NSWCCL submission to the Joint Select Committee Inquiry into the Anti-Discrimination Amendment Bill 2020 - 22 August 2020
The NSW Council for Civil Liberties [NSWCCL] considers it is very important to respond in some detail to this Joint Select Committee’s inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 [the Bill].
The issues encompassed by this Bill – religious freedoms and protection from discrimination on the grounds of religion - are of great significance in a democracy such as ours. They are also extremely complex and potentially deeply contentious issues. Legislation on human rights must always be carefully considered and balanced, and this is especially so in relation to religious rights and protections. If all rights are not considered in a fair and balanced way the outcome is likely to be discriminatory and harmful to some groups and individuals and to over-privilege the rights of others.
** Dr Lesley Lynch, co-convenor of the NSWCCL Civil and Human Rights Action Group appeared at the first public hearing for the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill at 2pm on Friday 23rd October, 2020.
NSWCCL recommends the Committee or, failing that, the NSW Parliament, rejects the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.
NSWCCL recommends that:
i) the NSW Parliament establishes a broadly consultative process to develop a balanced NSW Anti - Discrimination Bill to make discrimination on the ground of a person’s religious beliefs or activities unlawful;
ii) the Bill be developed within an Australia-wide framework to gain maximum consistency of anti-discrimination provisions across states/territories and Commonwealth legislation and balanced consideration of all rights and impacts on persons and groups of exceptions/ exemptions provisions
iii) this process should consider the findings and recommendations of the highly relevant Australian Law Reform Commission Report on The Framework of Religious Exemptions in Anti-Discrimination Legislation which is to report in December 2020;
iv) strong consideration be given to extending this process to incorporate a review and update of all aspects of NSW anti-discrimination laws
v) Ideally the national framework should include both an Australian and NSW charter of Human Rights.
NSWCCL recommends that the list of instruments at 3(1) be significantly expanded to include additional international instruments relevant to all protected attributes covered by the Anti- Discrimination Act as well as religious rights. Alternatively, we recommend clause 3 be removed from the Bill.
NSWCCL recommends that the definition of ‘religious activities’ in s22K is amended to ‘engaging in lawful religious activity, including a lawful activity motivated by a religious belief.’
NSWCCL recommends that section 22K be withdrawn and that the definitions of religious belief be subject to wider, informed consideration to address the problems with the current formulation.
NSWCCL recommends that sub sections 22N (3)-(5) which would make it unlawful for an employer to restrict, limit, prohibit or otherwise prevent an employee from engaging in a protected activity’ or ‘punish or sanction an employee for engaging in a protected activity’ be deleted from the Bill.
NSWCCL recommends that sub sections 22S (2)-(4) and 22V (3)-(5) which would make it unlawful for a qualifying body or an educational institution to restrict , limit, prohibit or otherwise prevent a person or a student from engaging in a protected activity’ or ‘punish or sanction a person or a student for engaging in a protected activity be deleted from the Bill.
NSWCCL recommends that proposed sections 22K defining a ‘religious ethos organisation’ and section 22M ‘Religious ethos organisations taken not to discriminate in certain circumstances’ be deleted from The Bill.
NSWCCL recommends that the existing General Exceptions provision relating to religious bodies at section 56 in the Anti-Discrimination Act 1977(NSW) be maintained as an appropriate, adequate and balanced provision for exceptions against discrimination on religious grounds for religious bodies.
The NSWCCL recommends that that an explicit commitment to the indivisibility and universality of human rights, and their equal status in international law is embedded in a redrafted Bill and that it is an overriding criterion for achieving appropriate balance between rights in all relevant provisions.
NSWCCL recommends that if recommendation 8 on the deletion of section 22M from the Bill is not implemented, that the exception provisions in section 22M be amended so they do not apply to the provisions in section 22V(2) relating to religious discrimination against students in an educational authority.