I was invited to speak to the J Rueben Clark Law Society annual conference on Friday May 29, and gave a paper on Religious Freedom in Australia. (I am not a member of the Society but happy to share in the work of supporting religious freedom with its members.) The paper covers something of the ground I covered in a previous blog post on this area, but in more detail and with footnotes! After the paper one member of the audience noted that I had omitted to mention s 46 of the Tasmanian Constitution Act 1934 which is the only provision for specific religious freedom protection in Australia in a State Constitution. Worth keeping in mind though so far no court has ever had occasion to consider what it means. Those who are interested in a detailed analysis of the somewhat patchwork system for religious freedom protection in Australia at the moment may find the paper of interest.
In a previous post I mentioned a series of cases raising the question as to whether Christian business owners who declined to provide their services to support same sex weddings, were guilty of sexual orientation discrimination. (Answer so far: Yes.) In that post I mentioned a case involving bakers in Northern Ireland which at the time had not come before the courts. The decision in that case, Lee v Ashers Baking Co Ltd  NICty 2 (19 May 2015) has now been handed down.
Mr Lee is a member of the “Queerspace” group in Northern Ireland, which had been campaigning for legislative change recognising same sex marriage there (Northern Ireland, while a part of Great Britain, has its own legislature and has not followed the lead of England and adopted same sex marriage.) Shortly after the third debate on the issue in the Assembly, which had rejected proposals for change, he went into the Ashers cake shop and ordered a cake to use at an event marking the celebration of gay rights. (Interestingly the judge describes the event at  as “to mark the political momentum towards legislation for same-sex marriage”, an interesting use of the word “momentum” as all the votes that had been held up to that point had rejected the proposal; indeed, since the events at issue in this case there has been a fourth vote on the matter which has also failed.)
He asked for the cake to be made featuring a picture of “Bert and Ernie”, two popular muppets from the children’s show Sesame Street (despite the fact that the producers of the show have previously clearly indicated that Bert and Ernie are not romantically involved!) Ignoring possible copyright issues, the bakers declined to make the cake on the more important grounds that they were Christians who took the Biblical views of appropriate sexual behaviour seriously, and that they were being asked to devote their cake-making skills to a message with which they fundamentally disagreed. With the apparent support of the local human rights organisation, Mr Lee took an action for discrimination against the bakers, alleging both sexual orientation discrimination and also the somewhat unusual category of “political viewpoint” discrimination.
Since this blog is about “law and religion” rather than politics (!), I won’t spend much time on this second ground. I gather that this ground is not very common as a basis for discrimination, and was introduced in Northern Ireland mainly as a result of the very deep-seated resentments between the main political forces in that area after many years of violence and hatred. The difficulty of a prohibition of discrimination on political viewpoint grounds, of course, is that it opens up the question of whether people are free to make decisions on the basis that they disagree with someone’s politics or not.
The UK Human Rights blog, experts in this area, comment as follows on this aspect of the case:
It seems Ashers Bakery were inevitably going to lose this case, on the basis that they directly discriminated on grounds of political opinion. This form of anti-discrimination law is unique to Northern Ireland and designed to deal with the particular problem of someone being treated unfavourably because of their Unionist or Nationalist views. However, the Order is drafted widely enough that it included Mr Lee’s campaigning for same-sex marriage, so the decision that the refusal to bake the cake was discrimination on grounds of political opinion must be correct. This does have the strange effect that, whilst the Northern Ireland Assembly have repeatedly refused to legalise same-sex marriage, it is nevertheless illegal to refuse to bake a cake in support of it!
To turn to the other alleged ground of discrimination, essentially the claim here is similar to that made in the other “wedding industry” cases noted previously, that by refusing to support same sex marriage as an institution, the bakers have treated the customer less favourably than others, and hence have discriminated on the grounds of sexual orientation. District Judge Brownlie said:
 I [accept] the Plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.
With respect, her Honour really does not, in my view, give proper weight to the argument that the bakers, as they claimed, were not discriminating against Mr Lee as a person, but were declining to give their support to the message he wanted to convey, which was, literally, “Support Gay Marriage”. But her Honour’s response was that this was not important:
 Additionally, I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non – Christian decorator icing the cake or, alternatively, sub-contracting this order.
For reasons which remain obscure, even on multiple readings, her Honour said that the relevant “comparator” (for the purposes of determining whether sexual orientation discrimination had taken place) was not to consider the situation of a heterosexual person who wanted to order the same cake, but instead to compare the refusal to supply the cake here with how they would have responded to “a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage””- see . The only explanation that seems possible for this comparison seems to be supplied by the very telling comment her Honour goes on to make:
I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation. There is also an exact correspondence between the advantage conferred and the disadvantage imposed in supporting one and not the other.
In Bressol v Gouvernement de la Commaunite Francaise Case  ECR 1-2735, para 56,  3CMLR 559:
“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification”. My finding is that the Defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The Plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation. (emphasis added)
The comment can only be read as saying that discrimination here is unlawful because the class of persons who support same sex marriage is identical to the class of persons who are of homosexual sexual orientation. The problem is, of course, is that this comment is palpably false. Again, let me quote the UK Human Rights blog, a source which has never been known to be overly given to conservative views:
[T]he judge’s findings in relation to discrimination on grounds of sexual orientation do not make much sense. One key misstep appears to be that she conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage.
To the list of people who are gay and do not support same sex marriage we may add some homosexual commentators in the Republic of Ireland in the lead-up to the recent referendum in that country.
Still, having found that anyone who opposes same sex marriage must be opposed to homosexual persons (the implications of this equation), it is not surprising that the Judge found that the bakers had discriminated on the basis of sexual orientation.
