Religious Freedom protections in new same sex marriage proposals: too few, too narrow

The debate over same sex marriage in Australia has been re-ignited by news that some members of the federal governing Liberal/National Party (LNP) coalition are proposing, contrary to their party’s policy, to introduce legislation in Federal Parliament this coming week to redefine marriage to extend it to same sex couples. In particular, press reports today indicate that a new Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will be introduced, one feature of which is that it contains legislative protections for religious freedom, designed to encourage support of the legislation by believers. In my view the protections to be provided, if press reports about the proposal are accurate, are far too few and far too narrow, and the proposal cannot be seen as providing adequate protection for this fundamental human right.

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Religious Freedom Protection in Australia- 2017 update

I recently presented a paper surveying general religious freedom protections available in Australia, based on a similar paper I presented in 2015 but updated with some more recent developments. The paper can be downloaded here.

Near my conclusion I note:

I would like to suggest that, given the “patchwork” protection for freedom of religion noted above and in the attached papers, it is past time for consideration to be given at the Commonwealth level for protection of religious freedom to be the subject of specific legislation. The Commonwealth has undertaken to provide serious religious freedom protection by acceding to the ICCPR and under art 18 in particular. It would be appropriate that this commitment be translated into law. Apart from other sources of Commonwealth power, it would seem fairly clear that the external affairs power would support implementation of the international human right to free exercise of religion, limited in the specific ways provided under art 18 but not in other ways that currently narrow its scope.

Hopefully the paper will be a useful resource in this area.

Birth certificate alteration for a married person?

A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.

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No religious discrimination where school has optional clause in creed

A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education [2017] WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.

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Protection of Religious Freedom through Discrimination Balancing Clauses

I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.

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Printing T-Shirts and Religious Freedom

In an encouraging development, the Kentucky Court of Appeals has affirmed a lower court decision that the action of a Christian small business owner, in declining to print a T-shirt celebrating “Gay Pride”, is not unlawful. This case is one of a number that have raised issues about the freedom of those with religious convictions that homosexual behaviour is wrong, to decline to provide services in support of the opposite view. It is a significant decision which may influence the course of similar cases elsewhere. 

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Proposed Abortion Law changes in NSW

Two NSW Private Member’s Bills relating to abortion may be debated in the NSW Parliament in the next month. One in particular will completely remove any legal regulation of abortions in the State. It will also have serious consequences for religious freedom and free speech. It seems worthwhile to bring the implications of these proposals to notice.

On the general area of abortion rights and freedom of conscience, I highly recommend a paper by Professor Michael Quinlan, Dean of the University of Notre Dame Law School, Sydney, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales”, (2016) BYU L. Rev. 1237. Professor Quinlan also has a clear explanation of the law of abortion in NSW at the moment, on which the following relies.

1. Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016

This Bill was introduced into Parliament on 11 August, 2016, by Dr Mehreen Faruqi, Greens MLC. If enacted it would make sweeping changes to the law of abortion in NSW. It would allow the killing of an unborn child at any stage prior to birth. It would impose a serious burden on the religious freedom of medical practitioners who have a conscientious objection to abortion. It would also seriously impede rights of religious freedom and free speech of those who would wish to protest against abortion near abortion clinics.

(a) The current NSW law on abortion

The criminal law of NSW currently prohibits abortion, the act of killing an unborn baby. See the Crimes Act 1900 (NSW):

82 . . . Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

83 . . . Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

84 . . . Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.

