Weddings and Kirpans- indirect religious discrimination in NSW

Associate Professor Neil Foster

While Sikh weddings will often feature the symbolic dagger known as the “kirpan”, that is not the connection I am writing about. In NSW at the moment both weddings in general, and kirpans worn by school students, have featured in debates about religious freedom. For weddings, those committed to religious beliefs are deeply concerned that all weddings are banned under COVID-19 provisions. In relation to the kirpan, I have written previously about a ban on these items applied to school students and the problems that raised for observant Sikh students. Both of these issues provide an example of what is called “indirect discrimination” on the basis of religion. The kirpan ban seems to have recently been sensibly modified to take into account concerns of the Sikh community. I argue here that the wedding ban should be approached in a similar way, and the deep-seated concerns of believers in NSW met by adjusting the current rules to allow the small number of people most directly involved to gather for weddings.

What is “indirect religious discrimination”?

The concept of “indirect discrimination” is an important part of all laws regulating discrimination in our legal system. Direct discrimination, in broad terms, involves detrimental treatment of someone based directly on a “prohibited ground” of discrimination. An obvious example would be an applicant for a job denied because they were female, when a male with identical qualifications would have been offered the job.

The notion of “indirect” discrimination recognises that sometimes detrimental decisions can be made on what appear to be “neutral” grounds, but the application of those grounds will in practice operate to disadvantage more people who have the prohibited characteristic, than those who don’t. An example might be an employer adding a “minimum height” requirement to some position, which would end up excluding more people from a racial group whose average height was lower than the rest of the community. Sometimes this principle is needed because conditions are added to a requirement in bad faith, with an actual intention to discriminate on a prohibited ground. But sometimes the condition, while added with no subjective discriminatory intent, just turns out to be detrimental to a particular group. In these cases, the condition may be valid, but in cases where discrimination is alleged, the person who imposed the condition has an onus to show why the condition is “reasonable”.

Indirect discrimination and the kirpan ban

We can apply this to the ban on all knives being carried at school, which was implemented in the previous policy adopted by the NSW government after an incident involving the mis-use of a kirpan in a school fight. A ban on knives doesn’t itself directly target any religion. But since the carrying of a symbolic knife in the form of a kirpan is an essential requirement for an observant Sikh, such a ban will have a serious impact on Sikh students. It can be seen to be a form of indirect discrimination on the basis of religion.

This issue now seems to have reached a sensible resolution. The ABC website reports:

Education Minister Sarah Mitchell decided to reverse the ban after making creating new guidelines around their use. “The safety of students is my highest priority and our policy will always prohibit weapons at school,” Ms Mitchell said.  “We have worked closely with community representatives, including from the Australian Sikh Association and the NSW Gurdwara Group, as well as Multicultural NSW and other government agencies, to develop these new guidelines.”

The new guidelines mean:

The kirpan being carried must be no bigger than 8.5 centimetres, with no sharp edges or points

It must be worn under clothing

It must be removed during sports

Any safety concerns must be discussed with the student and their parents or carers.

The Gurdwara spokesperson said the group wanted to thank the Department of Education and community “for understanding the religious importance of kirpan and helping the faith to continue to be followed in schools but not compromising the safety for the students”..

“Religious knives known as kirpans to be allowed in NSW schools after ban reversed”, ABC News, 13 August 2021

These are sensible limits which will allow protection of student safety while accommodating the religious faith of Sikh students.

Indirect discrimination and the wedding ban

NSW residents are of course subject to various restrictions on movement and gathering in order to reduce the risks of spreading COVID-19. Churches in particular, especially those in Greater Sydney (which extends to the Blue Mountains and the Central Coast), have been subject to rules which mean they have not been able to meet in person for some time. With the spread of the virus to regional NSW, the whole State has now been subjected to “Sydney rules” in the latest amended Public Health Order, the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021. (The link is to the version in force as of 14 August 2021 at 5 pm, though some additional restrictions are to come into effect from Monday August 16.)

In Greater Sydney, and now throughout the State for the moment, these rules seem to mean that no-one in NSW can get married. There is specific recognition that funerals can take place under limited numbers (see cl 24(1)(g)(ii) as applying to places of public worship, and other exceptions allowing small funeral gatherings at other locations, including Schedule 1, item 7 allowing people to leave home to attend such gatherings.) But there is no equivalent provision for weddings.

Under the federal Marriage Act 1961, a wedding requires the physical presence of 5 persons: the celebrant, the two parties being married, and two witnesses. Section 45 refers to marriages being solemnised “by or in the presence of” an authorised celebrant. (The alternatives here in light of the history of the provision do not mean that the celebrant may be somewhere else other than in the presence of the parties, simply that the celebrant may in some unusual circumstances be present while some other person administers the vows.) Section 44 requires that two persons over the age of 18 be “present as witnesses”. It has always been the law that the two parties to the marriage must themselves be present with the celebrant.

