People with a particular religious affiliation

NSW is a multicultural society, and this is also apparent through the wide variety of different religions recorded on the Census. The purpose of this chapter is to:

  • provide a brief overview of the beliefs and court-relevant practices of the five most common religions in NSW — in the order in which they are most commonly practised, and

  • provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.

4.1 Some statistics1

Table 4.1 shows the numeric breakdown of religious affiliations of the NSW population (7.48 million) and the percentage of the 2016 NSW population represented by each group.

Table 4.1 — Religious affiliation of NSW population
Religious affiliation Number of NSW residents % of NSW population
Christian 4,127,783 55.2%
Muslim (practising Islam) 267,659 3.6%
Buddhist 207,956 2.8%
Hindu 181,402 2.4%
Jewish (practising Judaism) 36,901 0.5%
Other religions 38,799 0.5%
No religious affiliation 1,879,562 25.1%
Not declared/Inadequately described 684,969 9.2%
Total NSW population 7,480,228  

  • Of the 64.5% (4.46 million) who are Christian, in descending order of affiliation:

    • 1.82 million (24.1% of the population) are Catholic — 98.1% of whom are Western Catholic, with the rest practising such denominations as Maronite Catholic, Melkite Catholic and Ukrainian Catholic.

    • 1.16 million (15.5% of the population) are Anglican.

    • 217,258 (2.9% of the population) are Uniting Church.

    • 188,330 (2.4% of the population) are Presbyterian.

    • 128,544 (1.7% of the population) are Greek Orthodox.

    • 94,647 (1.3% of the population) are Baptist.

    • 77,402 (1.0% of the population) are Pentecostal.

    • 20,450 (0.3% of the population) are Lutheran.

    • 33,015 (0.4% of the population) are Maronite Catholic.

    • 22,723 (0.2% of the population) are Jehovah’s Witnesses.

    • 15,219 (0.2% of the population) are Salvation Army.

    • 22,659 (0.3% of the population) are Seventh Day Adventist.

    • And the remainder practise such religions as Latter-day Saints (Mormons) and Churches of Christ.

  • Of the 0.6% (45,823) who practice a wide range of other religions, the most popular is Sikhism.

  • The religious affiliations of people born overseas or with recent overseas ancestry, whether from English-speaking countries or non-English speaking countries, are various and do not necessarily match the dominant religion within the particular overseas country. For example, Australians of Southeast Asian ancestry may be Buddhists, Christians, Hindus or Muslims. People of different ethnic backgrounds may have similar religious affiliations, for example, a practicing Muslim may be of African, Asian, European, Middle Eastern or Indigenous origin.2

  • There is also generally a wide diversity within religious groups dependent on such things as cultural factors and/or doctrinal differences. It is important not to make assumptions or stereotype.3 For example:

    • Many religions include people for whom their religion is the critical defining factor in their values and the way they behave plus people for whom their religion is of a less significant defining influence or importance.

    • Many religions also include a range of doctrinal differences, from the orthodox or fundamentalist (strict adherence to very specific religious rules) to a more relaxed attitude.

4.2 Some information4

This Section provides a brief overview of the beliefs and court-relevant practices of the five most common religions in NSW — in the order in which they are most commonly practised.

As indicated in 4.1 above, some people who practise one of these five religions will not accept everything described below as conforming to their own beliefs. However, the information has been confirmed by representatives of the particular religion as representing a mainstream understanding of that religion.

4.2.1 Christianity

As indicated at 4.1 above, there is a wide variety of Christian denominations or traditions practised in NSW. People who practise Christianity come from a wide variety of ethnic origins.

The annual dating system used in Australia has its origins in Christianity — BC (before Christ) and AD (Anno Domini, literally “in the year of the Lord”, meaning in the years since the birth of Christ). Almost all public holidays in Australia derive from the Christian calendar of festivals, as does the, until recent, notion of not working on Sundays.

Many Christian denominations contain strands ranging from liberal to conservative.

4.2.1.1 Main beliefs

Christians believe Jesus Christ is the son of God, and God and mankind were reconciled through the death and resurrection of Jesus Christ.5

Many Christians believe in the ethical principles listed in the Ten Commandments, given to Moses by God on Mount Sinai:

1. 

To have no other God besides God

2. 

To make no idols

3. 

Not to misuse the name of God

4. 

To keep the Sabbath holy

5. 

To honour one’s parents

6. 

Not to commit murder

7. 

Not to commit adultery

8. 

Not to commit theft

9. 

Not to give false evidence

10. 

Not to be covetous

There are no particular dietary requirements in most Christian denominations. However, Seventh Day Adventists are expected to be vegetarian and not drink alcohol. Fasting may occur during Lent — the 40 days leading up to Easter/the Resurrection of Jesus Christ. Some Christians may fast at times other than Lent.

4.2.1.2 Holy books and scriptures

The most important holy book is the Bible. It is made up of the “Old Testament” and the “New Testament” both of which are collections of sacred writings. The various Christian denominations ascribe differing levels of importance to each Testament. The Old Testament is essentially shared with Judaism. The New Testament contains the gospels (or good news) about Jesus Christ.

4.2.1.3 Religious leaders

Christian religious leaders have various names depending on the type of Christianity being followed — for example, priest for Catholics and Orthodox Eastern European Christian denominations, minister for most of the other Christian denominations. They are responsible for conducting religious services and providing religious instruction and guidance.

There are strong leadership hierarchies in most Christian denominations with essentially many levels of ordained priests or ministers, with various titles, headed, for example, by the Pope in Catholicism and the relevant country’s Primate in Anglicanism. In some Christian denominations (for example, the Uniting Church) both ordained and non-ordained people can hold any role in the church leadership.

In some Christian denominations there are groups of religious sisters (or nuns) and religious brothers (or monks) who live relatively cloistered lives. Others live and work in the community, usually doing various forms of charitable type work.

4.2.1.4 Forms of worship and festivals

Christians tend to pray congregationally in a church of their particular Christian denomination — on Sundays and on religious festivals. Church services vary between denominations from highly ritualised with the relevant leaders dressed in religious garments to much less ritualised, with religious leaders wearing a clerical collar or a cross pinned onto a shirt as the only sign of their religious leadership, or wearing no particular distinguishing dress.

There are some Christian festivals that are celebrated by all Christian denominations, although they may be celebrated at slightly different times (for example, the Eastern European orthodox calendar runs approximately 14 days later than the standard Australian calendar).

There are many other festivals that have more or less significance depending on the particular Christian denomination. For example, some have many different saints’ days and some pay more attention to religious events, such as the Assumption of the Virgin Mary.

4.2.1.5 Relevant practices

The following are the practices of most impact in court situations:

  • Status of women — Women generally have an equal status in Christian denominations. However, only some Christian denominations allow female religious leaders. For example, Catholicism does not allow women to be priests.

  • Touching — there are no particular taboos on touching. Although note that there are some Christian denominations that forbid some forms of medical treatments — for example, Jehovah’s Witnesses will refuse blood transfusions and all other forms of treatment involving the use of donations from others.

  • Dress — Priests and other ministers tend to wear some form of distinguishing religious dress, ranging from a full gown, to a clerical collar, or even a cross on a shirt collar. Some wear no distinguishing religious dress at all. Religious sisters (or nuns) and religious brothers (or monks) tend to wear less distinguishing religious dress than they used to, although those in enclosed orders are more likely to wear gowns or habits. Many Christians wear a cross around their neck.

  • Worship and festival times — see 4.2.1.4 above.

4.2.2 Buddhism

The Buddhist community in NSW can be divided into two groups:

1. 

“Ethnic” Buddhists — people born in a Buddhist family; and

2. 

“Western” Buddhists — people who have chosen to become Buddhists.6

Most Buddhists in NSW are “ethnic” Buddhists. There are two main Buddhist traditions: and

1. 

“Theravada” — which has its roots in Sri Lanka and Southeast Asia;

2. 