However, the key to understanding the current law lies in the use of the word “unlawfully”. There is a plausible argument that when Parliament enacted the legislation:

 [T]he word “unlawful” was included as a shorthand means of referencing the common law exception to the proscriptions on abortion where the procedure was conducted “in good faith for the purposes only of preserving the life of the mother.” R v Bourne [1938] 1 K.B. 687, 691[1]

But in more recent years the authoritative interpretation of the provisions has been seen to be found in a direction given to the jury in the District Court decision of R v Wald (1971) 3 DCR (NSW) 25. There Judge Levine said:

“… for the operation to have been lawful in this case the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health, which the continuance of pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted…. it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason  which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health .”[2]

In other words, if the mother’s life or physical or mental health are at stake, an abortion may be permitted, and apparently all the way up to birth. Note the implication of the ruling, however, that medical advice will be necessary if an offence under s 83 is alleged, of assisting in the process. But neither the ruling nor the legislation include any specific reference to the gestational age of the child. As Quinlan puts it:

Under the Wald test, the relevant danger might arise at any time during the pregnancy, and, if it did, abortion would apparently be permissible at any stage of pregnancy.[3]

There is an administrative document governing many medical facilities in NSW issued by the NSW Health Department, Pregnancy – Framework for Terminations in New South Wales Public Health Organisations (2014) which provides further guidance based on the gestational age of the baby, but there is no barrier in the criminal law of NSW to a termination occurring quite late in a pregnancy. (This may be contrasted with the UK, for example, where the law only allows abortions up to 24 weeks, and calls are being made for that limit to be lowered in light of medical technology allowing babies born at that age and younger to survive.)

(b) The impact of the 2016 Bill

(i) Abolition of legal prohibitions on abortion up to birth

The 2016 Bill, in Schedule 1, item 1.1, abolishes all statutory and common law prohibitions on abortion. In other words, it will no longer even be a possible criminal offence that someone has killed an unborn baby, right up to the moment of birth.

While the view is not always based on a religious commitment, the fact is that many believers take the view that an unborn child, from the moment of conception, is a human life worthy of the protection we afford to all humans. For Christians this can be based in the Biblical teaching that human beings are made “in the image of God” and so worthy of respect and protection (see Genesis 1:27, James 3:9), and references in the Bible to God’s care and concern for people while they are in their mother’s womb (see Jeremiah 1:5- “Before I formed you in the womb I knew you; before you came to birth I consecrated you”; Ps 139:13 “You created my inmost self, knit me together in my mother’s womb”.)

But the view that from conception there is a human life worthy of protection does not need to be taken on faith in the Biblical revelation. Increasingly the evidence of science, and the pictures produced by ultrasound, make this startlingly clear. Here’s a fairly typical quote (from this website):

Dr. Maureen Condic, Associate Professor of Neurobiology and Anatomy at the University of Utah School of Medicine, writes:

From the moment of sperm-egg fusion [the beginning of fertilization], a human zygote acts as a complete whole with all the parts of the zygote interacting in an orchestrated fashion to generate the structures and relationships required for the zygote to continue developing towards its mature state… The zygote acts immediately and decisively to initiate a program of development that will, if uninterrupted by accident, disease, or external intervention, proceed seamlessly through formation of the definitive body, birth, childhood adolescence, maturity, and aging, ending with death. This coordinated behavior is the very hallmark of an organism.

One argument in favour of abortion is that it is “just another medical procedure”. This is clearly incorrect. Of course it is a medical procedure, of course pregnancy has a huge impact on the body of the mother, but abortion is also the termination of a human life. Views will differ as to the circumstances in which it is justified to terminate one human life in  the interests of another person- but this simple fact, that a life is at stake, makes this a radically different kind of decision from the question whether one should have one’s tonsils removed.

But this legislation, if passed, will signal that the life of an unborn baby may be taken at any stage completely at the whim of the mother. (Or, as sometimes happen, because the mother is under pressure from the father or family members.) The current law in NSW at least requires a medical practitioner to consider the seriousness of the impact of the ongoing pregnancy on the mother. While prosecutions are rare, they are not unknown [2]. The Parliamentarians of NSW must surely remember the harms caused by unrestricted private abortion arrangements. To quote a colleague:

Whatever one’s views of when life begins Parliament has a duty to protect women from unscrupulous and dangerous abortion providers.  The R v Wald test requires abortion to be performed by a doctor.  Unsafe and unsanitary abortions ought to be a criminal offence – the history of this area demands it.  The current legislation performs at least some prophylactic effect by keeping abortion within the purview of doctors and enabling their prosecution.

