Face-coverings and testimony in court

Should a Muslim woman who wears a face covering for religious reasons, be entitled to give evidence in court with her face covered? This important issue, which has been discussed in other common law jurisdictions, has now been considered in the NSW Court of Appeal, in Elzahed v State of New South Wales [2018] NSWCA 103 (18 May 2018). The Court concluded that no error had been shown in a ruling by a trial judge, that Ms Elzahad was not entitled to keep her face covered while testifying.

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Euthanasia and Assisted Dying- the law and why it should not change

This is a paper I presented recently at an evening considering issues around euthanasia and assisted dying: Euthanasia Paper May 2018. It presents reasons why changing the law in these areas is not a good idea in the interests of society at large and the vulnerable sick and elderly in particular.

For further material on this issue, see the excellent site “Health Professionals Say No“, which as well as providing a long list of health professionals who oppose euthanasia, also links to a set of resources for further study. And for a recent UK paper exploring the meaning of “dignity” in this context, see the report Dignity at the End of Life: What’s Beneath the Assisted Dying Debate? from the Theos Institute. (Thanks to Dr Megan Best for these extra resources.)

There is also an excellent recent piece here, “Physician-Assisted Suicide: Why Neutrality by Organized Medicine Is Neither Neutral Nor Appropriate” (2 May 2018, Journal of General Internal Medicine) arguing for health professionals to continue to actively oppose  Physician Assisted Suicide.

These comments from the front page of the first website noted above summarise the issues very well:

We believe that crossing the line to intentionally assist a person to suicide would fundamentally weaken the doctor-patient relationship, which is based on trust and respect. The power of the clinician/patient relationship cannot be over-estimated. It is proven the desire to die diminishes dramatically when appropriate care and support is provided.

We are especially concerned with protecting vulnerable people who can feel they have become a burden to others, and are committed to supporting those who find their own life situations a heavy burden. We believe such laws would undermine the public perception of the dignity and value of human life in all its different stages and conditions. There is strong evidence to the inherent lack of safety and proven abuses where physician assisted suicide and euthanasia laws exist.

Government focus should be on the compassionate and equitable provision of Social Services, Health Care and Palliative Care toward maintaining and protecting the dignity and lives of those with illness, age or disablement. There is still much to be done to address social, medical and mental health inequity and in our society.

Doctors and Healthcare Professionals are not necessary for the legalisation or practice of assisted suicide. Their involvement is being sought only to provide a cloak of medical legitimacy. Doctors, nurses and allied health professionals focus should be on saving lives and providing real care and support for those who are suffering.

High Court upholds rejection of inter-state vilification orders

In a Federation like Australia, different jurisdictions (States and Territories) may have different rules on what amounts to “discrimination” or “vilification”, and how those things interact with religious freedom. One of the pressing issues here in recent years has been whether there will be a “race to the bottom” in freedom of speech on religious issues, with one jurisdiction in particular, Tasmania, raising deep concerns with a very broad prohibition on causing “offence” related to matters such as sexual orientation.

Today the High Court of Australia, on appeal from NSW, has affirmed the decision of the NSW Court of Appeal that State and Territory “tribunals” (non-judicial panels usually used in discrimination issues) have no jurisdiction to impose penalties on residents of other Australian jurisdictions under their own local laws. The important decision in Burns v Corbett [2018] HCA 15 (18 April 2018) (court-prepared summary available here) is a good outcome, and at the very least will force Australian jurisdictions to consider very carefully whether they want their local law to apply in other parts of the country. If they do, they will be required to give jurisdiction in those cases to their courts, rather than to lower tribunals.

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Anglican cleric disciplined for entering same sex marriage

The recent decision of the England and Wales Court of Appeal in Pemberton v Inwood [2018] EWCA Civ 564 (22 March 2018) upholds what was in effect disciplinary action taken against a Church of England clergyman, the Reverend Canon Jeremy Pemberton, on account of his entering into a same-sex marriage. The decision is a sensible one which upholds the religious freedom of the Anglican church to operate in accordance with its fundamental religious beliefs.

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“Irrational and illogical” to believe that sexual orientation can never change: Federal judge

A judge of the Federal Court of Australia, Justice Jagot, handed down a decision recently in which her Honour said that a Tribunal’s reasoning, based on the assumption that a person could never change their sexual orientation, was “affected by illogicality of the kind required to constitute jurisdictional error”- para [15]. The decision, in Abboud v Minister for Immigration and Border Protection [2018] FCA 185 (2 March 2018), was a sharp reminder that bureaucratic decisions must be based on evidence and not pre-conceived policy stances. The comments may have wider implications for arguments that are often unthinkingly presented about the possibility of someone changing their sexual orientation.

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Religious Freedom Implications of Same Sex Marriage in Australia

I presented a paper at a conference on “Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms” on Thursday  15 Feb. The paper, “Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues” is linked here for those who are interested: Freedom of Religion or Belief paper Foster .

I argue that, while some religious freedom rights are protected under the amended marriage law, there are some serious gaps in protection for some involved deeply in the celebration of same sex weddings, and also a failure to deal with a range of other issues, such as the ability of faith-based schools to operate in accordance with their fundamental commitments in both engagement of staff and teaching pupils, and whether people who conscientiously believe that same sex relationships are not best for human flourishing will be penalised in the workplace or elsewhere. I note that at least one State in the US has enacted legislation to deal with these issues, which has survived one challenge in the US Supreme Court, and I recommend that Australia seriously consider also legislating in this way.