Religious belief remains a basis for discrimination for now
Faith and civic leaders and law experts are disappointed that the New South Wales Government will not outlaw religious discrimination until at least next year, after decades of waiting for the much-needed reform.
The state’s Attorney General Mark Speakman last week announced that the government will introduce a bill to make the amendment to the Anti-Discrimination Act 1977 (NSW), but not until the Commonwealth Government passes its own law to protect against discrimination based on religious belief or activity.
Currently every jurisdiction in Australia except for NSW and South Australia already includes religion under existing protected grounds of disability, sex, race, age, or marital or domestic status.
“NSW is lagging behind, and people of faith in this state have waited long enough for equal treatment under anti-discrimination laws.” – Archbishop Anthony Fisher OP
Last September a parliamentary survey confirmed overwhelming public support for extending anti-discrimination laws in New South Wales to protect religious believers and organisations, with strong support for a private member’s bill introduced by Mark Latham MLC in May 2020.
Archbishop Anthony Fisher OP, who had addressed a joint select committee inquiry on that Bill last November, said he was disappointed that the Government has not followed the Committee’s recommendation to act by the end of this year.
“[It has] instead chosen to delay even working on a bill until after the passage of a Federal Religious Discrimination Act, [which] is particularly disappointing,” the archbishop said.
“It has been three years since the Ruddock Review recommended that the NSW Anti-Discrimination Act be amended to provide protection for religious believers, and indeed more than 20 years since the same recommendation was made by the New South Wales Law Reform Commission.
“They did not need to wait for the federal parliament to act. NSW is lagging behind, and people of faith in this state have waited long enough for equal treatment under anti-discrimination laws.
“Close to 20,000 people participated in the inquiry relating to this Bill in good faith, with close to 75 per cent of those offering support for it to be passed. They are entitled to expect that their support for the Bill will be heeded, particularly given it was backed by the Committee.”
No freedom without religious freedom
Wendy Francis, National Policy Director of the Australian Christian Lobby, said that with the increasing number of Australians coming under attack at work for their faith, “it is concerning that the NSW government has declined to act to provide protection for its citizens against discrimination based on religion, preferring instead to wait to see the Federal Government’s Religious Discrimination Bill”.
“This is despite a majority of the parliamentary committee supporting amendments proposed by NSW One Nation leader, Mark Latham, which would prohibit employers from controlling their employees’ religious speech outside the workplace, provided such speech is non-vilifying.
“This is yet another reason why it is imperative that the Religious Discrimination Bill being formulated by [Federal] Attorney General Michaelia Cash includes meaningful protections for people of faith. There is no freedom without religious freedom.”
John Steenhof, Principal Lawyer of the Human Rights Law Alliance, welcomed the announcement but said that the “long overdue” change “should not be linked with an uncertain Federal promise of similar legislation”.
“There is a clear and overwhelming need for action to protect religious freedom in NSW now,” he said. “The public square is an increasingly hostile place for people of faith and they should be protected without delay.”
Professor Michael Quinlan, National Head of School, Law and Business at the University of Notre Dame Australia, agreed that a delay was “disappointing”.
“Other states have not adopted this approach,” he said. “I do not expect that the status of NSW as the State with the most people who self identify as religious will change in this year’s census and it is anomalous that our fundamental human right to live as a religious believer without discrimination has not long been protected in our State. “Whatever happens at a Federal level should not delay progress on this protection in our State.”
Professor Quinlan said however he was pleased at the government’s commitment and that if the state followed the proposal put forward by Mark Latham “it will be a very useful addition to our law”.
Associate Dean of Notre Dame’s School of Law, Sydney, Professor Keith Thompson said he thought the committee’s recommendations prompted by Mark Latham’s bill and community input “bore the imprint of genuine objectivity and showed a bipartisan effort to legislate protections for all religious believers in NSW” and had hoped it would inform a law that would be a good template for national religious freedom.
Not-for-profit organisations should be included
Gabrielle Upton MP, Chair of the joint select committee, also strongly welcomed the government’s commitment.
“It will finally close an obvious gap in NSW discrimination law,” she said. “I strongly urge the Government to make sure that any bill also provides protection for not-for-profit organisations from discrimination on the grounds of religious beliefs or lawful activities because of their religious doctrines and teachings.
“Religion is central to the identity and practices of these not-for-profit organisations and they can provide important opportunities for people to practice their religion.”
Mark Latham MLC said he hoped the government was not simply attempting to delay the needed reform and looked forward to a more detailed response to the report by the joint select committee into his own Bill.
That report is due by the end of September.
“NSW can clearly act in its own right, as every state already has other than us and South Australia,” Mr Latham said. “We’ve been waiting for a long while already.”