This change would remove the modest protection provided by the current law altogether. It will be bad for women, and bad (of course) for unborn children.

(ii) Impact on conscientious objections

The Bill, in Schedule 1, item 1.3, also imposes a requirement on medical practitioners who have a conscientious objection to performing abortions, to first notify the patient “before giving any advice on abortion or other options” (so the patient can ignore the advice, presumably), and second to:

refer the person in a timely manner to another health practitioner, in the same profession, whom the health practitioner knows or reasonably believes does not have a conscientious objection to abortion, or to a local Women’s Health NSW (WHNSW) Centre.

This provision in effect replicates the controversial Victorian provision requiring “referral” (see the Abortion Law Reform Act 2008 (Vic) s 8.) It is unclear whether the Bill here requires a formal “letter of referral”, but many Roman Catholic (and other) medical practitioners regard this requirement as making them morally complicit in the subsequent abortion.[4] At the moment the NSW administrative guidance previously noted requires a practitioner to “direct” a patient to another practitioner who will perform the procedure. Even that requirement will be objectionable to many. The point here is that anyone who can use the Internet can easily find reputable abortion providers in Australia. There should be no need, once a medical practitioner has indicated they object to the procedure, for them to do any more.

(iii) Exclusion Zones around abortion clinics

Finally, the 2016 Bill replicates another bad trend in Australia, by purporting in Schedule 2 to set up, by way of amendment to the Summary Offences Act 1988, “exclusion zones” of 150 metres around abortion clinics. This will make it a criminal offence, not just to “harass, intimidate, interfere with, impede, obstruct or threaten” anyone entering or leaving a clinic, but even to “bother” such a person! (See proposed s 11AC.) Nor must anyone “communicate disapproval of abortion by any means” which can be observed by those using the clinic- see proposed s 11AD. Sub-section 11AD(2) tells us that:

This section prohibits disapproval by any means, including disapproval communicated by graphic, oral or written means or by any other means.

It seems fairly clear that this would include the simple act of quietly praying (as has been penalized in the ACT under similar laws.) (See also my previous post on a prosecution under Victorian obscenity law of someone displaying a picture of an aborted baby for some of these issues.) There is also a prohibition on taking or publishing images of persons at abortion clinics. Finally, in what seems like a desperate attempt to recognize freedom of political speech in a minimal way, we are told that:

11AG(1) This Division does not apply so as to prohibit conduct occurring in the forecourt of, or on the footpath or road outside, Parliament House in Macquarie Street, Sydney.

For previous comment on the “buffer zones” laws in other contexts, see my blog post, “Abortion “buffer zones”, free speech and religious freedom” (Nov 5, 2015), which links to an earlier comment on overseas law by Professor Quinlan. Since that post the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) (No 66 of 2015) has commenced operation, inserting new Part 9A into the Public Health and Wellbeing Act 2009 (Vic) as from 2 May 2016, with similar effect to the Tasmanian legislation noted in the blog post. (See also the Termination of Pregnancy Law Reform Act 2017 (Northern Territory), which received assent on 24 April 2017 but is yet to commence.)

There has been a successful prosecution under the Tasmanian law, which rejected a number of challenges to the law on free speech and religious freedom grounds.[5] In Police v Preston [2016] TASMC (27 July 2016, Mag C J Rheinberger) Mr Graham Preston and two other protestors were charged under s 9 of the Tasmanian law after having been found holding up signs protesting against abortions outside a clinic in Hobart. The Magistrate found that a challenge on the basis of the implied freedom of political communication failed, after making a detailed analysis of the law in accordance with the McCloy schema – see paras [32] and ff. She seemed to accept the defence submission that the prohibition was a “significant” burden on their freedom of speech on a political matter- see [38]. However, when considering the purpose of the legislation, she considered the whole issue of regulation of terminations of pregnancy under Tasmanian law, rather than (as arguably should have been the case) the specific issue of the “buffer zone”- see [41]. On this point her Honour concluded that the law was a proportionate response to a problem perceived by the legislature, and that it did not entirely remove the capacity of Mr Preston and the others to express their opposition to abortion- see eg [53].

