NSW Presbyterians may be asked to take part in a worker health and safety survey about a proposed change to have only male elders. In his book Unshaken Allegiance, Professor Patrick Parkinson explains how a doctrinal dispute within a church denomination got caught up in health-and-safety regulations.
This story originally began by linking to the actual survey. But because we are read well beyond the Presbyterian Church, we have delinked it.t.
Here is an excerpt from Parkinson’s book.
“Some legal risks are remote because, while it is possible to interpret the law as applying in given circumstances, the risk of harm is low, and regulators are unlikely to take enforcement action,” Parkinson writes. “How much should someone’s interpretation of how the law might apply affect the organization’s decisions? In other words, is the cost of compliance worth it?”
And the NSW Presbyterians, it turns out, make a great case study of how to work out if compliance is required.
Parrkinson writes: An example of this question arose in the Presbyterian Church of NSW, which forbade discussion of certain topics in its General Assembly because to do so would, it was advised, risk breaching workplace health-and-safety laws.
[Parkinson footnotes two accounts of these events, one by The Other cheek.
• theothercheek.com.au/when-can-the-government-tell-churches-what-to-do
• ap.org.au/2024/07/25/erastianism-in-the-church]
The presenting issue was the Assembly’s decision to consider legislation that would permit only male elders. A paper on the issue was circulated. At the present time, there is no such restriction on who can be an elder in the Presbyterian Church of NSW. Changing the rules was no doubt a very controversial proposition.
Shortly before its assembly in 2023, the Church leadership received a letter from a member of the Church concerning the dissemination of the paper, and complaining about the lack of ‘psychosocial trauma support’ provided during discussion of its contents.
Legal advice received just before the Assembly said there was a risk of contravening the workplace health-and-safety law. The Assembly resolved to delay consideration of the matter until the Trustees had received fuller legal advice.
After the Assembly, the Trustees sought legal advice from a senior lawyer through the Church’s legal officers. This advice confirmed that the workplace health-and-safety law applied to the Assembly’s deliberations, although the contents of that advice were not shared with members. The argument that discussion in a church assembly could be in breach of NSW workplace health and safety law likely arises from the law’s requirement to consult with ‘workers’ on matters that could affect safety. The argument would be along the lines that ‘workers’ includes volunteers. Elders are volunteers. The argument might be that a change to the Church’s rules could cause psychological harm to volunteers and so is an issue of workplace safety. Those who aspire to eldership in the future also needed to be consulted as they might suffer psychological harm.
Therefore, debate on the issue could not proceed without consulting everyone who might be affected. The specific risk of not so doing was that workplace safety regulators could have prosecuted the Church for breach of the law.
The Trustees reported that, based on this advice, the Assembly should develop a “responsive and inclusive approach” to consider the matter. At the 2024 Assembly, a motion was passed “that the sex qualifications of elders shall not be the subject of questions, speeches, comments or debate for the duration of this session of Assembly”.6 A committee was established to set up a consultation process that would comply with workplace health-and-safety law with a view to bringing recommendations back to the next Assembly. [The current survey is the result]
There are plenty of good reasons why consultation with elders of local churches and other interested members is highly desirable, particularly when a change might be controversial and risk the denomination losing members. On the other hand, such a view on the application of workplace health-and-safety law would make any church governance unworkable. If the spectre of ‘psychological harm’ could be so readily invoked to shut down discussion, and if legal questions arise as to whether Parliament intended the workplace health-and-safety law to take such a wide view of ‘harm’, it would become difficult for organisations to function. The same arguments could be applied to countless other issues where there is a potential clash between theological positions and prevailing cultural understandings of ‘equality’ and ‘non-discrimination’.
In dealing with threats of this kind from a biblical perspective, several questions need to be asked. First, what was the intention of Parliament in enacting the law? Second, is it likely that Parliament intended the view of the law that has been advanced? Third, what is the likelihood of legal action being taken if the organisation does not comply with the understanding of the law that is being urged upon it? Fourth, is it likely that such legal action would succeed? Fifth, what are the likely consequences if legal action does succeed? Sixth, would adhering to the view of the law that has been advanced interfere significantly with the core business of the organisation? Seventh, if there is some kind of legal risk, what is the organisation’s risk appetite?
The last of these questions would be asked by any business faced with an unreasonable demand based upon a particular view of how a broad and general law applies in a given context. Legal advice on such matters is not always helpful, for lawyers will often give the most conservative answer to any legal question. That is, if someone asks whether a course of action involves a legal risk, and there is some doubt about how wide the concentric circles of the law go, the safe legal answer is to assume the law’s maximum reach and to advise against the proposed course of action. But this is not always helpful, especially if it imposes unnecessary constraints or burdens on the organisation. There has to be an assessment of the magnitude of the risk.
When it comes to predicting the decisions of regulators, it is worth remembering that the best way to undermine respect for a law is to insist on an unreasonable application of it. Regulators with limited resources will be well aware of that, and are therefore unlikely to pursue enforcement applications at the periphery of the law’s concerns. They are much more likely to concentrate on egregious breaches of the law.
Activist interpretations of the law
In thinking about compliance, another hazard is how to respond to official interpretations of the law that seem to exceed what the law requires. Sometimes organisations will—either deliberately, or from an excess of enthusiasm for their cause—say that the law requires this or that when it does nothing of the sort. In other words, it might be necessary to look behind claims about the law and to form an independent judgement—including getting legal advice, should the circumstances require it.
If someone says that the law requires x or y, and that sounds incredible or too bad to be true, there is at least some likelihood it is not true. An illustration of this is the interpretation of a ‘conversion therapy’ law that was given by the responsible regulatory agency in the Australian state of Victoria. The Change or Suppression (Conversion) Practices Prohibition Act 2021 makes it an offence to engage in a “change or suppression practice” in relation to a person’s sexual orientation or gender identity. This is defined as a practice or conduct directed towards a person for the purpose of “changing or suppressing the sexual orientation or gender identity of the person; or inducing the person to change or suppress their sexual orientation or gender identity”.
This legislation gives enforcement powers to the Victorian Human Rights and Equal Opportunity Commission, which, for a long time, gave this as an example of a ‘conversion practice’:
A parent refusing to support their child’s request for medical treatment that will enable them to prevent physical changes from puberty that do not align with the child’s gender identity and denying their child access to any health care services that would affirm their child’s gender identity.
In other words, the advice given was that the parent must take the child to a medical practitioner who is prepared to prescribe puberty blockers to prevent the onset or continuation of the child’s normal pubertal development.
This illustration was clearly wrong in law. Under the legislation, prohibited conduct must involve a practice or conduct which is active in nature. It must either aim to change or suppress a person’s sexual orientation or gender identity, or to induce a person to do so. One cannot engage in a ‘change or suppression practice’ by omission. Furthermore, simply refusing to take a child to a doctor for medical intervention does nothing to change the child’s ‘gender identity’. The Commission was made aware that its position was not legally tenable, and backed off its extreme position. But it wasn’t until two years later that it chose to remove the example from its website—and only after international controversies about the safety and suitability of puberty blockers as a response to childhood gender incongruence.
When activists who are passionate for a cause work for a regulatory organisation, overreach is an ever-present risk. Their interpretations of the law cannot be taken necessarily as representing a fair reading of it. Threats of legal action based upon such overreach may be empty.
Unshaken Allegiance, Patrick Parkinson, Matthias Media 2025.
Available at The Wandering Bookseller $19.99