“Mahayana” — which is prevalent in China, Japan, Tibet, Nepal, Mongolia, Korea, Taiwan, Vietnam, Bhutan and India.7

Both traditions agree about the key beliefs and practices outlined below.

4.2.2.1 Main beliefs

Buddhism is founded on the teachings of Siddhartha Gautama, “the Buddha” or “the Enlightened One”, who was born in 563BC near the present India-Nepal border. The Buddha realised all phenomena in life are impermanent and that the principal cause of suffering is the illusion of the substantial and enduring self. People will become wise, compassionate and kind, and greed, hatred and delusion will disappear, once they are freed from the illusion of self.8

The Buddha’s enlightenment resulted in the four Noble Truths:

1. 

That there is suffering.

2. 

That suffering has a cause.

3. 

That suffering has an end.

4. 

That there is a path that leads to the end of suffering.9

The Eightfold Noble Path enables Buddhists to follow tenets of morality, concentration in mind and wisdom:10

  • Morality is based upon the Five Precepts — not to destroy life, not to steal, not to commit improper sexual behaviour, not to lie or slander, and to refrain from alcohol and drugs which will distort the mind.

  • Concentration requires effort and mindfulness in all activities.

  • Wisdom requires understanding and thoughtfulness in relation to the Buddha’s teachings.

Buddhists do not believe in taking life; however they are not required to be vegetarians, which is at the individual’s discretion.11

4.2.2.2 Holy books and scriptures

There are numerous holy scriptures associated with the various forms of Buddhism. They are collectively known as the “Tripitaka” or Three Baskets, consisting of “Vinaya Pitaka” or monastic rules, the “Sutra Pitaka” or sermons and the “Abhidharma Pitaka” or higher philosophy.

The teachings of the Buddha are collectively known as the “Dharma” in Sanskrit, (or the “Dhamma” in Pali), often translated as “the path”.12 Buddhism is not based on reverence for holy books, but rather than study, the emphasis is on the practice of teachings.

4.2.2.3 Religious leaders

Monks, nuns and some lay people are regarded as spiritual leaders. Buddhist monks and nuns should always be addressed as “Venerable” or “Reverend”, never as “Mr” or “Miss”. This does not apply to persons guilty of murder or sexual offences as they are no longer considered to be monks or nuns and are prohibited from re-ordaining.

4.2.2.4 Forms of worship and festivals

Buddhists commonly practise meditation in the early mornings and evenings with a combination of chanting, prostration or silence.

Meditation does not need to be done in a Buddhist Temple, however many temples do offer services weekly and at festivals.13

The main Buddhist festival is called “Vesak” — the date of the Buddha’s birth, liberation or enlightenment and his passing away. The actual date varies within Asian cultures but usually coincides with the Full Moon of May.

Individuals may go into reclusive retreat, at which point they must have no contact with anyone.

4.2.2.5 Relevant practices

The following are the practices of most impact in court situations:

  • Status of women — Women have an equal status in Buddhism.

  • Bowing — Bowing with hands clasped in a prayer-like gesture (or sometimes with both hands folded over their heart) shows honour and respect, and is the proper way of greeting monks and people in authority.14

  • No direct eye contact — Monks from Cambodia, Sri Lanka, Thailand, Laos and Burma must not usually look directly at a member of the opposite sex.15 They often shield their face with a fan to avoid this. This practice applies to Vietnamese nuns as well. There is no such rule for lay Buddhists — see Section 3 for cultural rules about this.

  • Touching — Never touch a monk or nun on the head.16 Theravadin monks should never be touched by a female. They cannot give or receive any item directly from or to the hand of a female. The item should be placed in front of them for them to pick up. This rule does not generally apply to monks and nuns of the Mahayana tradition. Some cultures have sensitivities to touching people of the opposite sex.

  • Dress — Monks and nuns must wear robes at all time. However, novices may be allowed to wear casual clothes at times. Robes vary in colour and may be maroon, saffron, grey, brown, yellow or black. The different colours reflect the country in which individuals took their monastic vows.17 Monks and nuns either shave their heads or have very short hair. Lay Buddhists may wear medallions, prayer beads and/or coloured strings around their wrists or necks.18

  • Worship and festival times — see 4.2.2.4 above.

4.2.3 Islam

The definition of “Islam” in Arabic means “submission” and refers to the submission to “Allah”, the Arabic word for “God”.19

It is incorrect to use the term “Muhammadanism” which suggests the worship of Muhammad20 which is considered forbidden. Islam places great emphasis on pure monotheism, and the idea of the “indivisibility” of God.

There are nearly 1.6 billion Muslims from many races, nationalities and cultures throughout the world. There are:21

  • 1.3 billion Asian Muslims

  • 520 million African Muslims

  • 56 million European Muslims

  • 7.61 million North American Muslims

  • 2.45 million South American Muslims

  • 79.5 million Turkish Muslims

  • 0.54 million Oceania Muslims.

Muslims in Australia come from over 70 different countries and are therefore ethnically and culturally diverse.22 The largest Muslim ethnic groups in Australia are Lebanese and Turkish. Most Muslims in Australia were born in Australia and the vast majority are Australian citizens.

There are two main groups within Islam:

1. 

Sunni; and

2. 

Shi’a.

In most Muslim populations, the Sunni are the majority.23 The exceptions are in Iran and Iraq, where the Shi’a form the majority.

Historically the two groups differed over the successor to Muhammad and leadership of the Muslim community (the “Imam”): the Shi’ites believe the leader should be descended from Muhammad; whereas the Sunnis elect their leader from those who are pious and able to do the job effectively.24 Today, however, the main difference between these groups stem from the different cultures and traditions the two groups have developed over the centuries.

There is another approach to Islam, known as Sufism. It is an approach typified by a range of different mystical attitudes, values and practices, not a particular school or sect, so it can be found among many different “branches” of Islam. There have also been identifiable Sufi groups at different times and in different places.

4.2.3.1 Main beliefs

Muslims believe in one unitary and omnipotent God — “Allah” (which literally means “God” in Arabic). The ultimate purpose of humanity is submission to Allah in every aspect of life including faith, family, peace, love and work.25 Islam is strongly monotheistic and abhors both the attribution of divinity to any human and the notion that Allah might be divisible.

Islam teaches that prophets are sent by Allah to correct moral and spiritual behaviour. The prophets are human, but they provide an example for individuals and nations to follow.26

Muslims believe that there have been many prophets (including Abraham, Moses and Jesus, among others) but that the final prophet was Muhammad, and that the Qur’an is the final revelation of God.

A belief in six Articles of Faith27 is a requirement of every Muslim — that is, a belief in:

1. 

One, unique, incomparable God (Allah).

2. 

All the angels.

3. 

All the Prophets and messengers of Allah, including Adam, Noah, Abraham, Moses, David and Jesus.

4. 

All revealed books/scriptures of Allah.

5. 

The Day of Resurrection and the Day of Judgment.

6. 

Fate and Predestination.

The Five Pillars28 (or duties) of Islam are regarded as central to the life of the Islamic community:

1. 

The profession of faith (Al-Shadah) — “There is no God but Allah and Muhammad is his Prophet.”

2. 

The five daily prayers.

3. 

To pay alms to the poor (“zakat”). There are complex rules about how much, when and how alms should be given.

4. 

Fasting in the month of Ramadan.

5. 

The pilgrimage to Mecca (“hajj”), for all able-bodied Muslims, at least once, where reasonably possible.

The teachings of Islam are anti-violence. Muslims must not initiate violence or commit violence. However, if a Muslim individual, the Islamic religion or Islamic community is threatened, Muslims have a right to “jihad” (to struggle or strive) in self defence. Jihad can encompass spiritual, intellectual, theological, literary and, if necessary, physical forms. The personal or inner struggle is the most significant, as it reflects the quest for perfection of self.

