Prayer groups, schools and “radicalisation”

The NSW Government is understandably concerned at what appear to be revelations of violent Islamic-State inspired teaching in public schools. The October 2 shooting of police employee Curtis Cheng at the hands of a 15-year-old schoolboy, Farad Jabar, while shouting Islamic slogans and having just visited the Parramatta mosque, has shocked the public. Other pupils from the same school, Arthur Phillip High School, are under suspicion. Another former pupil of the same school is in custody, apparently suspected of encouraging the act.

These events have sadly seemed to confirm the concerns that were raised earlier this year when a student from another school, Epping Boys High, was being investigated for preaching violent extremism.

There can be no doubt that the Government needs to be rightly concerned about student groups where violence is being preached and encouraged. But there are serious dangers to religious freedom emerging in some of the suggested solutions being offered.

A number of recent opinion pieces suggest that “prayer groups” in general need greater monitoring. Some, such as an article by Greens member of Parliament John Kaye, are urging the Government in effect to ban all religious groups meeting in public schools:

Dr Kaye said: “If radicalisation of Moslem students is occurring in NSW public schools, it is because proselytising Christian groups have protected their right to run lunchtime religious meetings.

“The real blame lies with successive NSW governments that have failed to stand up to the push to turn public schools into recruiting grounds for aggressive religions of all types.

In short, opponents of Christian involvement in schools are exploiting the opportunities presented by violent Islamist preaching to further their agenda to attack all religions.

Hopefully the Government will be able to resist the simplistic equation presented in the form: 1. This violence is inspired by Islam. 2. Islam is a religion. 3. We should deal with the violence by banning all religion. In other words, to spell out more clearly the obvious non sequitur:

  1. A (Islam) has led to B (violence.)
  2. A is a member of the class R (religions.)
  3. Therefore all members of the class R lead to B and should be banned.

Or, to give another example:

  1. A (a music group) performs B (disco music.)
  2. A is a member of the class M, music groups.
  3. Therefore all music groups, M, perform disco music and should be banned.

As much as one might agree with proposition 3 as applied to disco groups, it clearly is not true as applied to all music groups!

Of course distinguishing between music groups requires something of a knowledge of the principles of music, and a willingness to say that some music is good, and some is bad. That may take courage in a world which is theoretically committed to the proposition that all music is the same! But we know in practice that this is just not the real world.

An article making the same point, though thankfully with no reference to disco music, was published recently by Michael Jensen. He puts it this way:

[I]n its rush to look tolerant and even-handed, the liberal commentariat has worked itself into a lather of confusion. It cannot name the thing right in front of its face. The truth is this: in contemporary Australia, it is Islam, and only Islam, that has the problem with radicalisation. Not the Sikhs, not the Jews, not the Buddhists, not the Christians, not the Greenpeace youth group that meets down the road.

That is not to say that these groups have never had a problem with radical extremism, historically. But the problem presenting us today is quite a specific one.

Of course, the numbers even within the Islamic community that are radicalised are still tiny. Picking on or vilifying Islamic Australians in retaliation for the violence committed by a small group within it is totally out of order, and likely to be counter-productive.

But by speaking in vague terms about “extremism” and “radicalisation” and introducing laws and processes to which all religious and ideological groups have to submit, we are risking the very freedoms that we are trying to preserve.

To say that any limitations must now be imposed on “Christian, Buddhist or Jedi”, as one recent opinion piece suggests, just makes no sense at all. There is a problem within the Islamic community, a problem which is now being clearly acknowledged by leaders of the community. But this problem will not be solved by forbidding all prayer by students at schools.

Such a move would be a completely disproportionate over-reaction to a problem within a specific community. Australia is a party to, and supporter of, international instruments which provide clear protection for the religious freedom of its citizens. The International Covenant on Civil and Political Rights, article 18, declares that the right to religious freedom is a fundamental human right. Religious freedom, if it means anything, means the ability to gather together with others and practice one’s religion. Of course there are sensible limits that need to be placed on this freedom where a religious gathering is suspected of encouraging religiously-inspired violence. But to introduce a blanket ban on groups of students getting together at lunchtime to discuss their faith, especially where there is no evidence except in the Islamic community that such is happening, would be a serious interference with religious faith for no good reason.