Under the current “lockdown” rules, then, can 5 persons gather for a wedding? It seems not. Places of public worship are closed to the public under cl 24(1)(g) with no exception for weddings. Gatherings in other places, some of which are allowed to host funeral services, similarly also have no allowance for weddings. Outdoor gatherings are restricted to 2 persons under cl 23. Visitors are not allowed to attend private residences under cl 22A. There is an exception to this under cl 22A(5)(c) “where 2 persons are in a relationship but do not necessarily live together”, so that an engaged couple can be in the same private residence together. But this does not allow for a celebrant or witnesses. (And where a committed religious couple want to live in accordance with the teachings of their faith, this will mean that it is not an answer to say that they can just “move in together” or sleep together. Such couples who want to live in accordance with their faith do not want to sleep together before marriage.)

Even if a place for the ceremony could be found, it seems that the “reasonable excuses” for the couple or the witnesses to leave home would not apply. Schedule 1 contains a list of such excuses; item 14 may allow a minister of religion to leave home for the purpose of “providing pastoral care to another person” (which could be read to include conducting a wedding), but none of the other reasons seem to authorise the couple or their witnesses to leave home.

In short, faithful religious persons who want to marry cannot do so in NSW at the moment. (See for a report about this: “‘You can still go shopping at Bunnings’ but not get married” (SMH, 2 August 2021).) And in my view this is a classic example of indirect religious discrimination. The rule itself (no-one can get married in NSW) does not on its face mention religion; but the impact of the rule is much more serious on faithful religious persons than it is on many others in the community. To be blunt, most young people who want to start a life together, including sexual relations, would be able to do so without any concern about whether or not they could get married. But for religious people this is a major barrier.

(Some well-meaning Christians have suggested that the solution is for believers to conduct a “commitment ceremony” of some sort over the internet, which is not intended to be a legal marriage, after which they would be “married in the eyes of God”. I disagree, though for the purposes of this post I don’t want to go into the somewhat detailed sidetrack which would be needed for me to make my case. Those who are interested can see my views on this matter set out in a paper dealing with other topics linked here, from page 11, and my view can be summarised as: “a man and a woman living under the Australian legal system are not married within the meaning of that term in the Bible until they are married for the purposes of Australian law.” But for current purposes, even if the “in God’s eyes” view were correct, let’s assume that there are some believers, like me, who don’t hold that view, and would not be happy living together unless married under Australian law. They are the ones who will be indirectly discriminated against by this view.)

My view that indirect discrimination arises in this sort of situation can be supported from a slightly unusual source, a decision on superannuation in Victoria. The case involved the possible application of s 14 of the Victorian Charter of Human Rights and Responsibilities Act 2006. In Valentine v Emergency Services Superannuation Board (General) [2010] VCAT 2130 (29 July 2010), the widow of a former ambulance driver had her pension terminated on re-marriage, some time before 2008 when the Charter commenced. She was later told that the pension would be reinstated if she divorced her current husband or he died! She complained that, in effect, she was being penalised on the basis of her religion, because her religious beliefs meant that she could not in all conscience seek a divorce.

The Tribunal ruled against her because all the relevant events had happened before the Charter commenced. But there were interesting comments made at the end of the judgment:

[102] An argument … may be made, namely the provision of a penalty for Mrs Valentine for living in lawful matrimony with Mr Valentine rather than ‘in sin’ is in violation of her religious beliefs based on the right protected by Section 14 of the Charter. The oral argument in this proceeding did not take me to authorities on the scope which this protected right has been accorded in international human rights jurisprudence. In light of the conclusions which I have reached as to the non-operation of Section 32 of the Charter for the purposes of this dispute it is inappropriate therefore for me to say too much, beyond noting that there does seem to be some plausibility to the contention that a legal interpretation which would impose a significant financial penalty upon a citizen who adhered to her religious beliefs relative to matrimony could be regarded as a coercion or a restraint in her freedom to have or adopt a religion or belief in practice.

Macnamara, Deputy President

The comments here correctly point out that it seems a violation of a person’s religious beliefs to require them to suffer a penalty rather than “live in sin”. The penalty in the cases we are considering is not, of course, financial, but it is nonetheless a serious imposition.

The solution seems reasonably straightforward. A believer who longs to be married does not need a large wedding reception or celebration. The service can be restricted to 5 persons, meeting in some place which allows social distancing. It could be limited to an hour. These would be simple but profoundly important changes to the public health order which would show a determination not to indirectly discriminate against faithful religious believers.

Finally, it needs to be noted that while in some parts of Australia it might be possible to use the law to make a case of indirect religious discrimination in this situation, here in NSW it would not be possible, as there is no law in the State preventing religious discrimination. This is a serious gap in our statute book, and all the more reason for the Federal government to take seriously the need for religious discrimination protection at the Commonwealth level. Until then, while the kirpan case shows that appropriate outcomes can be achieved by the good will of ministers and officials, believers may find themselves in danger of discrimination on the basis of their faith where such good will is not present.