Muslims are forbidden to eat certain animals and their products such as carrion and in particular, any pork product, except in life threatening situations. Animals that can be eaten are sheep, cattle, poultry, camel, goat and seafood but only when they have been slaughtered in a humane way in the name of God. Muslims must avoid toxins and harmful products including drugs and alcohol. Food that fits the approved criteria and/or has been prepared in the approved way is called “Halal” food.

See under 4.2.3.4 for rules about fasting.

4.2.3.2 Holy books and scriptures

The Holy Qur’an is considered the final, unaltered and unalterable word of Allah,29 as conveyed to Muhammad by the angel Gabriel and transmitted to his followers by Muhammad. Questioning it is viewed as a very grave error.

The Qur’an is seen as a universal guidebook. It includes some material that can be described as “codes of conduct on morality, nutrition, modes of dress, marriage and relationships, business and finance, crime and punishment, laws and government”.30

Much of it, however, relates to theology and metaphysics.

The “Sunna” comprises the “hadith”, which are thousands of recorded teachings and practices of the Prophet Muhammad, and are the second most important source of authority in Islam.31 There is a dispute as to which hadith are reliable and which are not.

The Qur’an and Sunna together provide the primary sources for the “Shari’ah” (meaning “the way”). This is a body of Islamic law comprising 1,400 years of highly sophisticated legal scholarship.

See further B Rauf, “After R v Bayda; R v Namoa (No 8)” (2019) 31(9) JOB 81 for a discussion around the different textual interpretations of the Qur’an. “There are verses in the Qur’an which are open to interpretations of violence, just as there are verses in the Christian Bible, but they do not incite violence. Rather, it is violent people who incite violence; they use and misinterpret religious texts for their own purposes.”32

4.2.3.3 Religious leaders

There is no priesthood or institutionalised universal “church” for most Muslims. For example, there are no “ordained” priests or leaders comparable to Bishops or the Pope in terms of authority within Sunni Islam. Religious leadership is usually consensual and authority is often informal and typically limited to a given group or community. “Alim” (singular) or “Ulama” (plural) are religious scholars who fulfil a similar role to priests in many other religions, but they are appointed by their own community, large or small. “Ustaz” or “Ustadz” means a “teacher”, usually an alim. “Imam” means leader and generally refers to a qualified religious leader (usually an alim) who leads the five daily prayers in the mosque. An Imam typically has extensive knowledge of the Islamic faith and is generally a respected person in the Muslim community.

4.2.3.4 Forms of worship and festivals

Muslims pray five times a day — in the morning before sunrise, midday, afternoon, after sunset and at night. These are obligatory prayers for all adults starting from the age of puberty, which determines adulthood, with exceptions for those who are ill or women who are menstruating. It is necessary to wash thoroughly before prayer (performs ablutions), and prayers must be conducted in a clean area. During prayer, Muslims stand, bow and prostrate on the ground with their face towards the Ka’ba — a building located in the Grand Mosque in Mecca. Prayers are congregational and generally performed in a mosque — but can be performed individually, if necessary, at any clean and respectable place. A formal call to prayer is usually made from a minaret (tower) of a mosque, where congregational prayers are conducted, however the call to prayer can be made individually in any setting.

Muslim men pray at the mosque on Friday at midday, where a special congregational prayer and a sermon are delivered by the Imam. Women may choose, but are not obliged, to attend.33

There are two main festivals in Islam. They can occur at any time during the calendar year:

  • Eid-ul-Fitr (breaking of the fast) — which signifies the end of the month of fasting called “Ramadan”. Ramadan is the ninth month on the lunar calendar.34 It is the month during which the Qu’ran was revealed to the Prophet Muhammad. Muslims must fast, abstain from drinking alcohol, smoking, sexual relations, gossip, slander and activity which may harm another person, for 29 to 30 days.35 The aim is to advance oneself spiritually, to consider the needs and difficult struggles of others and to develop oneself so as to become the best example for the rest of humanity.

  • Eid-ul-Adha (the feast of sacrifice) — which commemorates the sacrificing of a sheep by the prophet Ibrahim (Abraham). A Muslim sacrifices a sheep and shares it with the poor, neighbours and friends on that day.36 The great pilgrimage to Mecca in Saudi Arabia is also observed at this time when Muslims from all over the world congregate to perform the obligations of the pilgrimage.

4.2.3.5 Relevant practices

The Australian National Imams Council (ANIC) has issued an “Explanatory Note on the Judicial Process and Participation of Muslims”37 to give practical guidance on the etiquette and behaviours that Australian Muslims should observe when engaging in court processes. The note provides information for judicial officers on Islamic practices as they relate to matters which may be raised in connection with Muslims participating in court processes. The note has been described as “a powerful statement by the leadership of Islam in Australia concerning the approach to judicial proceedings”.38 In R v Alou the offender’s lack of respect for the court touched on the issue of contrition and remorse and his prospects of rehabilitation.39

The following are the practices of most impact in court situations:

  • Status of women — Men and women have equal, but not identical, rights and responsibilities. The head of the household is the father or, in his absence, the eldest son; and in most Muslim societies only men can be religious leaders.40 In many Muslim communities women are regarded in a way that is often seen as discriminatory by non-Muslims.

  • Touching — The left hand is seen as unclean and should not generally be used to touch a holy book, or to greet a person. Many Muslims also prefer not to shake the hand of or touch someone of the opposite sex, although this is not the case for all Muslim cultures. Fathers, brothers, uncles, grandfathers and father-in-laws may, however, touch a woman to whom they are closely related, that is, basically a woman to whom it would be considered unlawful for them to marry by reasons of kinship. Husbands are also exempted, of course.

  • Dress — Islam prescribes a modest dress code for both men and women. This code stems from a prohibition on exposing parts of the body known as the “aurat”. The meaning of “aurat” is not universally agreed among Muslims and so there is no clear agreement on specifics of what constitutes “modest” dress. Generally, loose-fitting, non-transparent clothing and the covering of hair are requirements for women. There is diversity of opinion regarding the hijab (scarf or veil). Some Muslims believe women must cover their faces and heads, while others believe only the hair and head needs to be covered. There are also Muslims who believe it is not an Islamic requirement for women to wear veils. There are various types of headwear for women. The hijab is a general term for a modest dress code and also specifies a scarf that cover the hair (the face is exposed). A chador is a full body cloak. A khimar covers the hair, neck and shoulders, but the face is visible. A niqab is a veil that covers the face showing only the eyes. The NSW Court of Appeal held in Elzahed v NSW [2018] NSWCA 103 at [32] there was no unfairness in the trial judge dismissing an application a witness (a Muslim woman) made to give evidence wearing a niqab. The trial judge ruled that her judicial ability to assess the witnesses’ reliability and credibility would be impeded if the witnesses’ face was covered by a niqab. The Court of Appeal found the trial judge did not make an error in making this decision and dismissed the appeal (at [33]). Views on wearing or not wearing the hijab may be determined by cultural and ethnic background as much as by religious conviction or theory. In Australia, many Muslim women wear the hijab. Few wear the burqa (full face and body veil with a mesh grill for the eyes). Women who wear the hijab tend to do so in order not to display or expose their physical attractions to strangers and/or so as to maintain a moral dignity. Women who wear a covering are not allowed to remove the part of the covering that covers their hair and body in public.41

  • Face covering — Section 13A of the Court Security Act 2005 provides that court security staff may require a person to remove face coverings for the purposes of identification unless the person has “special justification” (s 13A(4)) which includes a legitimate medical reason. Face coverings are defined as an item of clothing, helmet, mask or any other thing that prevents a person’s face from being seen. The court security officer must ensure the person’s privacy when viewing the person’s face if the person has asked for privacy. NSW police are also empowered to require removal of face coverings for identification purposes. Note the Court of Appeal’s decision in Elzahed v NSW [2018] NSWCA 103 that a trial judge did not make an error in ruling that a witness could not give evidence with her face covered by a niqab as this would impede the judge’s ability to assess the witnesses’ reliability and credibility. 42

  • Standing in court and bowing to the judicial officer — No prohibitions or restraints on a Muslim prevent them from standing up or lowering their head as a mark of respect to a judicial officer. The ANIC has issued an “Explanatory Note on the Judicial Process and Participation of Muslims” to give practical guidance on the etiquette and behaviours that Australian Muslims should observe when engaging in court processes.