Assuming that this was the result required by the regulations, her Honour went on, as she was required to, to consider whether the regulations then were inconsistent with the principles of the European Convention on Human Rights. In particular article 9 of the ECHR requires recognition of freedom of religion, subject to limitations which are prescribed by law, intended to achieve a legitimate objective, and ‘necessary in a democratic society’ – see . The regulations clearly qualified as law, and clearly the removal of unjust discrimination against homosexual persons is a legitimate objective. But was it “necessary” to do so by requiring religious believers to support a message completely at odds with their fundamental beliefs?
Indeed, her Honour was taken to a Canadian case where an Ontario court had held that a printer who was required to undertake printing for a same sex support group, would not be required to print material which was in direct conflict with his core religious beliefs. The decision in Brockie v Ontario Human Rights Commission  22 DLR (4th) 174 was clearly relevant. (Interestingly, Brockie was cited with approval by Redlich J in dissent in the Australian decision in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors  VSCA 75 (16 April 2014) at, e.g., para .For comment on this case, which raises many of the same issues as being discussed here, see my earlier paper.)
However, Brockie was rejected as being applicable here- see . Partly this came back to the view that the bakers had not been required to “support, promote or endorse any viewpoint”- see . With respect, this again seems wrong. While can perhaps understand a view that says that providing a wedding cake is not to “endorse” the marriage (although even this seems dubious), it needs to be remembered here that this was not a wedding cake. The sole purpose of the cake as requested was to bear a message of support for the institution of “gay marriage”. While of course it would also be eaten, there is no doubt that Ashers would have been more than happy to provide a cake simply to be eaten. But what they were asked to do, contrary to their fundamental beliefs, was to create an artistic creation carrying this message. There was no attempt here to undertake a process of “balancing”, or to consider the harm of acting against conscience with the harm of having to go down the road to another baker.
It may be recalled that other courts have been willing to find differently in similar cases. I have in previous posts referred to an Australian decision holding that it is possible to distinguish between sexual orientation on the one hand, and behaviour motivated by that orientation on the other; and to a recent US decision on almost identical facts to the Asher case (save that a T-shirt is not a cake) where the court ruled that religious freedom protection applied when asked to support a homosexual lifestyle. It is to be hoped that if the decision in Lee v Ashers goes on appeal some of these other matters may lead to a different decision.
It may be thought that decisions are simply minor issues. Clearly they are not minor for those who have been caught up in them, either facing fines or large amounts in legal fees to defend their right to not only live, but to conduct business in accordance with their deepest life commitments. And in a broader sense they raise important questions about whether those who differ from the current moral orthodoxy will be allowed to operate in the public sphere at all. As a recent press report notes, in some cases even where a service is provided, the mere fact that the business operator simply does not approve of the wedding ceremony will be enough to generate outrage. The law ought to be clear- in a plural society, we have to accept that some others in the community will disagree with our lifestyle choices, and where they do us no other harm, to allow them to do so.
My previous post mentioned that some books used in Special Religious Education (SRE) in NSW had been summarily banned by the Department of Education and Communities, apparently on the grounds that they conveyed classical Christian teaching about sexual morality. In that post I said:
It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be.
One of those hopes has been realised, but the other has not. On 19 May 2015 the Minister for Education wrote to the Anglican Archbishop of Sydney to advise that there was no longer any ban on “two books, and their accompanying student handbooks, namely, You: An Introduction by Dr Michael Jensen and A Sneaking Suspicion by Dr John Dickson”. The minister confirmed that the third book mentioned in the previous Departmental email, Dr Patricia Weerakoon’s Teen Sex by the Book was not on the list of reading for SRE. (The letter indicated that this book may have been used in some government schools outside Sydney; I have seen no independent confirmation that this is so, but of course it is not impossible.)
The process issue
My first hope was that the Department would realise that the process that was followed in this “book banning” was entirely unacceptable. The Minister in his letter “regrets” the lack of prior consultation and assures the Archbishop that “if similar concerns are raised in the future it will immediately discuss the matter with SRE providers as a first step”. That is something, although it would have been perhaps more appropriate if there had been a frank acknowledgement that this was clearly wrong. As it is arguable that what was done was completely outside the lawful authority of the Department mere “regret” seems fairly weak.
The content issues
My second hope, that the Department would clearly resile from the view that these books were harmful in some way, has not been fulfilled at all. The closest we come to understanding why on earth these books were a concern is as follows:
the original memorandum was issued by the DEC on advice that there was a potential risk to students in the delivery of this material, if not taught sensitively and in an age appropriate manner.
This language seems to conceal more than it reveals. What sort of “risk”?
While so far the Department has not seen fit to enlighten us about the risk, some hints may be obtained from a post by one of those who strongly supported the ban. A member of the Greens political party who supported the original ban has posted a document which, if it is not the very one that was used to persuade the Department, seems likely to be similar. The complaints about the material include that they contain “negative views about abortion”, “outdated and sexist female headship views” (I assume the intention was to refer to Biblical views about male headship), and of course that dangerous proposition that sexual relationships are meant to be reserved for marriage:
The lessons reinforce that love is only between a man and woman and that men and women are designed to perfectly complement each other. This sends a message that anything other than a heterosexual relationship within the bounds of marriage is wrong.
The document also includes without comment an article entitled “Thank God for the Gift of Cancer”, which was intended to be used as a discussion starter with senior students. No doubt it is challenging to read, but equally there are no doubt many books accessible in high school libraries dealing with illness and death. There are then comments labelled as “homophobic” such as the suggestion that the Gay and Lesbian Mardi Gras is “promoting sexual selfishness, triviality and unfaithfulness”.
There is then the following sequence of non sequiturs:
This lesson is designed to instruct the student that sex outside marriage is wrong according to God, teaches as fact that extramarital sex is bad and sex within marriage is sublime.
Purity culture is one in which young people – particularly young girls and young women – are expected to remain sexually chaste until marriage.
Abstinence only sex education is linked to higher teen pregnancy rates and higher STD rates.
