SUNDAY - A DAY OF REST AND RELAXATION
5.1 It is clear that Sunday is regarded in Australia and other Western communities as a day of rest and recreation for citizens. Sunday has this character for diverse historic reasons, alluded to in Chapter 2. In this Chapter we consider whether the reasons for its observance today are such that service of civil process on Sunday should continue to be prohibited by law.
RELIGIOUS AND SECULAR INFLUENCES
5.2 The Sunday observance legislation of the English Parliament in the seventeenth and eighteenth centuries institutionalised, in the furtherance of religious beliefs, the restriction and repression on Sunday of normal weekday activities.1 These laws were adopted or copied in other countries including Canada and Australia.2 New South Wales inherited much of the English legislation3 and also enacted its own Sunday observance statutes,4 With the rise of the industrial revolution the existence of Sunday observance legislation appears to have provided a ready-made base for the introduction and spread of laws aimed to protect the welfare of employees by ensuring that Sunday should be available to them as a day of rest or at least that they should be compensated for giving up their day of rest. Such laws are now widespread.5 It is reasonably clear that Sunday today retains its character as a day of rest for reasons that are secular rather than religious. Society has, throughout history, taken established social conventions and adapted them to changed circumstances.6
5.3 If support is needed for the proposition that the nature of Sunday observance has changed it can be obtained from statements made in official reports and judgments in a variety of countries. In McGowan v. Maryland7 Chief Justice Warren of the United States Supreme Court said in 1961:
In light of the evolution of our Sunday closing laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.8
In Australia in 1970 the joint Committee on the Australian Capital Territory accepted as the principle underlying its recommendations, the rights (and responsibilities) of persons to pursue on Sunday activities involving “spiritual, social and physical recreation and the enjoyment of leisure”.9 The Parliamentary joint Committee on the Australian Capital Territory recommended in 1982 that the sale of all goods should be permitted on Sunday except by major retailers.10 In 1976 the Canadian Law Reform Commission commented in relation to the Lords Day Act of 1906 that “its practical application and enforcement today is secular in nature and effect.’’11 Earlier, in 1970, the Ontario Law Reform Commission had concluded its survey of Sunday as a day of rest in non-Christian as well as Christian societies with these words:
In short, there are sufficient precedents throughout the world for the legislative selection of Sunday as a uniform pause day for secular rather than religious purposes.12
In England, the Crathorne Committee reported in 1964 that “the statutes of the 17th and 18th centuries are no longer needed to secure their original purposes...”13
RECENT REFORMS IN NEW SOUTH WALES
5.4 In the past twenty years many reforms have taken place in the New South Wales laws relating to Sunday. Nevertheless, specific statutory regulation of commerce and industry on Sunday still exists, for example, in relation to retail trading, and penalty pay for employees. The law still restricts commercial Sunday sport and entertainment. Even so, it is fair to say that the tendency of lawmakers in this period has been to relax earlier restrictions and remove legal inhibitions on individual freedom of action. It could even be said that the apparatus of rules in the 1962 legislation on retail trading is designed to further freedom of trade, at least for small business.
IS SERVICE OF CIVIL PROCESS INCOMPATIBLE WITH THE CONCEPT OF REST?
5.5 If we accept that Sunday is now a day of rest and recreation for predominantly secular reasons, we face an important question. This is whether serving legal documents on that day is inconsistent with the concept of rest and recreation. If the answer to this question is “no”, we can then consider whether there are positive reasons favouring reform.
5.6 In posing the question in this way, we do not deny that there will be groups who believe, for religious or other reasons, that an extension of the right to serve legal process on Sunday should not be permitted - For example, the Anglican Church Diocese of Sydney, in its response to a draft of this report stated:
While we recognise a certain desirability of having a uniformity in legal processes, we regret extensions of this which will make Sundays more and more like an ordinary work day.
The response of Archbishop Clancy, the Roman Catholic Archbishop of Sydney, was similar, but with some difference of emphasis:
In a word, I would accept the Service of Civil Process on Sundays on purely pragmatic grounds, but I wish to record my vigorous opposition to the rejection of the religious dimension of Sunday, and its reduction to nothing more than a “secular pause” day.
As may be seen from Chapter 2 and the earlier paragraphs of this Chapter, this Commission does not take the view that Sunday is now solely a “secular pause” day. However, for reasons we have explained we think that the question whether service of process is inconsistent with the concept of Sunday as a day of rest should not be considered or answered only by reference to the beliefs of those who would see commercial activity as an infringement of their religious principles. Those beliefs and principles must be respected and taken into account in determining appropriate policy, but should not foreclose the issue.
5.7 We take the view that the service of process would not be inconsistent with the concept of Sunday as a day of rest and recreation. We have several reasons for this view:
- The community obviously accepts that many people must work on Sunday in order for society to function.
- In our view, the classification of Sunday as a day of rest and recreation does not necessarily mean that rest and recreation should be compulsory for all.