    See Elzahed v Kaban,43 for a discussion on disrespectful behaviour in court (failing to stand for a judge when entering and leaving the court when presiding over the plaintiff’s civil proceedings at [65]–[90]) and the elements of the offence under s 200A District Court Act 1973 at [38], [41]–[48].

  • Worship and festival times — see 4.2.3.4 above.

4.2.4 Hinduism

Hinduism is one of the oldest religions in the world. Different communities in India have practised and evolved it over thousands of years.

Hinduism is almost exclusively practised by people of Indian origin. Although note that there are many other religions practised in India as well — for example, Sikhism, Buddhism, Islam and Christianity.

Hindus believe that their religion is a continuous process — without beginning or end — preceding the existence of this earth and other worlds beyond.44 Hinduism is sometimes called “Sanatan Dharma” — the Eternal Religion.

Hinduism is unique as a religion, as it has no single founder and no single book. It is based on the divine revelations contained in the ancient holy books called the Vedas. Hinduism has a number of denominations and therefore, there are variations in religious practices amongst its followers. For example, the Hindus of North India may have some practices that are not followed by those from Sri Lanka, and vice versa.

The major tenets of Hinduism are:45

  • “karma” the law of cause and effect

  • reincarnation

  • non-violence

  • tolerance of differences within itself and towards other religions

  • many manifestations of reality or God

  • an omnipresent God who resides in the heart of every living being, thus all human beings are potentially divine and the aim of life is to realise this divinity within.

Hindus believe that there may be many manifestations of the one universal reality or God.46

4.2.4.1 Main beliefs

The Hindu ethical code is exemplified by a saying: “‘Punya’ (virtue or good) is doing good to others; and ‘Papa’ (sin or evil) is harming others.”

Hindu scriptures give universal moral and ethical principles applicable to all sections of society. Designated as Samanya Dharma or common virtues, the list comprises Ahimsa (non violence), Satya (speaking the truth), Asteya (non stealing), Daya (compassion), Dana (giving gifts), Titiksha (forbearance), Vinaya (humility), Indriyanigraha (restraining the senses), Santi (keeping the mind at peace), Saucha (purity of body), Tapas (austerity) and Bhakti (devotion to God).47 In addition, Kshama (forgiveness), Dhriti (steadfastness), Aarjava (honesty), Mitahara (moderation in diet).

The word “Om” is used in Hindu worship and is composed of three Sanskrit letters, “a”, “u” and “m”, which represent the Trinity of energies: “Brahma” the creator; “Vishnu” the preserver; and “Shiva” the destroyer. “Om” is recited before any chant, and Hindus believe it invigorates the body. The symbol for “Om” represents the universe.48

Hindus do not believe in taking life, and traditionally most are vegetarian. Australian Hindus have relaxed the rules relating to food and many are only vegetarians during Hindu festivals. Eating beef is strictly forbidden, and this rule extends to any cooking utensils which may have been used in cooking beef.49

Hindus often fast on the eleventh day of the Hindu calendar month and may also fast for a number days during the year.

4.2.4.2 Holy books and scriptures

There are numerous Hindu holy books. The “Vedas” are the oldest and are written in Sanskrit. The Vedas are a treasure house of information on spiritual, material and social doctrine. The four Vedas are Rigveda, Yajurveda, Samveda and Atharvaveda. The Upanishads are the explanations of Vedas in a simple and practical form.

The “Laws of Manu” contain 2685 verses of instruction.50

Other holy texts are:51

  • The “Ramayana” an epic that contains the life and deeds of Sri Rama.

  • The “Mahabharata” an epic that contains the lives of the Princes Pandavas and Kauravas and Lord Krishna. The “Bhagavadgita” a most popular scripture from the “Mahabharata” narrates a dialogue between Lord Sri Krishna and the warrior, Arjuna, on a battlefield. The central message of Bhagavadgita is that the soul is immortal and that one should discharge one’s duty with total selfless dedication.

4.2.4.3 Religious leaders

There are two aspects of the Hindu religious leadership:

1. 

Ritualistic — mainly male Hindu priests conduct prayers in the temples and various religious ceremonies and rites. Some temples have female priests.

2. 

Spiritual — there are both male and female holy persons of great wisdom, acquired through their devotion, dedication and austere living. The male spiritual person is called a “Swami” or a “Guru”. The female spiritual person is called a “Mataji” or “Sanyasini” or “Pravarajika”. They are revered because they provide religious discourses and guidance.

Hindu religious facilities are managed by leaders of the local community.

4.2.4.4 Forms of worship and festivals

Hindus are encouraged to pray at dawn and dusk, but the actual time is not critical.52

Most Hindus worship at least once a day at sunrise. Worship times at Hindu Temples are generally in the morning and evening.

Hindus must wash thoroughly and change their clothes before praying.53

Hindus also have shrines or designated rooms for worship at home, with pictures or small icons where an oil lamp and incense are burnt.54

Hindu festivals are based on the lunar calendar, the main festivals are:55

  • Makar Sankranti in January

  • Holi in February/March

  • Sivaratri in March (whole night vigil)

  • Ramnavami in April

  • Krishna Janmastmi in August/September

  • Navratri in September/October (10 day festival) and

  • Deepavali in October/November.

4.2.4.5 Relevant practices

The following are the practices of most impact in court situations:

  • Status of women — In general, women have an equal status to men. However, Hindu women usually prefer to have a male relative with them when dealing with anyone in authority.56

  • Touching — A greeting in the form of “Namaste” is the most common practice. It suggests a respect from one soul to another soul. Body contact is avoided, not as a taboo, but as a cultural preference.

  • Dress — Hindu women put on glass bangles when they get married and do not remove them until their husband dies, at which point they are ceremoniously shattered. Breaking or removing these bangles is considered an extremely bad omen and would greatly distress a Hindu woman.57 Married women also wear a “Mangal sutra” or “thali” on a chain (which looks like a nugget) at all times. They also wear a red dot on their forehead.58 Some Hindus wear a sacred thread around their bodies, passing diagonally across their body from the shoulder to about waist level. This is put on at an important religious ceremony and must never be removed.59 Men of one particular Hindu sect (Swami Narayan) may wear a necklace. Some Hindus wear a religious talisman on a chain as a protection from evil action by others. Traditional clothing is worn when participating in worship or religious festivals.60

  • Worship and festival times — see 4.2.4.4 above.

4.2.5 Judaism

Judaism is one of the world’s oldest religions.

Any person whose mother was a Jew is considered to be Jewish. However, progressive communities also accept descent through the father if the child is being brought up as a Jew. Conversion to Judaism is possible after a rigorous course of instruction. People usually convert to Judaism to ally themselves with the family they are marrying into or have married into.

In Australia, there are many different Jewish congregations ranging from progressive to ultra-orthodox traditions.

Jewish people believe in a single God who created the universe and continues to govern it. Moses received the Ten Commandments and the “Torah” from God on Mt Sinai. The Torah revealed the way God wished to be served, the basic principles of Judaism and instructions on how Jews should live.

4.2.5.1 Main beliefs

Judaism is based upon thirteen principles of faith:

1. 

God created all things.

2. 

There is only one God.

3. 

God has no bodily form.

4. 

God is eternal.

5. 

We must pray only to God.

6. 

All the words of the prophets are true.

7. 

Moses was the greatest of the prophets.

8. 

The Torah we have is the same that was given to Moses.

9. 

The Torah will never change.

10. 

God knows human deeds and thoughts.