Indeed, it may in fact be doubted that even in relation to Islamic groups, a complete ban is sensible. One article reports:

the Friday prayers that were being held at Arthur Phillip High School, which Jabar had attended, had been suspended in September, a move that possibly influenced Jabar to go to the Parramatta mosque to pray.

In other words, perhaps the fact that the group was not operating meant that religious counsel was sought from other sources where worse advice was received. This is speculation, of course; but it seems reasonable to suppose that a group which is meeting at a school, perhaps with the assistance of a trusted member of the religious community and under occasional surveillance by teachers, may serve to curb some of the more violent teaching that can be found elsewhere.

Further, it seems likely that the guidelines being promulgated in NSW schools at the moment may already go further than is necessary to deal with the problems. It has been reported that schools have been told that prayer groups can only be allowed to operate under these conditions:

parental permission must be obtained, activities must be monitored, and no proselytising.

While the first two conditions are not ideal, they may be necessary in the present circumstances. But the final is odd. The word “proselytising” needs detailed discussion on its own, but what is odd is that there has been no suggestion in the concerns about “radicalisation” that the Islamic prayer groups are trying to persuade Baptists or Hindus to become Muslims, which seems to be one of the popular senses of the word. This ban seems more closely linked to a general “secularist” agenda, than to problems of possibly violent Islamic prayer groups.

On general religious freedom grounds, it is clear that in international law the right to manifest one’s religion includes a right to respectfully encourage others to agree with one’s religious beliefs. Justice Kirby put in this way in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1; (2005) 79 ALJR 1142 (26 May 2005), citing a decision of the European Court of Human Rights:

[121]…In Kokkinakis v Greece[1], that Court affirmed that religious freedom includes the freedom:

“[T]o manifest one’s religion … not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour … through ‘teaching’, failing which … ‘freedom to change [one’s] religion or belief’ … would be likely to remain a dead-letter.”

[1]      (1993) 17 EHRR 397 at 418.

The right to respectfully persuade, of course, is not a right to “ram one’s views down another’s throat”. But the danger in a prohibition on “proselytising” is that banning the second may be thought to imply banning the first. When we are addressing the question of what one school student may say to another, in discussion of their religious views, it surely is far too intrusive to suggest that there can never be a conversation which politely commends the truth of one’s views to another person.

In conclusion, there are justified concerns about the preaching of violence against non-believers among some Islamic groups (not all such groups, of course) at high schools. Energies should be directed towards those sort of groups where such discussions have led to actual violence. But nothing would be surer to generate an “underground” group, attractive because of its very “banned” nature and hence unable to be monitored or guided, than a blanket ban on prayer groups at schools. Support for religious freedom at schools, and the free and open discussion of religious issues, will send the signal to students of support for religious freedom in the community at large, and will itself be another way of undermining an ideology which seeks to impose its will by threats of violence on religious grounds.

Religious Freedom conference presentation- video available

It seems that our “Religious Freedom in a Multicultural World” went well. I certainly enjoyed the day and was very grateful for the top class speakers we had. For those who are interested, the video of my presentation on the day is now available. The paper which goes along with the talk can be downloaded here. It was entitled “How should religious marriage celebrants respond if same sex marriage is introduced in Australia?” Regular readers of this blog will notice that it combines some discussion from previous blog posts on the issue, but also adds some extra material setting the scene at the beginning.

The Legality of Exclusion Zones around abortion clinics in the US and Australia- Guest blog

US flags

I am very pleased to be able to welcome my first “guest blogger” in the person of Professor Michael Quinlan, Dean of the University of Notre Dame’s Sydney-based Law School. Michael’s note on this important issue, which is now becoming more relevant in Australia in recent years, was originally published in “On the Case”, a series of notes on legal issues produced by the UND Sydney Law School. He has kindly agreed to me re-publishing it here.

Issue 9 of On the Case discussed the recent decision of the Supreme Court of the United States (the US Supreme Court) in relation to same sex marriage in Obergefell [1] and the implications for Australia of that decision.[2] The Obergefell decision received substantial media attention in Australia [3] although the legal position in the two countries is quite different. [4]

In this edition of On the Case Professor Michael Quinlan, the Dean of The University of Notre Dame Australia, School of Law, Sydney, discusses another recent decision of the US Supreme Court, McCullen. [5] In this decision the US Supreme Court considered the legality of exclusion zones around abortion clinics. Whilst this decision did not attract media attention in Australia, as Tasmania introduced exclusion zones around abortion clinics last year [6] and other Australian States and Territories are considering doing so, [7] the approach of the US Supreme Court to this issue warrants attention.

