I recently presented a paper exploring legal issues arising for Christian schools in NSW, which I thought may be of general interest. It also discusses developments in other Australian jurisdictions which may have an impact on NSW law in the future. The paper can be downloaded here:
We have recently seen the announcement of the activation of a new “extra-provincial” Anglican diocese in Australia. The “Diocese of the Southern Cross” (“DSC”) is not a part of the official “Anglican Church of Australia” (“ACA”). It has been set up to provide an ecclesiastical home for congregations who are Anglican by theology and conviction but find themselves unable to accept the authority of bishops of the ACA who do not accept the teachings of the Bible, especially on the subject of the Biblical views of marriage. So the far the DSC has only one congregation in its network, but there may be others who join as the divide within Anglicans in Australia deepens.
Great to see that the first volume of the Australian Journal of Law and Religion has been published: see here. All articles are free to download. Congratulations to editors Alex Deagon and Jeremy Patrick on this new venture! I am honoured to have an article in this first issue on “Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws”.
For convenience, here is a copy of the first table of contents:
Law and Religion in the Classroom: Teaching Church-State Relationships: Renae Barker
The Formation of Islamic Law in Indonesia: The Interplay Between Islamic Authorities and the State: Muhammad Latif Fauzi
Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws: Neil Foster
Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts: Andrew Hemming
Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions: Patrick Parkinson
Christians: The Urgent Case for Jesus in Our World by Greg Sheridan: Katie Murray
Law and Religion in the Liberal State edited by Md Jahid Hossain Bhuiyan and Darryn Jensen: Jeremy Patrick
Special Topic Forum: The Future of Law and Religion in Australia
The Continued Existence of the Crime of Blasphemy in Australia: Luke Beck
Proportionality in Australian Constitutional Law: Next Stop Section 116?: Anthony Gray
The Liberal and Post-Liberal Futures of Law and Religion in Australia: Joel Harrison
I am happy to post this call for academic papers to be presented at a forthcoming conference in Adelaide (South Australia) on “Theology and Jurisprudence”. (For the moment this will be of interest only to those academics who would like to suggest a paper to be presented.)
Call for papers
Theology and Jurisprudence Symposium
10 February 2023, Adelaide Law School (‘ALS’), South Australia
Proposal submission deadline: 1 November 2022
A recent decision of the NSW Supreme Court has applied a rarely used provision in legislation setting up Australian universities to provide a legal remedy for a student penalised for her comments on a controversial issue. In Thiab v Western Sydney University  NSWSC 760 (10 June 2022) Parker J ruled that the actions of Western Sydney University (“WSU”) in penalising the student, Ms Thiab, for comments she had made expressing disagreement with the State’s compulsory vaccination requirements, were unlawful. The case is an interesting example of protection of a student’s freedom of speech through application of the legislation establishing the University, and would apply not only to “political” comments as in this case, but also to religious beliefs.
In a good development for religious freedom, the UK Employment Appeal Tribunal (“EAT”) in its decision in Mackereth v Department for Work and Pensions & Anor  EAT 99 (29 June 2022) has ruled that a Biblical view of human sex and gender is “worthy of respect” and may be protected as a religious belief in an appropriate case. Unfortunately for Dr Mackereth, the outcome of the appeal was that the way he had been treated by the relevant Department in response to his protected belief was a “proportionate” and hence lawful action. As I will explain below, I think this part of the ruling may be challenged. But it is good to see common sense on the issue of the status of his belief, which is one that would be shared by many people in the community.
The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.
I am presenting a paper to a seminar for senior leaders in Australian theological colleges, dealing with religious freedom challenges. I comment briefly on some of the current protections provided, but also how those protection have been eroded recently, especially in Victoria (where amendments to the Equal Opportunity Act 2010 (Vic) which I previously commented on have now commenced.) A copy of the paper can be downloaded here:
I am pleased to announce that a new book of which I am one of the editors will be published on 30 June. The book is Law and Religion in the Commonwealth: The Evolution of Case Law (Hart/Bloomsbury, 2022) and my esteemed co-editors are Dr Renae Barker (UWA) and Professor Paul Babie (Adelaide). The book is a collection of studies of law and religion issues from around the Commonwealth of Nations, from established scholars and also from some who are just starting out.
From the publisher’s description:
Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.
The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria.
The cases are divided into four sections covering:
– Foundational Questions in Law and Religion
– Freedom of Religion around the Commonwealth
– Religion and state relations around the Commonwealth
– Rights, Relationships and Religion around the Commonwealth.
Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include:
– Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia
– The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia
– Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights
– R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.
The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.
My chapter is an analysis of the key Australian case, Christian Youth Camps Limited v Cobaw Community Health Services Limited and is sub-titled “Balancing Discrimination Rights with Religious Freedom of Organisations”. The book can be pre-ordered here, and will be available from June 30.
More information about the book, and a sample of the first chapter, can be seen here.
The question as to whether same sex marriages entered into under Australian civil law can be blessed in an Anglican Church service is one that has generated much disagreement within the church. An important Opinion of the Appellate Tribunal of the Anglican Church of Australia in relation to a question posed by the Diocese of Wangaratta (Primate’s References re Wangaratta Blessing Service, 11 Nov 2020) held that it is lawful for a diocese to approve such a formal blessing. I have now contributed a chapter to a book of essays prepared for the consideration of the forthcoming General Synod discussing the issue, analysing the Majority Opinion and its implications. The chapter is available for download here, for those who are interested. I conclude, in brief, that as a matter of internal Anglican doctrine, the decision is contrary to the “doctrine of the Church”, which finds its ultimate source in the Bible. The Majority Opinion takes a too narrow view of the word “doctrine”, in my view. I suggest that this may have consequences outside the church:
unfortunately the narrow view taken by the Majority Opinion of the Appellate Tribunal may encourage a narrow view of the word to be taken by [secular] courts in the future, with the result that clauses protecting religious freedom may be unduly read down.At p 47.
From the perspective of the general law of Australia, a church which declined to bless a same sex marriage might be accused of “sexual orientation” discrimination if they would offer such a blessing to a heterosexual couple. But balancing clauses under discrimination law would seem to have the effect that such a decision would not amount to unlawful discrimination, if the decision was:
(d) [an] act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.Section 56, Anti-Discrimination Act 1977 (NSW)
(See also the similar provision in s 37 of the Sex Discrimination Act 1984 (Cth).)
It seems to me to be fairly clear that the “doctrines” of the Anglican Church would prevent the blessing of a same sex marriage. Indeed, the General Synod of the church said as much in a 2017 resolution:
the doctrine of our church, in line with traditional Christian teaching, is that marriage is an exclusive and lifelong union of a man and a woman (emphasis added)See ‘MARRIAGE, SAME-SEX MARRIAGE AND THE BLESSING OF SAME-SEX RELATIONSHIPS’, adopted 7 Sept, 2017, at https://anglican.org.au/the-general-synod/search-resolutions-of-gs-sessions/?sid=2827
But the Majority Opinion of the Appellate Tribunal might cast some doubt on that proposition, and as a result needs urgent consideration by the next General Synod.