11. 

God rewards good and punishes evil.

12. 

The Messiah will come to redeem Israel and the world.

13. 

There will be a resurrection of the dead.

However, the more progressive Jewish traditions may dispute many of these principles.

The “Sabbath”, or “Shabbat”, is a holy day for Jews and extends from sunset on Friday to sunset on Saturday.61 Observing the Sabbath involves attending synagogue services on Friday evenings and family gatherings at home. Observant Jews are not allowed to work on the Sabbath or perform many non-arduous secular activities.

“Kashrut” (from the Hebrew meaning fit, proper or correct) states which foods can be eaten and how food is to be prepared. For example, meat (the flesh of birds and mammals) cannot be eaten with dairy. Separate utensils must be used for meat, as opposed to dairy. “Kosher” describes food prepared according to these standards.62

Observant Jews eat only Kosher food. For example:

  • Certain animals must not be eaten — including, the flesh, organs, eggs and milk of pork, birds of prey, insects and shellfish.

  • The permitted animals, birds and fish must be killed in accordance with Jewish law. This involves slaughtering by a qualified person in a manner that is as pain free as possible. Certain parts of permitted animals must not be eaten.63

4.2.5.2 Holy books and scriptures

“Mitzvot” are the 613 commandments that are contained in the “Torah” (the five Books of Moses), and include the Ten Commandments. The mitzvot have been expanded through interpretations by Jewish spiritual leaders. Jewish law (“Halakhah”) is comprised of the Torah and the interpretations and covers theology, ethics, marriage, food, clothing, education, work and holy days.64

4.2.5.3 Religious leaders

In Orthodox Judaism, only men can become rabbis; whereas Liberal and progressive Jews allow women to become rabbis and cantors.65

The rabbi’s authority comes from extensive study, and a rabbi is considered to be a teacher, rather than an anointed priest. A cantor is used to read the Torah, as few modern Jews can read the poetic Hebrew.66

4.2.5.4 Forms of worship and festivals

Observant Jews pray three times a day — morning, afternoon and evening — although spontaneous prayer may be offered at any time. Most Jews manage to fit these prayer times into their normal work schedule.

However, Sabbath and festival observance require special arrangements and consideration.

As indicated earlier, the holy day for Jews (when praying is most important) extends from sunset on Friday to sunset on Saturday.

Sabbath and festival worship is performed congregationally in a synagogue, where prayer takes place facing Jerusalem. In an Orthodox synagogue men and women are separated — the women sit upstairs or behind a partition or grille — and services are conducted by males in Hebrew. In liberal and progressive synagogues, men and women sit together.

The most important festivals are:

  • Pessach (Passover) — lasts eight days and marks the deliverance of the Israelites from slavery in Egypt — usually in March or April.

  • Shavu’ot (Pentecost) — celebrates God’s giving of the Torah on Mount Sinai to the Jewish people always held 50 days after Passover — usually falls in May or June.

  • Rosh Hashanah (New Year) — the anniversary of the creation of the world — usually in September or October.

  • Yom Kippur (Day of Atonement) — a 25 hour fast and period of abstinence, spent largely in prayers for forgiveness. Yom Kippur is the holiest day in the Jewish year — usually in September or October.

  • Succot (Tabernacles) — recalls the journey of the Jews through the desert on the way to the Promised Land — held 5 days after Yom Kippur and lasts seven days — usually held around October.

4.2.5.5 Relevant practices

The following are the practices of most impact in court situations:

  • Status of women — in Orthodox Judaism women have no formal role in liturgy. But the fact that being a Jew is determined through the matriarchal line is an important factor in family relationships.

  • Touching — Handshaking is generally considered appropriate and acceptable. However, ultra-Orthodox or “Hasidic” Jews avoid all physical contact with non-family members of the opposite sex. They also limit other forms of association and conversation with them.

  • Dress — Some Jewish men wear a “kippah” or “yarmulke” (religious skullcap) at all times. This is associated with the concept of reverence to God. Others wear the skullcap only during the Sabbath and on festivals. For reasons of integration some Jewish men wear a hat rather than a “kippah” or “yarmulke”. Observant men also wear an undergarment with fringes on its corners; these fringes are sometimes worn in a visible manner. Many observant married women keep their hair covered with a hat or scarf. Ultra-Orthodox or “Hasidic” male Jews wear black, large hats, long “earlock” hair and beards.

  • Worship and festival times — see 4.2.5.4 above.

4.2.6 Other religions

For some practical information on Baha’i and Sikhism, see A Practical Reference to Religious Diversity for Operational Police and Emergency Services, 2nd edition, Australasian Police Multicultural Advisory Bureau.

Otherwise, see 4.4.

4.2.7 Religious vilification

Religious vilification is the incitement of hatred against, serious contempt for, or revulsion or severe ridicule of a person or class of persons on the grounds of their religious belief or activity. There is currently no prohibition on religious discrimination in the Anti-discrimination Act 1977 (NSW). The NSW Government has decided to wait for the Commonwealth’s Religious Discrimination Bill to be passed before finalising its own draft, adding religion to existing protected grounds of disability, sex, race, age, marital or domestic status, homosexuality, transgender status and carer’s responsibilities.

The incidence of religious vilification is often associated with particular events, such as an increase of Islamophobic incident reports after particular terrorist attacks or political rhetoric,67 or during Israel-Gaza conflicts.68

Although there are limited grounds for a religious vilification complaint to Anti-discrimination NSW69 there are other ways to notify of religious vilification:

  • The Islamophobia Register offers a secure and reliable service that allows people from across Australia to report any form of anti-Muslim abuse: see https://www.islamophobia.com.au.

  • The NSW Jewish Board of Deputies provides a site for submitting details of incidents of an anti-semitic nature that have been directed at individuals; or incidents that have seen/overheard in a public setting: see https://www.nswjbd.org/antisemitic-incident-report/ .

4.3 The possible impact of religious affiliations in court

Appropriate account should be taken of the relevant religious affiliation of those attending court, people practising religions (particularly if they come from orthodox or conservative traditions within their religion), otherwise people may:

  • feel uncomfortable, resentful or offended by what occurs in court

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

It should also be noted that members of religions with the most obvious dress differences, or the most deviation from the more common forms of Christianity practised in Australia, tend to be discriminated against on religious or ethno-religious grounds much more frequently than other people.70 This may make some of them more likely to name any perceived problem, or any perceived difference in treatment as being a form of religious discrimination, even when it is not. However, if you follow the guidance provided in 4.4, this should be less likely to occur.

These problems are likely to be compounded if the person also happens to be from an ethnic or migrant background, female, a child or young person, lesbian, gay or bisexual, transgender(ed), a person with a disability, or is representing themselves — see the relevant other Section(s).

Section 4.4, following, provides additional background information and practical guidance about ways of treating people with various types of religious affiliation during the court process, so as to reduce the likelihood of these problems occurring.

The boxed areas provide the practical guidance.

4.4 Practical considerations

4.4.1 Modes of address for religious leaders

Points to consider:

  • In most cases, religious leaders should be addressed by their particular religious leadership title followed, in most cases, by their family name.

  • However, to avoid offence, it is best to ask the particular religious leader what mode of address they would prefer.

4.4.2 Oaths and affirmations

Anyone who has the necessary competence to present evidence in a court (including interpreters — see 3.3.1.5) must first be “sworn” in — as a means of ensuring that what they are about to say will be truthful. This can be done in the form of an oath or an affirmation. It is the person’s choice which they take.71 “The sensitive question of whether to affirm or swear an oath should be presented to all concerned as a solemn choice between two procedures which are equally valid in legal terms.”72

The legality of administering an oath depends upon two matters:73

1. 

Whether the oath appears to the court to be binding on the witness’s conscience;74

2. 

If so, whether the witness considers it to be binding on his or her conscience.75

It is irrelevant whether the witness observes a particular religion.