The first statement seems unobjectionable as a summary of Christian morality; the second defines a modern term “purity culture”, which as far as can be seen is not used in the book in question; and the third makes the massive (and totally unjustified) leap to suggesting that the book somehow is suggesting a program of “abstinence only sex education”. Whatever the detriments of the latter as a general way of educating teenagers about sex, that is not what this book is about. It is not a “sex education” book; it is a book which discusses aspects of life from a Christian perspective, and accurately reports the Biblical view of sexual morality among a large number of other topics.
Finally, the summary somehow turns a passing allusion to Genesis 34 and the incident of the rape of Dinah into a comment “equating rape with sexual promiscuity and shame”. Just to be clear, the chapter concerned records a dreadful incident of rape, but does not in any way suggest it was produced by Dinah’s “sexual promiscuity”.
I have noted these allegations in some detail in order to illuminate the chasm that seems to be emerging between some views of modern Western morality and traditional Christian beliefs. The books being attacked here are not at the fringes of Christianity, they are squarely in the mainstream of Biblical thought. The views being attacked are central to the Christian faith. Yet they now being characterised as “harmful”.
Even if many now think those views are wrong, why is it necessary to prevent them being taught by representatives of a religious group which has legislative permission to provide religious education, to young people whose parents are willing for them to have such education? Values of both freedom of religion and freedom of speech count in favour of an ongoing dialogue on these issues, instead of an attitude which enforces one “acceptable” line and treats young people, who are exposed to a huge range of competing views through the media and the internet, as too fragile to be told that the Bible’s teachings differ from those of their general community.
How many remember that in the late 60’s and early 70’s Australia was shaken by controversy as a radical book for students, “The Little Red Schoolbook“, was distributed by left wing activists to high school students? It presented a view of sexual behaviour which was at odds with the majority community consensus. But many on the left loudly supported the circulation of the book, in line with principles of free speech and free thought. The tables seem to have almost completely turned. Views of “free love” and sexual liberation outside marriage are now the current orthodoxy, while books that support chastity and sex within long-term committed marriage are now the ones under attack. Students are entitled to hear points of view at odds with the majority culture. Rather than the heavy-handed enforcement of majoritarian sexual orthodoxy, why not allow other views to be heard and evaluated?
Australia is a country with a wide range of views on religious and other matters. It doesn’t seem unreasonable for religious groups to be able to teach the children of those who want them taught, the views of those religions.
There has been quite some concern in Christian circles in my home State of NSW over the last few days, over bureaucratic action to “ban” some books from being used in Special Religious Education classes. While events are still unfolding (the relevant Department has so far made no general public comment on the matter, which seems to be promised for the coming week), it seems worthwhile to set some of this dispute in legal context.
Schools and the Separation of Church and State in Australia
Perhaps it is best to start off with the background in NSW, and in Australia, on the question of the relationship between “church and state”. That is because many even in Australia have the impression that all Western countries have erected a high “wall of separation” between the two spheres, getting that impression from US TV shows and comments from the US on the internet.
The fact is that even in the United States the theory that there is this high wall (said to be mandated by the First Amendment to the US Constitution, which says that “Congress shall make no law respecting an establishment of religion”) has been seriously challenged by many scholars. Still, the effect of the “establishment clause” in the US has been felt in decisions holding that there can be no public prayer offered in public schools, for example.
But, while s 116 of the Commonwealth of Australia Constitution seems at first glance to be similar, there are a number of important differences between the way that the Australian provision has been interpreted by the courts here, and the reading of the US First Amendment offered in that country.
Section 116 provides, on this issue:
The Commonwealth shall not make any law for establishing any religion..
The history of interpretation of the provision makes it clear that, unlike the US, this is not a prohibition on State, as opposed to Federal, action (so in theory a State is free to even “establish” its own religion, although in fact such a decision would not be politically acceptable today.) In addition, the important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.
The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools. This has been regarded as the settled meaning of the term for many years, which is presumably why, for example, when the “school chaplaincy” scheme was challenged in the High Court over the last few years, those making the challenge did not even attempt to argue that the “establishment” clause was breached by the Government providing funding to private religious organisations to allow the placement of “chaplains” in Government schools. (The cases challenging the scheme, Williams v Commonwealth  HCA 23, (2012) 86 ALJR 713 and Williams v Commonwealth of Australia (No 2)  HCA 23, were successful in that they led to the Court declaring the schemes invalid as then constituted. But the invalidity was on the grounds of the direct funding arrangements that had been adopted, not on a breach of s 116, despite some inaccurate press reports of the decisions.)
(It is of course possible that in the future the High Court might give a slightly broader reading of Australia’s “establishment clause”. Those with an interest in the academic issues can see some very interesting analysis and suggestions along these lines in some recent articles:
- Barker, Renae “A Critical Analysis of Religious Aspects of the Australian Chaplaincy Cases” (2015) 4 Ox. J Law Religion 26-53
- Beck, Luke “Dead Dogs? Towards a Less Restrictive Interpretation of the Establishment Clause: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)” (April 18, 2013), available at SSRN: http://ssrn.com/abstract=2253260
- Beck, Luke “THE ESTABLISHMENT CLAUSE OF THE AUSTRALIAN CONSTITUTION: THREE PROPOSITIONS AND A CASE STUDY” (2014) 35 Adelaide Law Review 225-250
- Mortensen, R “The Establishment Clause: A Search for Meaning” (2014) 33 Uni of Qld Law Jnl 109-129
But unless and until some change happens, the view summarised here is the current interpretation.)
Banning books in “Scripture” classes in schools
So we come to “Scripture” in schools, the popular name for what is formally designated “Special Religious Education” or “SRE”. For some years the law of NSW has required that a small amount of time be set aside each week in public schools for SRE. It is a voluntary system, in that parents are free to remove their children from the classes if they so choose. It is not meant to be general information about the concept of religion and “world religions”- that is “General Religious Education”, to be provided by the ordinary class-room teacher. (Under s 30 of the Education Act 1990 that is classified as part of the “secular education” which is to be provided by the schools.) But s 32 of the Act allows representatives of various religions to come into the schools and provide religious instruction from their own faith perspective, to children whose parents are willing to allow this.
