Today Mark Latham is releasing a draft Religious Freedom and Equality Bill for community-wide consultation.

Based on the recommendations of the Ruddock Religious Freedom Review, specifically, that “NSW and SA 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 a religious belief’’.

The purpose of the Bill is to extend anti-discrimination protections in NSW beyond existing categories of citizenship (gender, sexuality, race, disability, etc.) to people of religious faith.

The draft Bill unashamedly puts the interests of personal/worker freedom ahead of corporate finance.

Regarding the Folau case, it should be noted that, as a NSW resident, he had two potential triggers for an unfair dismissal claim under the Federal Fair Work Act: if the NSW Parliament had outlawed religious discrimination; and an ILO Convention dealing with religious discrimination. He had to rely on the second trigger as the first was unavailable to him (to be corrected via this Bill).

A key issue in this area of law is the tension between Liberty and Equality. How do we reconcile the freedom to practice religious beliefs with the equality of all citizens in accessing socially available services and facilities?

The international human rights law is clear: religious freedom cannot be extinguished merely because of a clash with equality. Where there is inequality, decision-makers need to limit any incursion upon religious freedom to that which is necessary and proportionate – that is, the minimum degree of interference that might balance Liberty and Equality.

One of the ways courts have limited religious freedom claims is to deny that the claim is religious in nature, substituting their own views for those of the religious believer. The draft Bill guards against judicial activism of this kind.

In its opening statement of Principles, it refers to the Minister, Board, President and NSW Civil and Administrative Tribunal (when dealing with the Liberty v Equality question) to the well-established Siracusa Principles used in interpreting the limitation provisions of the ICCPR. This reflects a key recommendation of the Ruddock Review for assessing “whether a law limiting the operation of freedom of religion or other rights is unduly burdensome”.  An alternative, more explicit approach would be to write the Siracusa Principles into the Act.

A copy of the bill and explanatory notes are embedded below.

Religious Freedom and Equality Bill 2019

Anti-Discrimination-Amendment-Religious-Freedoms-and-Equality-Bill-2019

Explanatory Notes

Explanatory-Notes

Public Feedback

The Bill’s Exhibition Draft is open for public comment (up to COB, Friday 1 November 2019) by writing to Mark Latham MLC at:

NSW Parliament House, Macquarie Street, Sydney NSW 2000

Or emailing: mark.latham@parliament.nsw.gov.au

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