This means that:

  • In most cases, the standard oath (“I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth”, or for interpreters —“I swear by Almighty God that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability”)76 will only be suitable for those who are Christians and who are happy to take an oath. It has been customary in some courts (although it is not essential and has generally stopped being the practice in most courts)77 for any person taking this oath to hold a copy of the Bible in their hand as they take the oath.

  • Some Christian witnesses such as Quakers (the Society of Friends), Moravians and Separatists, prefer to make affirmations because they believe a religious oath sets a double standard of truthfulness, whereas they are duty-bound to tell the truth in all facets of life.78

  • For those who have no religion, or who do not wish to take an oath,79 the standard affirmation makes no reference to religion — “I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth”, or for interpreters —“I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.”80

  • For those who practise other religions and who wish to take an oath it will almost always be possible to adapt the oath so that it fits with their religion, by substituting the name of their God(s) into the standard oath.81

    Their appropriate holy book should be available as required. It is not essential that a religious text be used in taking an oath and it has generally stopped being the practice in most courts. The “Explanatory Note on the Judicial Process and Participation of Muslims” issued by the Australian National Imams Council suggests a procedure for administering an oath upon the Holy Quran.82

    Section 24A of the Evidence Act 1995 (NSW)83 provides that a person may take an oath even if the person’s religious or spiritual beliefs do not include a belief in the existence of a God. Section 24A provides that any such oath may be in the form prescribed by regulations. Unfortunately, as yet, there are no prescribed regulations. This means that, for example, Buddhists and Hindus (who would generally expect to swear an oath in accordance with their particular holy book/scriptures as opposed to a God or Gods) will need to use the standard affirmation instead.84

  • In most cases, the person’s legal representative or person calling the particular witness will have found out whether the person wishes to be sworn in on the basis of their religion or not. This should also ensure that the appropriate holy book is available if particularly required by that person. In other cases, the court may need to determine whether the person wishes to be sworn in on the basis of their religion or not. In which case, note that:

    • Some witnesses may not realise that they are able to swear to tell the truth in a way which is appropriate for them, and if not guided about this may simply agree to take the standard oath, with or without the Bible.

    • It is always best to state that it is important that the witness swears to tell the truth in the way that will be most meaningful. And that, for example, if they practise a particular religion that believes in a God or Gods, swearing to tell the truth in line with their religion (that is taking an oath) may be the most meaningful for them. If they reply that they want to swear to tell the truth in line with their religion, you will need to ask what religion they practise, and then if necessary, substitute the appropriate God or Gods — see 4.2 above.

    • It is always important to respect the wishes of the particular person in their choice of whether to take an oath or make an affirmation.

  • It is also important not to assume that someone who refuses, or is unable, to take an oath is any less likely to tell the truth than someone who chooses to make an affirmation that makes no reference to religion.

4.4.3 Appearance, behaviour and body language

As indicated in the relevant Sections above, there are a number of different religious practices in relation to these aspects.

Points to consider:

  • Dress — No-one should ever be asked to remove their religious dress in open court. If it is necessary to see under someone’s religious dress, it will be necessary to check with that person, or with someone who can advise you of the appropriate religious practice, what can be done. For example, it may be possible to have someone of the same gender check this in a private room, or to go to your chambers with an additional support person agreed to by all concerned. If someone is wearing a hat in court it is always wise to check whether there is a religious reason for this, rather than immediately asking them to remove it. Section 13A of the Court Security Act 2005 provides that court security staff may require a person to remove face coverings for the purposes of identification unless the person has “special justification” (s 13A(4)) which includes a legitimate medical reason: see above at 4.2.3.5. Accommodation could be made for a witness or party to give evidence by alternative means, for example, from behind a screen. The Court of Appeal found in Elzahed v NSW [2018] NSWCA 103 that a trial judge did not make an error in ruling that a witness could not give evidence with her face covered by a niqab as this would impede the judge’s ability to assess the witnesses’ reliability and credibility.

  • Disrespectful behaviour in court — It is a punishable offence for a person to intentionally engage in disrespectful behaviour in any NSW court. This includes an accused person, defendant, party to, or person called to give evidence in proceedings before the court. The offence was introduced to bridge the gap between contempt and community expectations of behaviour in court.85 The offence refers to behaviour which is disrespectful to the court or the judge presiding over the proceedings (according to established court practice and convention). The offender may be fined or face 14 days imprisonment if found guilty of the offence. The new offence does not affect any power with respect to contempt. Proceedings for contempt may be brought in respect of behaviour that constitutes a “disrespectful behaviour” offence, but a person cannot be prosecuted for both contempt and the offence for essentially the same behaviour.86

  • No direct eye contact — as indicated above, there are some religions for which it is taboo for some people to look (particularly the opposite sex) direct in the eye. For these people, not looking someone in the eye will not necessarily have anything to do with their honesty or credibility.

  • Touching/standing too close — many religions have rules that members of the opposite sex who are not family members are not allowed to touch each other, or in some cases, stand too close to each other.

  • If you are unsure whether a particular behaviour trait is to be expected within a particular religion, or unsure how best to deal with it to ensure justice is both done and seen to be done — either ask the person’s legal representative (if they have one), or ask the person themselves, or consider whether the court needs to obtain “expert” advice from someone who has expert knowledge about the particular religion. Note that it may be hard to get the information you need from the person themselves as they may not feel it is their place to inform you, or they may not understand why you need the information, or they may be reluctant to give you the information for some other reason that is religiously or culturally appropriate to them.

  • All or some of these differences in appearance, behaviour and body language may need to be taken into account whenever you make any assessment based on the demeanour of a person with a particular religious affiliation.

  • If appropriate, you may also need to alert the jury to the fact that any assessment they make based on the demeanour of a person with a particular religious affiliation must, if it is to be fair, take into account any relevant religious difference. This may need to be noted early in the proceedings rather than waiting until you give your final directions to them — otherwise, their initial assessment of a particular person may be unfairly influenced by false assumptions, and may not be able to be easily changed by anything you say in your final directions to them.

  • As prescribed by law, you may also need to intervene if it appears that any cross-examination is unfairly or inappropriately alluding to any particular religious difference in appearance, behaviour or body language.87

4.4.4 Language

Points to consider:

  • Use the appropriate language to describe any God(s) or religious values or practice. For example, always use “the” before any reference to the Buddha or the Dharma/Dhamma. There must be no blasphemy or apparent blasphemy.

  • Do not use any form of discriminatory or discriminatory-sounding language — Be careful not to describe a religious practice as immoral or irrational, even when it is unlawful in NSW. For example, it would be inappropriate to state that it is immoral to follow a religious practice that denies a particular form of medical treatment. In the case where that belief extends to the treatment of a child, for example, the court may have jurisdiction to make an order contrary to the practice. In such a case, the court should explain its decision on the basis of its jurisdiction, rather than engaging in discussion of the morality or otherwise of the belief.

  • Be careful not to generalise about a particular religion. As is evident from 4.2 above, most, if not all, religions have many approaches and forms.

  • Treat everyone as an individual, and do not make statements that imply that all those from a particular religious background are the same, or likely to act in the same way. Never assume or imply that even what you suspect or know to be the majority way of behaving or thinking for a particular religious group, is the standard by which any individual member of that group should be judged.

  • Be aware that for many who practise a religion, some words, concepts, values and ways of living may be much more problematic than for those who are not so orthodox about their religion, or for those who do not practise any religion. For example, the word “bugger” is a word bandied around quite casually by some Anglo-Celtic Australians often with no thought as to its literal meaning. In most religions, homosexuality and/or “practising” homosexuals or lesbians are considered unacceptable at best and sinful at worst — see also Section 8.1, under “Views of others”.

4.4.5 The impact of religious values on behaviour relevant to the matter(s) before the court

In most cases, a person’s religion will have a certain amount of, if not critical, influence on their values, and therefore on how they behave.