32 Special religious education
(1) In every government school, time is to be allowed for the religious education of children of any religious persuasion, but the total number of hours so allowed in a year is not to exceed, for each child, the number of school weeks in the year.
(2) The religious education to be given to children of any religious persuasion is to be given by a member of the clergy or other religious teacher of that persuasion authorised by the religious body to which the member of the clergy or other religious teacher belongs.
(3) The religious education to be given is in every case to be the religious education authorised by the religious body to which the member of the clergy or other religious teacher belongs.
(4) The times at which religious education is to be given to children of a particular religious persuasion are to be fixed by agreement between the principal of the school and the local member of the clergy or other religious teacher of that persuasion.
(5) Children attending a religious education class are to be separated from other children at the school while the class is held.
(6) If the relevant member of the clergy or other religious teacher fails to attend the school at the appointed time, the children are to be appropriately cared for at the school during the period set aside for religious education.
In general, SRE has been an accepted part of life in NSW schools for many years. But recently there have been voices expressing opposition. One development saw complaints by parents who withdrew children from SRE classes, that they were not doing useful work. The suggestion was made that there should be an alternative class offered in Ethics, from a non-religious perspective. This has been happening, authorised by s 33A of the Act, where it is “reasonably practicable” to offer the alternative class. (This will usually depend on there being motivated and qualified local volunteers willing to take the classes.)
But a more recent development has seen a campaign to remove SRE from public schools altogether. It seems these latest events are part of this campaign.
A press report of Wednesday May 6 suggested that a textbook being used in SRE promoted the messages of “sexual abstinence outside a “lifelong relationship” and the doctrine of male headship and female submission.” That a Christian organisation should want to present standard features of Christian doctrine which have arguably been there in the Bible for millennia seems to have been a surprise to some of those quoted. The book which was most strongly challenged was one called Teen Sex by the Book, produced by Patricia Weerakoon, a highly qualified Christian sex expert and lecturer on the topic at the University of Sydney. This book was not, in fact, actually on the official reading list for SRE classes. It was published by the same organisation that published the SRE materials, but it was not an SRE text. Yet the article misleadingly suggested, if it did not quite state, that it was part of the formal curriculum. A representative of a lobby group was quoted:
“We call on the (DEC) to remove all of these materials from schools immediately and conduct a parliamentary review into how this damaging curriculum was able to become available to SRE teachers,” she said.
Few who read the article would have predicted how alarmingly quickly this call was to be heeded by an apparently compliant Department of Education and Communities, the body responsible for schools. On Thursday May 7 it was reported that SRE teachers arriving at schools to teach their classes were abruptly informed by local school principals that the Department had sent around a warning about three books: one of them the Teen Sex book, and two others: You, by Michael Jensen, and A Sneaking Suspicion, by John Dickson. Both of these authors are currently serving Anglican rectors but also well-known Christian authors. (Actually there was some confusion as to whether the books themselves were to be “banned”, or the study guides which accompanied the books, but the intention seems to have been to ban both.) It is still as I write not precisely clear why the two latter books were targeted, although the most obvious reason is that they formed the basis for some of the courses taught to high school students, and generally supported Christian morality on sex.
This sudden censorship was, frankly, astonishing. As far as can be determined from the authors concerned, and from the body administering SRE on behalf of the Anglican church in Sydney, there had been no consultation or discussion on the matter. An extract from one of the emails received by the schools says that:
The letter then continued:
It seems likely that this action was contrary to the way that the SRE system was meant to work. As noted above, s 32(3) of the Act specifies that it is the religious education provider which is to determine the content of what is offered in these classes. The Department’s internal policy says:
NSW DEC Religious Education Policy
§1.3 Curriculum for general religious education is provided as part of the Board of Studies NSW syllabuses.
Curriculum for special religious education is developed and implemented by approved providers.
Another Departmental document indicates:
Responsibilities of providers
It is the responsibility of an approved provider to:
• authorise the materials and pedagogy used by special religious education teachers
• provide an annual assurance to the NSW Department of Education and Communities that authorised teachers are only using materials and pedagogy authorised by the provider
• make lesson content accessible on a website or at least provide a program outline and curriculum scope and sequence documents
In other words, the content of lessons and how they are taught are meant to be the responsibility of the SRE provider, not the Department! It can hardly be supposed that with all these responsibilities carefully set out, the intention of Parliament, or even of the Department, was to allow a single bureaucrat to decide without warning to “ban” the use of certain texts in response to a one-sided press report, with no consultation. Yet this seems to be what has happened.
It is to be hoped that on review the Department will realise both that the way this was done is entirely unacceptable, and also that the content of the books concerned is not as harmful as it has been alleged to be. While one can perhaps imagine that a prescribed text which urged, for example, believers to immediately wage war on, and kill, unbelievers, could be the subject of such urgent action, it beggars belief that matters of Christian morality which have been taught for millennia could overnight have become so immediately harmful that they had to be withdrawn without due process and opportunity for explanation.
Even if this odd decision is rescinded, the very fact that someone in the bureaucracy could contemplate that this was a lawful action says much about the change in perception of issues of morality in recent years. As I have already noted elsewhere, we have gone in a short space of time from the church and its teaching on appropriate sexual relationships being thought merely “old-fashioned”, to these views being painted by many as positively evil. Hopefully the very extreme action that was taken here will cause many in the community to reflect on the merits of these issues once again.