There was also a challenge on the basis of the Tasmanian religious freedom provision in s 46 of the Constitution Act 1934 (Tas). The Magistrate sensibly accepted that the motives of the protestors were indeed their religious beliefs about the sanctity of unborn life- see eg [76]-[77]. But applying the “caveat” to s 46 concerning “public order”, her Honour held that the law was a reasonable law aimed at avoiding the risk of clashes between protestors and members of the public outside clinics, and also at protecting the privacy of those attending.

At para [84] her Honour said:

[84] …[T]he protest activity which is prohibited by s 9(2) of the Act clearly has the capacity to result in a disturbance to public order. Such conduct interferes with the privacy, indeed the medical privacy, of patients attending the premises at which terminations of pregnancies are conducted. The conduct has the potential to lead to some form of public disturbance…

The religious freedom defence was also rejected. It seems likely that laws of this sort will become more common, and striking the right balance of competing interests will be important (for example, is a zone of 150 metres really necessary?)

There has been an appeal of the Preston decision but no decision on the appeal has been handed down yet. Interestingly there is another case involving a different sort of “exclusion zone” currently on appeal to the High Court- a case involving former Greens leader Bob Brown and a conviction under a Tasmanian law forbidding “workplace protests”![6] This may, ironically, provide material for challenging the abortion buffer zone laws.

2. Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill 2017

This Bill was introduced on 30 March 2017 by the Hon P G Sharpe, MLC (ALP). It is very similar to the proposals in Schedule 2 of the 2016 Bill, though it is slightly differently worded. It also goes a bit further in protection of free speech on political matters: it allows (see proposed s 11P):

the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.

Summary

For anyone who takes the view that unborn human life, and women’s health, ought to be protected, these Bills are bad policy. The 2016 Bill dehumanizes unborn babies by making their interests of no account whatsoever. It opens up women seeking abortions to new risks. It also poses serious challenges to religious freedom of medical practitioners, some of whom may decide they can no longer work as such, if these are their legal obligations. Both the Bills also replicate the worst of the other Australian “buffer zone” laws criminalizing any attempt, however polite or respectful, to discuss the issue of abortion near abortion clinics. Like other such laws, there are serious questions as to whether these are not constitutionally invalid as impairing the freedom of political speech.

A number of Christian groups are supporting a petition expressing concern at these proposed laws. In a democratic society those who oppose the laws can make their views made known to members of Parliament.

[1] See M Quinlan, op cit, n 57.

[2] See the acceptance of this ruling in later decisions in K v Minister for Youth and Community Services (1982) 1 NSWLR 311, per Helsham J; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, NSWCA as cited by Simpson J in R v Sood (Ruling No 3) [2006] NSWSC 762 at [30]. See also the final decision R v Sood [2006] NSWSC 1141 (31 October 2006) where, unusually, a doctor was found guilty of an offence against s 83 because the evidence established that she had not made even cursory inquiries as to the matters necessary to be considered under the Wald ruling.

[3] Op cit, at 1249.

[4] For discussion from a Roman Catholic perspective on how this makes a person complicit, see Quinlan, op cit, at 1266-1268.

[5] For a detailed paper on religious free speech issues, see https://works.bepress.com/neil_foster/106/ . The following comments come from pp 48-49 of that paper.

[6] See the appeal documents in Brown & Anor v. The State of Tasmania at http://www.hcourt.gov.au/cases/case_h3-2016 .