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The New South Wales Government is currently inviting comment on draft legislation entitled the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020. The legislation has been drawn up in response to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, and as well as governing “secular” agencies caring for children, it will mandate a new scheme for child protection covering “religious bodies” (see cl 8AA definition of “child safe organisation”, para (c)). The Bill is generally a good idea, but I want to suggest one amendment which will be needed for it to properly protect religious freedom.

The phrase “religious body” will no doubt cover churches, and other religiously based organisations caring for children. There is a formal definition of the term in s 15A of the main legislation being amended, the Children’s Guardian Act 2019; though oddly the most natural way of reading that Act is that this definition only applies for the purposes of Part 4 of the Act (see s 10, which provides that its definitions, including that in s 15A, apply “in this Part”.) But even though the new amendments are in a new Part 3A, it seems that Parliament intends the definition in s 15A to apply (and this issue may be corrected in the final version passed by Parliament).

The definition is as follows:

“Religious body” means–
(a) a body established for a religious purpose, and
(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

Children’s Guardian Act 2019, s 15A

Experts in child protection will no doubt have their own views, but to my eyes these amendments look to be a good idea, and to set up standards which will hopefully help in the vital task of keeping children safe. While the vast majority of churches and religious organisations are not places of danger for children, the dreadful sins and criminal acts committed in some churches and by some clergy, revealed by the Royal Commission, mean that religious groups need to be hyper-vigilant in caring for children.

However, one feature of the new legislation is that it allows guidelines for behaviour to be laid down by public servants without those guidelines being approved by Parliament. New cl 8B does explicitly lay down 10 “Child Safe Standards”, and then under cl 8BA(2)(c), one of the things that must be observed are “guidelines issued by the Children’s Guardian”.

A draft set of guidelines has been circulated, which is good practice. But there are some concerns raised by these “guidelines” for religious groups, in particular those aimed at implementing Child Safe Standard 4: “Equity is upheld and diverse needs are taken into account.”

Again, it needs to be stressed that on the whole these are good ideals. But we do find the following in the guidelines:

• Under a listing of “barriers” to religious groups implementing the Standard: “Some people in faith-based organisations do not accept sexuality and gender diversity.” (at p 19)
• Another one on the same page: “Discussion of ‘healing’ can have a negative impact on people with disability.”
• A suggestion for how organisations should act: “Contact LGBTIQ+ community organisations to build relationships and look for opportunities to work together” (at p 20).
• An example put forward as one to follow is a group which has provided: “an apology to LGBTIQ+ friends and to all who have been adversely affected by the teachings and behaviour of Christians and their churches” (at p 21).

These are fairly mild suggestions, but it is easy to see the direction they are heading. One point to make is that the bold assertion that some people “do not accept sexuality and gender diversity” is quite ambiguous. Few Christians, if any, would deny that there are people in the community who will identify with a particular “sexual orientation” (if that is what “sexuality” means) and that some see “gender” as a category which is fluid or can change. In that sense they would “accept the existence of” such views. But the word “accept” here seems to mean: “affirm the validity” of choices to engage in sex outside the context of a man/woman marriage, or assertions about sexual identity.

In that case, the “barrier” here is a fundamental part of the religiously based beliefs of many religious groups. Assertions that working together with LGBTIQ+ community groups will change these long-held faith commitments sound unlikely and, one would think, not always to be welcomed by those groups. The last quote is particularly pointed by referring to “adverse” effects caused by “the teachings” of Christianity. There seems to be a suggestion that these “teachings” need to be condemned.

These are issues where the community is deeply divided. But in NSW we have a long tradition of making space for religious groups serving the community to act in accordance with their beliefs. In s 56(d) of the Anti-Discrimination Act 1977, for example, we see that other parts of that Act do not apply to an “act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.

While supporting the aims and the principles set out in the proposed Bill, it would seem to make sense to alleviate the concerns of religious groups who would otherwise support the initiative completely, that the government is not aiming to impose a new secular orthodoxy on them. As hard as it is to believe, in Canada a few years ago a Christian couple had foster children taken away from them by local child support workers because they would not tell the children that the Easter Bunny and Santa Claus were real! (See the BBC report here, and the case holding that this decision was an unlawful breach of religious freedom here.)

It would go some way to reducing these concerns if the amendments to the Act included a clause similar to s 56 of the ADA, making it clear that administrative guidelines made under the Act cannot require a religious group to adopt or support a practice that is contrary to the doctrines, beliefs or principles of the group. Such an amendment would go a long way to ensuring that all religious groups would wholeheartedly support this otherwise admirable initiative.

Comments on the Exposure Draft have been invited by 29 January 2021, and may be lodged with the government here.

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Originally published at Law and Religion Australia. Photo by Charlein Gracia on Unsplash.