An important recent decision of the Court of Appeal in England and Wales, Sharpe v The Bishop of Worcester  EWCA Civ 399 (30 April 2015) deals with the issue of the “employment status” of members of the clergy. Is a rector, or a priest, or a pastor, or an imam, an “employee”? If so, who exactly is their employer: the local congregation? the governing board of the congregation? a bishop? the local diocese? These are important issues which are mentioned in the case.The question may be important for a number of reasons: for example, for the rights of members of the clergy who believe they have been wrongly dismissed, or the rights of members of the public to take an action against the church or religious body, which may depend on the whether the cleric is an “employee” or not.
The answer offered in England will not be precisely the same as the answer in Australia, but there are many similarities. In this note I will deal with the situation of Christian ministers primarily, although the same issues can be raised in relation to other religions.
In most situations where the question of whether or not someone is an employee has to be resolved, the standard Australian common law tests will provide the answer as to whether someone is an employee or not: ie the “control” test, the Stevens v Brodribb (1986) 160 CLR 16 indicia as supplemented by some of the considerations discussed in more recent cases such as Hollis v Vabu (2001) 207 CLR 21. However, the situation of clergy is unusual and warrants more detailed comment.
In the main Australian recent case in this area, Ermogenous v Greek Orthodox Community of SA Inc  HCA 8; 209 CLR 95 the majority judgment pointed out that even within the broad Christian tradition, practices and terminology may differ vastly:
 No assumption can or should be made that the organisation or institutions of the church and community in and with which the appellant worked in Australia was necessarily similar to the organisation or institutions of the churches of the western or Latin tradition. To take a seemingly small example noted by the Industrial Magistrate, the witnesses before him spoke of the “consecration” of priests but the “ordination” of bishops, reversing the customary usages of the western or Latin tradition. This is no more than one example of the error that may be made if there is an unthinking application of the practices of one tradition to another. Especially is that so if the questions concern the structures of church governance, the relationship between clergy and laity, or the relationship between the community and whatever may be the group or institution that is identified by that community as the “church”.
The difference there referred to was that between the “Western” branch of Christianity (which, until the Reformation owed allegiance to the Pope, the Bishop of Rome) and other “Eastern” versions such as the Greek Orthodox Church, which was being discussed in that case.
The decision in Ermogenous provides an excellent overview of this whole area for Australia, and we may take the different categories discussed there as a guide to some of the different options for legal recognition of the status of clergy. Broadly speaking, the position of a minister of a church may be seen as (1) not governed by legal principles at all, as purely “spiritual”; (2) governed by law but as a public law “office” rather than as a contract; (3) established as a contract but under the category of “independent contractor”; or (4) set up as an employment contract.
(1) The relationship may be purely “spiritual” and not intended to create legal relations
In some circumstances the courts in the past have concluded that the role of the minister in charge of a local congregation is simply not intended by either party to create obligations that are enforceable by the “secular” legal system at all.
Most of these cases have come not come from the “established” church in the UK; as we will see cases involving the Church of England or the Church of Scotland raise slightly different issues and are usually regarded as at least “legal”. But there are cases where the courts have found that the “spiritual” nature of the duties concerned mean that (on the classic contractual analysis) there was no “intention to create legal relations” include, for example, President of the Methodist Conference v Parfitt  1 QB 368, Rogers v Booth  2 All ER 751, and Davies v Presbyterian Church of Wales  1 WLR 323.
These decisions were followed in NSW in Reverend Howard Ian Knowles and The Anglican Property Trust, Diocese of Bathurst  NSWIRComm 157 (22 April 1999), holding that a minister of the Anglican church was employed on a “spiritual basis”.
A number of decisions to similar effect are cited by the High Court majority in Ermogenous at , as relied on by the Full Court of the Supreme Court of SA in its decision. The facts of Ermogenous are that Archbishop Ermogenous had been engaged (to use a neutral word) by the Greek Orthodox Community of SA Inc (an incorporated association) to undertake a range of duties, which included acting as Archbishop of the Greek Orthodox Church in SA, conducting religious services and carrying out other clerical duties. Having been removed from his position in 1994 after working in it since 1970, he claimed that he ought to have been paid annual leave and long service leave owed to him as an employee of the Association.
The Industrial Magistrate at first instance found in favour of the Archbishop, and a judge of the Industrial Relations Court of South Australia upheld this decision. But on appeal to the Full Court of the Supreme Court of SA, the decision was overturned on the basis that there was a long-standing “presumption” that a church and clergyman did not have “intention to create legal relations” under contract law.
The decision of the High Court was that in general it was no longer appropriate to rely on such a presumption (or indeed on other “presumptions” relating to “intention” in this area), and hence that the matter had to be sent back to the Full Court for further consideration of the actual intention of the parties in the relevant circumstances. There were a number of features of the case pointing to the parties all believing that legal obligations were involved, including PAYE deductions and reference to the Archbishop’s “salary”. (See below where we discuss the difference between “salary” and “stipend”.)
The Court also noted that the Association had a high degree of control over the decisions of the Archbishop, even those of a “spiritual” nature- see . Hence the need to revisit the question. In the end, having looked at the matter again, the Full Court on remittal from the High Court held that there was no sufficient reason to overturn the decision of the Industrial Magistrate at first instance, and hence the outcome of the litigation was that the Archbishop indeed was an employee of the Association- see Greek Orthodox Community of SA Inc v Ermogenous  SASC 384 (26 November 2002). Still, as Doyle CJ said, the facts of the particular case were fairly unusual, and it would not be appropriate at all to conclude that henceforth all clergy in Australia were employees.