In other words, any of the values implied within the descriptions of the various religions listed above could (depending on the matter before the court) be a major influence on the way in which a person who practises that religion behaves, has behaved, or presents themselves, their expectations or their evidence in court.

Points to consider:

  • Be careful not to let personal views about a particular religion’s views or practice (for example, its apparent attitude to the role of women, or the type and nature of its worship) unfairly influence your (or others’) assessment.

  • Have the particular person’s religious values or practices been an influencing factor in the matter(s) before the court? Note for example, that in most religions homosexuality and/or “practising” homosexuals or lesbians are considered unacceptable at best and sinful at worst. In many religions sex before marriage is unacceptable and/or sinful. Although, be careful not to generalise about a particular religion and to check the particular person’s own religious values and practices.

  • If so, where possible, you may need to take appropriate account of these influences. For example, you may need to decide whether the law allows you to take account of any such influences and, then, as appropriate and at the appropriate time in the proceedings, so as to ensure that justice is done and seen to be done, explain why any such influences can/should be taken into account, or cannot/should not be taken into account. And you may need to explain this in any direction you make to the jury during the proceedings or before they retire, and in your decision-making or sentencing — see 4.4.8.

  • The religious values and practices of a particular person need to be accorded respect rather than disrespect by everyone in court — while explaining and upholding Australian law where it conflicts with the particular value(s) or practice(s). For example, as prescribed by law, this may mean intervening if cross-examination becomes disrespectful, or if it simply fails to take account of a relevant religious difference.88

  • If you are unsure whether a particular behaviour is the result of an adherence to a particular religion, or unsure how best to deal with it to ensure justice is both done and seen to be done — either ask the person’s legal representative (if they have one), or ask the person themselves. But note that it may be hard to get the information you need from the person themselves as they may not feel it is their place to inform you, or they may not understand why you need the information, or they may be reluctant to give you the information for some other reason that is religiously or culturally appropriate to them.

4.4.6 Appropriate breaks for prayer and/or religious festivals

As indicated above, court times and holidays are generally more suited to those who practise any form of Christianity than those who practise a non-Christian religion.

If requested, wherever possible:

  • Make the appropriate allowances for those who need to pray at certain times of the day (for example, Muslims) — that is, have a break in proceedings.

  • Make the appropriate allowances for relevant holy days of the week and not insist that someone be called to give evidence on that day, or when they are meant to be at their place of religious worship.

  • Make the appropriate allowances for (particularly important) religious festivals and not insist that someone be called to give evidence during such times.

4.4.7 Directions to the jury — points to consider

As indicated at various points in 4.4, above, it is important that you ensure that the jury does not allow any ignorance of religious difference, or stereotyped or false assumptions about people practising (or not practising) a particular religion to unfairly influence their judgment.

In your final directions to the jury, you may need to remind them of any points in relation to these aspects that you alerted them to during the proceedings, and/or cover them for the first time now.

This should be done in line with the Criminal Trial Courts Bench Book89 or Local Courts Bench Book90 (as appropriate), and you should raise any such points with the parties’ legal representatives first.

For example, you may need to provide specific guidance as follows:

  • That they must try to avoid making stereotyped or false assumptions — and what is meant by this. For example, it may be wise to give them specific examples of religious stereotyping (for example, that all Muslims are violent towards non-Muslims). It may also be wise to give them specific examples of making false assumptions based on their own religious practice or lack of it — for example, that it would be false and legally unfair to conclude that anyone who follows a particular religious norm that happens to conflict with their religious or other values (for example that people of the opposite sex should not generally touch each other in public), is therefore a strange person, untrustworthy or lacking in credibility.

    On the other hand, that they also need to assess the particular person’s evidence alongside what they have learned in court about the way in which people from that religious background tend to behave, speak, and what they tend to value, as opposed to the way in which they themselves might act, or the way in which people from their own religion are expected to act. In doing this, you may also need to provide guidance on any legal limitations that exist in relation to them taking full account of any of these matters. And you may also need to be more specific about the particular religious aspects that they need to pay attention to.

4.4.8 Sentencing, other decisions and judgment or decision writing — points to consider

Your sentencing, decision(s) and/or written judgment or decision must be just in each individual case and consistent, and preferably be considered to be fair and non-discriminatory by everyone affected, or referred to, irrespective of their religion or lack of religion.91

Points to consider:

  • In order to ensure that any person with a religious affiliation referred to or specifically affected by your sentencing, decision(s) and/or written judgment or decision also considers it/them to be fair and non-discriminatory, you may need to pay due consideration to (and indeed specifically allude to) any of the points raised in the rest of 4.4 (including the points made in the box in 4.4.7 immediately above) that are relevant to the particular case.92

  • Whether to allow a victim impact statement to be read out in court.

  • Be particularly careful when dealing with any matter directly related to a particular religion — for example, a development application for an Islamic place of worship or educational facility — to ensure that the matter is, and is seen to be, assessed in a similar way to the way in which the matter would have been assessed if it were related to a Christian religion — while, at the same time, and only if appropriate, taking fair and reasonable account of any proven, different requirements that relate to the particular religion.

4.5 Further information or help

The following organisations can provide further information or expertise about the five most common religions briefly described in this Section. This information is current as of November 2021:

Christianity

NSW Ecumenical Council
— includes 18 Christian denominations
Level 7, 379 Kent Street
Sydney NSW 1230
Ph: (02) 9299 2215
Fax: (02) 9262 4514
www.nswec.org.au

Catholic Archdiocese of Sydney

Catholic Communications
Polding Centre, 133 Liverpool Street
Sydney NSW 2000
Ph: (02) 9390 5100
Fax: (02) 9261 8312
www.sydneycatholic.org

Anglican Church Diocese of Sydney

Suite 4, Level 5
189 Kent Street
Sydney NSW 2000
Ph: (02) 8267 2700
Fax: (02) 8267 2727
Email:
www.anglican.org.au

Uniting Church of Australia — NSW/ACT Synod

222 Pitt Street
Sydney NSW 2000
PO Box A2178
Sydney South NSW 1235
Ph: (02) 8267 4300
Fax: (02) 9261 4359
www.nswact.uca.org.au

Presbyterian Church of Australia

168 Chalmers Street
Surry Hills NSW 2010
Ph: (02) 9690 9333 or 1300 773 774
Email:
www.pcnsw.org.au

Greek Orthodox — Archdiocesan District of NSW and ACT

242 Cleveland Street
Redfern NSW 2016
Ph: (02) 9690 6100
Fax: (02) 9698 5368
www.greekorthodox.org.au

Pentecostal

Apostolic Church Australia

National Administration Office
28/20 Enterprise Drive
Bundoora Vic 3083
Ph: (03) 6466 7999
Email:
www.apostolic.org.au

Australian Christian Churches

State Office
Unit 408 (Level 4)
12 Century Circuit
Norwest NSW 2154
Ph (02) 9894 1555
Fax (02) 9894 1552
www.nswacc.org.au

Lutheran Church — NSW & District

215/20B Lexington Drive
Bella Vista NSW 2153
Ph: (02) 8660 1200
www.lcansw.org.au

Jehovah’s Witnesses

PO Box 280
Ingleburn NSW 1890
Ph: (02) 9829 5600
www.jw.org

Salvation Army

The Salvation Army

Australian Eastern Territorial Headquarters
PO Box A435
Sydney South NSW 1235
Ph: (02) 9264 1711
Email:
www.salvos.org.au

Seventh-Day Adventist Church

Greater Sydney Conference
185 Fox Valley Rd
Wahroonga NSW 2076
Ph: (02) 9868 6522
Fax: (02) 9868 6533
Email:
www.adventist.org.au

Buddhism

Buddhist Council of NSW
25/56-62 Chandos Street
St Leonards NSW 2065
Ph: (02) 9969 8893
Email:
www.buddhistcouncil.org

Islam

Australian Federation of Islamic Councils
932 Bourke Street
Zetland NSW 2017
Ph: (02) 9319 6733
Email:
www.muslimsaustralia.com.au

Australian National Imams Council
Suite 3, 20 Worth Street
Chullora NSW 2190
Ph: 1300 765 940
Fax: 1300 765 964
https://www.anic.org.au/

Hinduism

The Hindu Council of Australia
17 The Crescent
Homebush NSW 2140
Ph: 1300 HINDUS
Email:
www.hinducouncil.com.au

Judaism

NSW Jewish Board of Deputies
Level 2, 146 Darlinghurst Road
Darlinghurst NSW 2010
Ph: (02) 9360 1600
Fax: (02) 9331 4712
Email:
www.nswjbd.org

The following NSW government agency can provide information about the appropriate religious organisation(s) for any other religion.