- A correlative of the “right” to have Sunday for rest and recreation is the entitlement of any person to choose to work on that day. This policy is, in our opinion implicit in current legislation governing Sunday retail trade and industrial conditions. Small businesses (with some exceptions) may trade on Sunday. The restrictions on trading by large retailers are not necessarily inconsistent with the general principle that people are entitled to choose to work on Sunday, since the restrictions may have other justifications.14 Further, there is a clear difference in principle between the imposition by an employer upon an employee of an obligation to work and a voluntary decision by a person to carry out his or her normal business or trade activity on that day.
- Some of the restrictions in current legislation are arguably designed to facilitate the exercise of individual freedom of behaviour on Sunday. For example, laws concerning Sunday entertainment often relate to particular hours of the day, which suggests that they are designed to allow the give and take necessary to accommodate the conflicting interests of particular groups, such as those who wish to go quietly to their churches and those who are football supporters (and players).
- The act of service of process is simple. Apart from reluctance or personal annoyance experienced by the, recipient of unwanted process, the interruption to the days activities is small.
INCONVENIENCE TO PERSONS SERVED ON SUNDAY
5.8 A further question is whether prejudice could be caused to a person served with civil process on a Sunday because of the fact that the courts will be closed on that day. Could a subpoena served on Sunday require the production of documents or the attendance of the party served to give evidence on the very next day? The answer is, that in general, the rules and practice of the courts of New South Wales would not permit this to happen for reasons mentioned in the following paragraph It should be borne in mind that the same considerations of inconvenience apply to the service of process on Sunday as apply to service on Saturday or at any time after normal business hours on Friday. Indeed, the same considerations would also apply to the service of process after normal business hours on any day if the process purported to require compliance upon the next day.
5.9 The Supreme Court Rules make specific provision concerning the time of serving subpoenas for personal attendance or for production of documents. The general requirement (in relation to Sydney) is that they must be served at least five days beforehand (in the case of medical experts, generally fourteen days beforehand).15 In principle, any person served with a subpoena is entitled to seek the indulgence of the court if the time given for compliance is unreasonable:
Service should be within a reasonable time before trial so as to enable the witness to be put to as little inconvenience as possible in attending.16
5.10 In dealing with “time” the Supreme Court Rules contain the general statement that when the court registry is closed on the “last day for doing a thing... the thing may be done on the next day on which the registry is open....”17
LIMITS ON THE CONCEPT OF REST
5.11 Acceptance of Sunday as a day of rest and relaxation to which citizens in general are entitled does not in our opinion lead to the conclusion that this” right” confers the additional entitlement to freedom from unpleasant experiences. Accepting Sunday as a day of the kind described above does not necessarily mean that citizens should also be entitled to immunity from events and experiences which they would prefer to avoid. If there are good reasons for permitting service of civil process on Sunday, the act of service should not be regarded as necessarily an unwarranted interference with the entitlements and expectations of the person served.
CONCLUSION
5.12 We therefore conclude that it is not inconsistent with the concept of Sunday as a day of rest and recreation for litigants to be permitted to serve civil process on Sunday. In the next Chapter we go further and describe those considerations which in our view make reform of the law desirable so as to permit such service. We also set out and explain our recommendations for reform.
FOOTNOTES
1. See paras. 2.14-2.22. Compulsory and lugubrious religious observance did not in the past, always characterise Sunday. The Ontario Law Reform Commission drew attention to the fact that the Sabbath was originally a day of rejoicing and was regarded as a time for festivity.
The Christians too regarded their Sunday in like manner... “We keep the eighth day for festivity.” In recognition of this joyous character of the Sabbath, no fasts were allowed in judaism ...
Report on Sunday Observance Legislation (1970), p.23.
2. See paras 4.1-4.17, 3.1-3.3, 4.20-4.22.’
3. See paras 3.1-3.3, 3.13.
4. Ibid.
5. See paras 2.28-2.31, 3.18.
6. One of the most eminent authorities to have noted the adaptation of pagan festivals by christian churches for their own good reasons was Sir James Frazer who supplies many examples in his classic work The Golden Bough; see 1954 ed. (Macmillan), CH.XXXVII.
7. (1961) 366 U.S. 420.
8. Id., p.444.
9. joint Committee on the Australian Capital Territory, Report on Sunday Observance in the Australian
Capital Territory (1971), Ch.3, para.35.
10. joint Committee on the Australian Capital Territory, Report on Retail Trading Hours in the AC.T. (1982), Ch. 8, para 2.25.
11. Law Reform Commission of Canada, Report on Sunday Observance (1976), p.51.
12. Ontario Law Reform Commission note 1 above, p.270.
13. Report of the Departmental Committee on the Law on Sunday Observance (Cmnd 2528, 1969), Ch 3, para 39.
14. See para 3.14.
15. Part 37 rules 7(7), 7A.
16. A V Ritchie, Supreme Court Procedure N. S. W, p. 128. 1.
17. Rule 2(4); see also rule 6 for business hours and opening registry in cases of urgency.
