People with a particular religious affiliation

4.1 Some statistics[1]

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 information[4]

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.

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 Muhammad[20] 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 Faith[27] 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 Pillars[28] (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.

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.[32]

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.[33] 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.[34] 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.[35] 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[36] 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”.[37] 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.[38]

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.[39] 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.[40]

  • 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. [41]

  • 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.

  • 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.[42] 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:[43]

  • “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.[44]

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).[45] 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.[46]

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.[47]

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.[48]

Other holy texts are:[49]

  • 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.[50]

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.[51]

Hindus also have shrines or designated rooms for worship at home, with pictures or small icons where an oil lamp and incense are burnt.[52]

Hindu festivals are based on the lunar calendar, the main festivals are:[53]

  • 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.[54]

  • 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.[55] 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.[56] 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.[57] 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.[58]

  • 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.[59] 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.[60]

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.[61]

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.[62]

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.[63]

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.[64]

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.

4.3 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.[65] 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.

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.

4.4 Practical considerations

4.4.1 Modes of address for religious leaders

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.[66] “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.”[67]

The legality of administering an oath depends upon two matters:[68]

1. 

Whether the oath appears to the court to be binding on the witness’s conscience;[69]

2. 

If so, whether the witness considers it to be binding on his or her conscience.[70]

It is irrelevant whether the witness observes a particular 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.

4.4.4 Language

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.

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.

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.

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

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 2017:

Christianity

NSW Ecumenical Council
— includes 16 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
Level 15, 133 Liverpool Street
Sydney NSW 2000
Ph: (02) 9390 5318
Fax: (02) 9390 5306
www.sydney.catholic.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: gsoffice@anglican.org.au
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: general@pcnsw.org.au
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
Email: webmaster@greekorthodox.org.au
www.greekorthodox.org.au

Pentecostal

Apostolic Church Australia

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

Australian Christian Churches

State Office
Unit 408 (Level 4)
12 Century Circuit
Baulkham Hills NSW 2153
Ph (02) 9894 1555
Fax (02) 9894 1552
www.nswacc.org.au

Lutheran Church — NSW & District

PO Box 3056
Rhodes NSW 2138
Ph: (02) 9736 2366
Fax: (02) 9736 1155
www.lcansw.org.au

Jehovah’s Witnesses

12–14 Zouch Road
Denham Court NSW 2565
Ph: (02) 9829 5600
www.jw.org

Salvation Army

The Salvation Army

Australian Eastern Territory
261-265 Chalmers Street
Redfern NSW 2016
Ph: (02) 9264 1711
www.salvos.org.au

Seventh-Day Adventist Church

Greater Sydney Conference
4 Cambridge Street
Epping NSW 2121
Ph: (02) 9868 6522
Fax: (02) 9868 6533
Email: sydney@adventist.org.au
www.adventist.org.au

Buddhism

Buddhist Council of NSW
25/56-62 Chandos Street
St Leonards NSW 2065
Ph: (02) 9969 8893
Fax: (02) 9966 8897
www.buddhistcouncil.org

Islam

Muslims Australia
932 Bourke Street
Zetland NSW 2017
Ph: (02) 9319 6733
Fax: (02) 9319 0159
Email: admin@muslimsaustralia.com.au
www.muslimsaustralia.com.au

Islamic Council of NSW
405 Waterloo Road
Chullora NSW 2190
Ph: (02) 9742 5752
Fax: (02) 9742 5665
www.icnsw.org.au

Hinduism

Hindu Council of Australia
17 The Crescent
Homebush NSW 2140
Ph: (02) 8208 9810
Fax: (02) 9746 8944
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: mail@nswjbd.com
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: contact@multicultural.nsw.gov.au
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 24 November 2017.

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

Multicultural NSW, at www.multicultural.nsw.gov.au/home, accessed 24 November 2017.

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

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.

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 24 November 2017.

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 11 contains information about how to send us your feedback.



[1] Unless 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.

[2] Supreme 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.

[3] ibid.

[4] The 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.

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

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

[7] Australasian 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.

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

[9] ibid.

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

[11] ibid.

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

[13] ibid.

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

[15] ibid.

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

[17] ibid p 24.

[18] ibid.

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

[20] ibid.

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

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

[23] ibid.

[24] ibid.

[25] ibid, p 27.

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

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

[28] Australasian 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.

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

[30] ibid.

[31] ibid.

[32] ibid, p 30.

[33] Supreme 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.

[34] ibid.

[35] ibid.

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

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

[38] ibid at [236].

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

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

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

[42] ibid.

[43] ibid.

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

[45] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 32.

[46] ibid, p 31.

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

[48] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 32.

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

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

[51] ibid

[52] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 33.

[53] ibid.

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

[55] ibid.

[56] ibid, p 43.

[57] ibid.

[58] ibid.

[59] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 35.

[60] ibid, p 35.

[61] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 36.

[62] ibid, p 35.

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

[64] ibid.

[65] See 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.

[66] Evidence Act 1995 (NSW), ss 21–23.

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

[68] Supreme Court of Queensland, Equal Treatment Benchbook, see n 2, p 51.

[69] Omychund v Barker (1744) 1 Atk 21; 26 ER 15.

[70] R v Kemble (1990) 91 Cr App R 178 at 180.

[71] Evidence Act 1995 (NSW), Sch 1.

[72] Evidence Act 1995 (NSW), s 24.

[73] Supreme 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.

[74] Oaths Act 1900 (NSW), s 13.

[75] Evidence Act 1995 (NSW), Sch 1.

[76] Evidence Act 1995 (NSW), Sch 1.

[77] Australian 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.

[78] Evidence Act 1995 (NSW), s 24A.

[79] Evidence Act 1995 (NSW), s 24A.

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

[81] Supreme 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.

[82] Note 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.

[83] see n 82.

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

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

[86] See 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].

[87] See 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.