Multicultural NSW
PO Box 618
Parramatta NSW 2124
Ph: (02) 8255 6767
Email:
www.multicultural.nsw.gov.au

4.6 Further reading

Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, 2nd edn, 2002.

Australian Bureau of Statistics, 2016 Census, at www.abs.gov.au, accessed 29 November 2021.

Australian National Imams Council, “Explanatory Note on the Judicial Process and Participation of Muslims”, 2017, at www.anic.org.au, accessed 29 November 2021.

Multicultural NSW, at www.multicultural.nsw.gov.au/home, accessed 29 November 2021.

“Participation of Muslims in court processes” (2018) 30(2) JOB 18.

Judicial College (UK), Equal Treatment Benchbook, 2021 edn, London, at https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf, accessed 29 November 2021.

Supreme Court of Queensland, Equal Treatment Bench Book, 2016, Brisbane, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 29 November 2021.

B Rauf, “After R v Bayda; R v Namoa (No 8)” (2019) 31(9) JOB 81.

4.7 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 14 contains information about how to send us your feedback.


1Unless otherwise indicated, the statistics in 4.1 are drawn from the Australian Bureau of Statistics, 2016 Census, at www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1RNSW?opendocument, accessed 6 November 2017.

2Supreme Court of Queensland, Equal Treatment Benchbook, 2016, Supreme Court of Queensland Library, Brisbane, p 25, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 24 November 2017.

3ibid.

4The information in 4.2 is drawn from Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, 2nd edn, 2002, and the Supreme Court of Queensland, Equal Treatment Benchbook, 2016, Supreme Court of Queensland Library, Brisbane. The information has also been confirmed by representatives of the religions discussed.

5Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, ibid, p 32.

6Supreme Court of Queensland, Equal Treatment Benchbook, 2016, see n 2, p 25.

7Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 23; Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 26.

8Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 22.

9ibid.

10Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 26.

11ibid.

12Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 27.

13ibid.

14ibid; Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 27.

15ibid.

16Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 27.

17ibid p 24.

18ibid.

19Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 27.

20ibid.

21Muslim Population Worldwide, at <www.muslimpopulation.com>, accessed 24 November 2017.

22Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 28.

23ibid.

24ibid.

25ibid, p 27.

26Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 50.

27For further information, see Al-Muhajabah, Introduction to Islamic Monotheism, at www.muhajabah.com/tawhid.htm, accessed 24 November 2017.

28Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 50. For further information, see Islami City, The Five Pillars of Islam, at www.islamicity.com/mosque/pillars.shtml, accessed 24 November 2017. See also Judicial College (UK), Equal Treatment Benchbook, 2013, 2nd edn, London, at https://www.judiciary.gov.uk/publications/equal-treatment-bench-book/, accessed 24 November 2017.

29Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 29.

30ibid.

31ibid.

32B Rauf, “After R v Bayda; R v Namoa (No 8)” (2019) 31(9) JOB 81 at 83.

33ibid, p 30.

34Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 30; Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 51.

35ibid.

36ibid.

37The note can be downloaded from the ANIC website at www.anic.org.au, accessed 17 May 2018.

38R v Alou (No 4) [2018] NSWSC 221 at [237]–[238] per Johnson J.

39ibid at [236].

40Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 54–55.

41Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 55.

42Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), Pt 3, Div 4, ss 19A–19C.

43[2019] NSWSC 670

44ibid.

45ibid.

46Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 40.

47Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 32.

48ibid, p 31.

49Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 42.

50Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 32.

51Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, pp 32–33.

52Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 43.

53ibid

54Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 33.

55ibid.

56Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 46.

57ibid.

58ibid, p 43.

59ibid.

60ibid.

61Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 35.

62ibid, p 35.

63Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 36.

64ibid, p 35.

65Australasian Police Multicultural Advisory Bureau, A Practical Reference to Religious Diversity for Operational Police and Emergency Services, see n 4, p 62.

66ibid.

67See further B Rauf, “After R v Bayda; R v Namoa (No 8)” (2019) 31(9) JOB 81.

68See M Vergani and D Goodhardt, “We tracked antisemetic incidents in Australia over four years. This is when they are most likely to occur”, The Conversation, 2 April 2021, accessed 29 November 2021.

69See, for example, Anti-discrimination NSW, Anti-semitic graffiti, December 2018 at https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/complaints/complaint-case-studies/vilification/anti-semitic-graffiti.html, accessed 29 November 2021.

70See statistics and information contained in the Annual Reports of the Anti-Discrimination Board of NSW, at www.antidiscrimination.justice.nsw.gov.au/about-us/annual-reports, accessed 24 November 2017.

71Evidence Act 1995 (NSW), ss 21–23.

72Judicial College (UK), Equal Treatment Benchbook, London, 2013 at 3–8, see 3.2.1.

73Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 51.

74Omychund v Barker (1744) 1 Atk 21; 26 ER 15.

75R v Kemble (1990) 91 Cr App R 178 at 180.

76Evidence Act 1995 (NSW), Sch 1.

77Evidence Act 1995 (NSW), s 24.

78Supreme Court of Queensland, Equal Treatment Bench Book, see n 2, p 59, citing the Victoria Parliament Law Reform Committee, Inquiry into Oaths and Affirmations with Reference to the Multicultural Community Melbourne, Government Printer, October 2002 at 121.

79Oaths Act 1900 (NSW), s 13.

80Evidence Act 1995 (NSW), Sch 1.

81Evidence Act 1995 (NSW), Sch 1.

82Australian National Imams Council, “Explanatory Note on the Judicial Process and Participation of Muslims”, 2017, at www.anic.org.au, at [4], accessed 17 May 2018.

83Evidence Act 1995 (NSW), s 24A.

84Evidence Act 1995 (NSW), s 24A.

85Second Reading Speech, Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016, NSW, Legislative Council, Debates, 11 May 2016, p 9.

86Supreme Court Act 1970 (NSW), s 131; District Court Act 1973 (NSW), s 200A; Local Court Act 2007 (NSW), s 24A; Coroners Act 2009 (NSW), s 103A. Land and Environment Court Act 1979, s 67A.

87Note that s 41 of the Evidence Act 1995 imposes an obligation on the court to disallow a question if the court regards it as a “disallowable question” and is expressed in terms of a statutory duty whether or not objection is taken to a particular question: s 41(5). A “disallowable question” is one which is misleading or confusing (s 41(1)(a)), unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive (ss 41(1)(b)), is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate (s 41(1)(c)), or has no basis other than a stereotype: s 41(1)(d). A question is not a “disallowable question” merely because it challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness (s 41(3)(a)) — or because the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness: s 41(3)(b). Sections 26 and 29 of the Evidence Act also enable the court to control the manner and form of questioning of witnesses, and s 135(b) allows the court to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.

88see n 87.

89Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 2002–, Sydney, at <www.judcom.nsw.gov.au>, accessed 24 November 2017.

90Judicial Commission of New South Wales, Local Court Bench Book, 1988–, Sydney, at <www.judcom.nsw.gov.au>, accessed 24 November 2017.

91See also Judicial Commission of New South Wales, Sentencing Bench Book, 2006, Sydney and R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [10]–[11].

92See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.