The issue of whether the contract between the appellant and the respondent is one of employment is not an issue that warrants the grant of leave to appeal. The issue involves the application of well established principles. Although well established, their application to particular circumstances can give rise to difficulty. If anything, that is a reason for caution in granting leave to appeal to raise such a point. Admittedly, the circumstances to which those principles are to be applied in the present case are out of the ordinary. But, to my mind, no general principle will be established in this case for cases involving a contractual relationship between a minister of religion and a church or an entity that in some way retains a minister to exercise his or her ministry. Each case will turn on its own facts, and the most that can be determined in this case is the correct application of the relevant principles to the facts of this case. And, for what it is worth, I think it likely that cases involving the key elements of this case are unlikely to occur at all often. In short, a grant of leave to appeal will involve a close examination of the application of established principles to particular facts, and will not lead to the establishment of any relevant or helpful general principle. That in itself is a reason not to grant leave to appeal, or to rescind leave to appeal. (emphasis added)
In cases where churches, and sometimes other institutions, have been concerned not to signal an employment relationship, sometimes the word “stipend” has been used instead of salary. The word has been regarded as implying a regular payment made for support that does not involve an obligation of “obedience” to orders of the person paying. One of the features of the relationship between a minister and the congregation in which they are placed, of course, is that it is unlike a traditional employment situation, since on most views of the matter, the minister is supposed to provide “spiritual leadership” of some sort, and not just take the orders of the members of the congregation. So, to take an example from the New Testament, see Hebrews 13:17:
Obey your leaders and submit to them, for they are keeping watch over your souls, as those who will have to give an account. Let them do this with joy and not with groaning, for that would be of no advantage to you.
The view that congregational leaders or elders are to be respected and submitted to, of course, does not preclude the view that they ought to receive some money so that they can devote their time to the ministry (see eg Paul writing in 1 Corinthians 9:1-14.)
So the result of Ermogenous seems to be that in Australia, at any rate, it will not normally be assumed that a clergyman simply has a “spiritual” and not legal relationship with the body that engages him or her, or controls their work. Hence it is interesting to see that Mason P in Trustees of the Roman Catholic Church v Ellis  NSWCA 117 said:
 …[It is not] necessary to decide whether a priest in the Roman Catholic Church who is appointed to a Parish is an employee in the eye of the law or otherwise in a relationship apt to generate vicarious liability in his superior.
 Patten AJ observed (at ) that Lepore alone would not prevent the Trustees being directly and vicariously liable for a failure to institute and maintain proper systems and controls. I am prepared to proceed on a similar basis, although I would express it slightly differently so as to allow for the argument ventilated in this Court about a limited reading and application of Lepore. I shall therefore assume that there is factually and legally an arguable case that Father Duggan’s superiors in the 1970s (including the Archbishop of the day) might on some basis be vicariously accountable for his intentional torts. I shall also assume that members of the Church hierarchy (including the former Archbishop) who were responsible for Father Duggan’s appointment and supervision and for processing complaints of misconduct would arguably have been personally accountable in law for their alleged neglect. See generally Stauffer and Hyde, “The Sins of the Fathers: Vicarious Liability of Churches” (1993) 25 Ottawa Law Rev 561. It is wrong to see holding an ecclesiastical office as necessarily incompatible with a legal relationship capable of giving rise to some incidents of an employment relationship (see generally Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Percy v Board of National Mission of the Church of Scotland  UKHL 73;  2 AC 28).
However, in the circumstances of Ellis it was not the previous Archbishop who was being sued, it was the current Archbishop, who had no connection with the priest at the time; and the Property Trust had no control over the priest’s actions and was clearly not his employer. So while this carefully worded paragraph leaves open the possibility of “some incidents of an employment relationship”, it by no means decides that priests all work under contracts of employment (or, indeed, under contracts at all.) And these concessions did not lead to liability of the Archbishop or the Property Trust in Ellis’s case. (For more comment on church liability for child abuse, see my previous post on this topic.)
The view that some ministers may have a purely “spiritual” and not “legal” relationship with their church is, however, supported by the a decision involving Methodist ministers in the UK, The President of the Methodist Conference v Preston  UKSC 29 (15 May 2013). Some brief background in previous decisions is necessary, however, before we come to Preston itself. The case is part of a trio of top-level decisions in the UK concerning the employment of clergy, two of which involved the Methodist Church and one the Church of Scotland.
In President of the Methodist Conference v Parfitt  1 QB 368, the first decision, involving the Methodist Church (a “non-established” Protestant denomination having its origins in the ministry of John Wesley), the House of Lords held the minister concerned was not an employee. Reasons differed but at least one of the significant factors was the “spiritual” character of the work.
In Percy v Board of National Mission of the Church of Scotland  2 AC 28 the plaintiff was an “associate minister” of the Church of Scotland (which is something like the “established” church in Scotland, and corresponds to what in Australia we would call the Presbyterian Church), and wanted to bring a sex discrimination claim under the relevant legislation. The legislation did not hinge on the standard “employee” criterion- it was a bit broader, referring to someone who “contracted personally to execute any work or labour”, and so the decision could be confined to that specific phrase. Nevertheless, the House of Lords reviewed the history of the employment status of clergy and explicitly held that there should be no “presumption” that a minister held a non-contractual position; that each case needed to be resolved by a careful review of the specific arrangements. In Ms Percy’s case the details of her job offer and other conditions meant that it was a contractual arrangement.
Finally, then, in Preston, the issue of Methodist ministers came up again. The Supreme Court did not directly depart from Percy, but it has to be said that the feel of the decision is quite different. The majority (Lady Hale dissented) looked carefully at the various documents and arrangements under which Ms Preston had been appointed as a Methodist minister in charge of a local church, and concluded that when viewed together they did not show a contract had been entered into. A candidate for the ministry had to be ordained by a Session of the church and was then “stationed” where the Church needed them to operate. Formally they could be sent anywhere they were required, the Church not needing their consent to the posting. They could not resign their “connexion” at will, needing permission of a central Church body. Their ordination was to a “life-long presbyteral ministry of word, sacrament and pastoral responsibility”- see .
