill changes that. The bill says unashamedly: This is what a multifaith society looks like; this is what the best of multiculturalism looks like; this is what modern labour laws look like; this is what freedom and equality look like.

The process to get to a second reading speech has been long, deliberative and very consultative. I thank and acknowledge the members who have agreed to co-sponsor the bill: The Hon. the Reverend Fred Nile, the Hon. Rod Roberts and Joe McGirr, the member for Wagga Wagga in the other place. My hope is for the Government to progress the bill through an appropriate Committee process, and I will continue to make representations in this regard. If that is not possible, I will seek to have it debated and voted on here in the Legislative Council. It is long overdue, but religious freedom is now speaking its name, decisively so, justly so, in the New South Wales Parliament. I commend the bill to the House.
[Photo by Paul Carmona on Unsplash]

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  1. fred bennett 20 August 2020 at 3:51 pm - Reply

    100% in favour – well done Mark Latham – love your guts to stand up and be counted – Fred Bennett

  2. Linda Lam 22 August 2020 at 12:03 pm - Reply

    Thank you Dear Hon. Mark Latham MLC for speaking up in the NSW parliament. And I thank all parliamentarians and the community who support the Judea Christian heritage of this wonderful nation of Australia which has been named the southland of the Holy Spirit. I and most of our Christians brothers and sisters in Australia would like to see more people coming to know Jesus and to believe in Him through schools, universities and all the sectors in the market place for JESUS is the answer to the problems that Australia and the world are facing today.

    I treasured those days in the early 1970s when I first arrived here in Sydney when the percentage of the believers of Jesus was much higher. People were friendly and the crime rate was not as high. We slept with the front and back doors opened to have cool air in the summer months. And now a lot of us have to have security doors and windows for protection. Today’s law made it harder for us to share the love of Jesus and the gospel which is the good news of salvation through our Lord Jesus Christ. Many of us came here because of the religious freedom and freedom of speech but we seem to be losing that freedom day by day.

    We pray that the anti discrimination law (religious freedom) bill 2020 will be passed by the majority of the parliament.

    Emmanuel and Cheers in Christ!

    Linda Lam

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