The comments at  reflect the difference between “salary” and “stipend” noted above:
Section 80 of the standing orders provides for the “support and maintenance” of ministers. Under standing order 801, all ministers in active work and all stationed probationers are entitled to a stipend throughout their ministry, including periods of unlimited duration when they may be unable to perform their duties on account of illness or injury. In addition, they are entitled under standing order 803 to a manse to serve as a home and as a base for their ministry. Neither the stipend nor the manse are regarded by the Methodist Church as the consideration for the services of its ministers. They regard them as a method of providing the material support to the minister without which he or she could not serve God. In the Church’s view, the sale of a minister’s services in a labour market would be objectionable, as being incompatible with the spiritual character of their ministry. (emphasis added)
As noted previously, Lady Hale dissented. It has to be said, I think, that it is more likely that her Ladyship’s view would be followed in an Australian court, than that of the majority. As she notes, while it can be conceded that the work of a minister is of a “spiritual” nature, that is not inconsistent with there being legal relationships in place- eg see . She also notes that it would be unthinkable that if a minister were denied payment of his or her stipend at all, or were threatened for no reason with eviction from their “manse” (church provided accommodation), that the courts would not come up with a legal remedy. While Lord Sumption (for the plurality) at  dismissed this argument as irrelevant to the present case, suggesting that probably some remedy would be found in the law of trusts, I think her Ladyship is correct to say that the existence of legal remedies in this area do point to a contractual basis for the arrangement.
So, in sum, the argument that clergy enjoy only a “spiritual” and not a legal basis of engagement may be supported in some cases; though it seems a bit hard to believe that an Australian court today would, in light of the comments in Ermogenous, rule the same way except in a very unusual situation.
(2) The position may be an “office” subject to public law, not private law obligations
Another possibility is that a clergyman might be viewed as the holder of an “office”. Lord Sumption probably provides the best recent overview of this concept in Preston at :
[The] distinction between an office and an employment… is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder. But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates  2 Ch 563. The position of other ministers was taken to be analogous. In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister “is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.” In Diocese of Southwark v Coker  ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee. They held that his duties were derived from his priestly status and not from any contract. Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment.
In general it seems unlikely that cases in Australia would be decided on this “public law” basis, as neither the Anglican Church nor any other church is “established” in the sense that the Church of England is. Interestingly the High Court in Ermogenous did seem to use the word “office” in perhaps a more generic sense in the following comments:
 In the present case, any conclusion that the appellant was appointed to an office, let alone an ecclesiastical office, would depend upon the conclusions that are to be reached, first about who it was that appointed or engaged him, and secondly, about what was the entity or organisation within which the “office” existed. Both of those issues require consideration of the structures of the organisation in which the office is said to exist. In the Curates Case and in Paul those issues were readily resolved – by reference, in the former case, to the structures of a church by law established and, in the latter, by reference to the internal rules of the church under which the authority of an assistant minister derived from the licence given to him by the presbytery concerned. By contrast, the question for decision in the present matter required examination of whether “the church” was to be regarded as separate from the respondent and whether the appellant was appointed to an office identified and regulated only by the internal rules of that “church”. It should go without saying that those matters of church structure and governance may very well differ in the present case from those that exist in other churches and communities and that there can, therefore, be no automatic translation of what was decided in the Curates Case or Paul to the present. Whether a conclusion that the appellant had been appointed to an ecclesiastical office would preclude a conclusion that he served in that office under a contract of employment is a question we need not explore.
The final suggestion, that even in some sense a minister held an “office” under the internal rules of an organisation, that would not prevent the minister from being employed under a contract, seems to be the direction that the courts generally are leaning. Even in England, in Preston, Lord Sumption in the majority commented at  that “offices and employments are not always mutually exclusive categories”.
To similar effect is the conclusion of the English Court of Appeal in JGE v The Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938 (12 July 2012). This is a decision some aspects of which I disagree with; but on the point of employment it seems to be right. The decision concludes that a Roman Catholic priest was not an employee of the local bishop- see eg:
 Although it is perhaps trite to say it, these cases appear to me to establish that the following approach should be followed:
(1) each case must be judged on its own particular facts;
(2) there is no general presumption of a lack of intent to create legal relations between the clergy and their church;
(3) a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract will be whether there is a religious belief held by the church that there is no enforceable contractual relationship;
(4) it does not follow that the holder of an ecclesiastical office cannot be employed under a contract of service.
 Applying those principles to the facts in this case, I am completely satisfied that there is no contract of service in this case: indeed there is no contract at all. The appointment of Father Baldwin by Bishop Worlock was made without any intention to create any legal relationship between them. Pursuant to their religious beliefs, their relationship was governed by the canon law, not the civil law. The appointment to the office of parish priest was truly an appointment to an ecclesiastical office and no more. Father Baldwin was not the servant nor a true employee of his bishop.
A similar outcome was held to follow in the recent case of Sharpe, mentioned above. The case involved the classic example of an “office” under English law, a “beneficed” clergyman. This meant that Rev Sharpe had not been simply appointed to his position by a resolution of the local Parish Council or decision of the Bishop; he was an “office-holder”, holding a “benefice”, which is a parish appointment under a system dating back many centuries in which a local land-holder, the “patron”, has the right to nominate a member of the clergy to the position in the parish. There is a fascinating review of the law of “advowsons” (an “advowson” was the old name for the right to nominate a clergyman to a parish) and how it has changed over the years in the judgement of Lewison LJ. He notes that:
Historically the incumbent’s income came from the glebe. Some benefices were richly endowed and gave their patrons considerable powers of patronage and advancement. In Pride and Prejudice Mr Collins fawns on Lady Catherine de Burgh because she had the gift of the living.
In the circumstances where Rev Sharp had only been appointed after nomination by the local “patron”, where he had signed no agreement with the Bishop or the Parish Council, and where most of his duties were prescribed by the law of the church rather than by agreement with anyone, the Court of Appeal held that he was not an employee, and indeed had no contract with anyone. He had legal obligations, flowing from ecclesiastical law, but no contractual obligations. Hence he was unable to rely on the provisions of unfair dismissal legislation relating to employees and “workers”, in complaining about events which led up to him being forced (as he said) to resign from his parish.
There is an excellent overview of the decision from Russell Sandberg on the Law and Religion UK blog which provides more details. He notes that the decision, while it reaffirms in the particular circumstances the unusual status of a beneficed clergyman, essentially reaffirms the approach which has developed in clergy employment cases in the UK in recent years: that there is no longer any broad “presumption” that a cleric cannot have a contract or be an employee; that the particular circumstances of each case need to be considered. He notes:
Twenty-first century cases have shown that ministers of religion can be employees: it all depends on the facts. This means that the traditional placing of ministers of religion on a list in employment law textbooks of those offices that are not usually regarded as “employees” is now questionable. Ministers of religion are now in the same position as anyone else who wants to prove employment status: they need to point to a contract of employment and, since at least Percy, it has been clear that the simple facts that they are “employed by God” or hold an ecclesiastical office would not on their own mean that they would not be found to be employees.
As we will see, this is now very close to the situation in Australia.
(3) The minister may have a contract, but not a contract of employment
The High Court of Australia in Ermogenous was very clear that a minister of religion may well operate under a contract, even if they have “spiritual” duties.
 That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract…
In the circumstances the High Court concluded that the Industrial Magistrate had been entitled to find that a contract was in place. They reserved their opinion on whether it was a “contract of employment” or not- see - although as we have noted that issue was decided in favour of the Archbishop really by default because the Full Court on referral deferred to the Industrial Magistrate’s findings of fact.
Acknowledging that it seems likely that an Australian court would find today that a minister of religion was engaged under some sort of contract where there were formal arrangements in place for salary, tax, accommodation, etc, does this mean that all ministers are employees? In my view this is by no means the case. The fundamental “indicia” of employment still start with consideration of the notion of “control”. It may seem unlikely that a congregation that a minister was meant to be leading could be said to exercise “control”. Even denominational officers in general do not exercise a great deal of supervision over their ministers. So it seems to me unlikely that most ministers of religion would be regarded as employees.
Perhaps an example of this, although it is not precisely on this point, is the fact that in Sturt v The Right Reverend Dr Brian Farran Bishop of Newcastle  NSWSC 400 (27 April 2012) Lindsay J, having referred to the cases discussed above, was not able to conclude on the evidence provided of “normal parish work” by the two priests concerned that they were employees of the Bishop. However, this was not crucial to the resolution of the case- the fact that the priests were not employees did not imply that their challenge to the disciplinary procedures could not be heard; that challenge proceeded on the basis that they had the equivalent of a “property” right in their office of priest, and hence had a sufficient interest to challenge the relevant procedures.
(4) The minister might be an employee
I said previously that I thought it unlikely that most ministers of religion would be regarded as employees. One decision of the Victorian County Court, however, goes against this view. In McDermid v Anglican Trusts Corporation for the Diocese of Gippsland & McIntyre  VCC 1406 (20 December 2012) the issue was whether a priest working in the Anglican Diocese of Gippsland could sue either his Bishop or the Church Property Trust for statutory compensation for psychological harm he claimed to have suffered due to bullying. Success depended upon him establishing that he was a “worker” under the Accident Compensation Act 1985 (Vic).
The County Court Judge, O’Neill J, reviewed the arrangements for the priest to be licensed by the local Bishop. He agreed that the Property Trust, which arranged for payment of his stipend, could not be his employer as it exercised no control whatsoever over his appointment or activities- see . His Honour also regarded as irrelevant the fact that s 12 of the Act allowed certain persons to be “deemed” to workers of a religious organisation if regulations were made. (To be frank, this alone in my view is reason to doubt the correctness of the decision. The section clearly seems to assume that at least some religious personnel will not be “workers” under the common law definition of employee. But his Honour said that it left open the option that ministers could be employees at common law.)
His Honour correctly cited Ermogenous and Percy for the proposition that clergy could be said to enter into a contractual relationship. However, having reviewed the circumstances of the appointment and the nature of the bishop’s relationship to the priest, his Honour concluded not only that there was an intention to enter a contract, but also that it was a contract of service which made the priest an employee- see eg para . I must say that it seems to be that, while formally separating the two issues of “contract” and “contract of service”, his Honour could be said to run the two issues together very closely. My view would be that this decision is probably wrong.
In particular a problem can be seen from paras  ff: if the priest was an employee, who was his employer? It was not the Property Trust who paid him; it was not the Appointments Advisory Board, which had recommended his appointment to the Bishop. It was not the Bishop’s Advisory Board, nor could it be said to be “the Diocese” or “the local parish” – these were non-existent entities, of course, as unincorporated associations (all the Anglicans in Gippsland, or all the Anglicans in the area covered by the local parish.) While his Honour explicitly said at  that it was not “a process of elimination”, the fact is that the Bishop was the only other plausible legal person once the others were discounted!
Once a blind alley like this has been reached, it might be suggested that a wrong turning was taken a few corners ago. The difficulty in identifying an employer to my mind illustrates the problems with the conclusion that the priest was an employee.
This is not to say that the view might not be reached in some cases that a minister is an employee, of course. An example from the UK is the decision of the Court of Appeal in New Testament Church of God v Stewart  ICR 282. This of course involved a non-established church officer and was hence much more amenable to a contractual analysis.
To sum up, in Australia at least it still seems likely that a cleric in charge of a local congregation will not usually be an employee. In churches where the local governing body is clearly a legal “person”, through incorporation, then if there are agreements in place it seems likely that there would be a contract, though usually not a contract of employment. In the “traditional” denominations there may still be some lack of clarity. A court would probably, however, be reluctant to conclude that obligations seriously entered into had no legal effect at all, and so would probably aim to find some entity whom it could hold responsible for carrying out duties such as payment and supervision. There will be increasing pressure in the future, no doubt, for even the major “episcopal” denominations to provide a clearly identified “legal person” who can assume responsibility for the actions of clergy.