In Brief

This decision considered the validity of a Massachusetts law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of any place where abortions are performed or offered other than a hospital. [8] The US Supreme Court found that law to be unconstitutional.


The Massachusetts law was introduced in 2007 [9] following clashes between advocates for and opponents of abortion outside abortion clinics.

The Facts

This case was brought by a number of people who engaged in “sidewalk counselling” of women approaching abortion clinics (the Counsellors). Whilst it might be appropriate to describe some people who stand outside Massachusetts abortion clinics as protestors because they use signs or chants or face-to-face confrontation to express their religious, moral or conscientious objection to abortion, this was not the approach of the Counsellors.[10] The Counsellors provided women with information about alternatives to abortion and help in taking any of those alternatives if they wished to do so. In order to provide this counselling, the Counsellors considered that it was essential for them to maintain a caring demeanour, a calm tone and direct eye contact with women entering abortion clinics.[11] The Counsellors claimed that because the exclusion zone included the public footpaths adjacent to the clinics they were not able to approach the clinics’ entrances and driveways and that this frustrated their counselling efforts.[12]

The Counsellors argued that standing outside the exclusion zone meant that they could not distinguish patients from other passers-by and that this made it difficult for them to distribute literature to arriving patients. It also meant that where they had engaged a patient in conversation they had to stop their discussions at the border of the exclusion zone. This resulted in the Counsellors often having to raise their voices to be heard by patients within the exclusion zone which was completely contrary to the message of compassion that they wished to convey. [13] The evidence was that the result of the imposition of the exclusion zone was that the Counsellors had been far less successful in informing women of alternatives to abortion and that, as a result, far fewer women had chosen those alternatives as a result of their counselling. [14] The Counsellors argued that the Massachusetts law violated the First [15] and Fourteenth [16] Amendments to the Constitution of the United States of America (the US Constitution).

The Decision

While there were three separate judgments, the Court unanimously found that the Massachusetts law violated the First Amendment.[17] The Court referred to previous decisions which had found that the First Amendment considered that public ways and footpaths were entitled to “First Amendment protection” because they had historically been important sites for debate and discussion and leafletting.[18] The Court noted that the guiding principle of the First Amendment was that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” and that that principle applied “with full force” to footpaths and public streets.[19] This meant that the government could not prevent or prefer speech because of its content.[20] This approach did not prevent the government from imposing reasonable restrictions “on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest and that they leave open ample alternative channels for communication of the information.” [21] In other words, so long as the restrictions on free speech were not content based, reasonable restrictions might not be unconstitutional. If the laws were not content based they could be constitutional but in that case, only if they did not “burden substantially more speech than is necessary to further the government’s legitimate interests.” [22] On the other hand, if the restrictions on free speech were not content neutral they could only be constitutionally valid if they could withstand “strict scrutiny.” This is a much more rigid test and requires such laws to use the “least restrictive means of achieving a compelling state interest.” [23]

The Counsellors argued that the Massachusetts law did not fit within the permissible restrictions on free speech because it went beyond what was necessary for the legitimate purposes of the State, and because it discriminated against anti-abortion speech. They argued that this discrimination was evident because the law established an exclusion zone only around abortion clinics and so would clearly primarily affect speech concerning abortion. [24] They also argued that the Massachusetts law was not content neutral because the law exempted the employees and agents of abortion clinics. They argued that, as a consequence, speech in favour of abortion could and would occur within the exclusion zone where the Counsellors were prohibited from speaking. [25]

The majority first considered whether the Massachusetts law was content based and concluded that it was not. They noted that the law did not refer to the content of any speech and so was not directed to preventing anti-abortion speech. The majority also found that the State had a legitimate interest in ensuring public safety, preventing large crowds gathering, impeding access and obstructing footpaths and that these problems would arise no matter what was said within close proximity to an abortion clinic. [26] The majority rejected the Counsellors’ argument that the Massachusetts law discriminated against free speech based on its content by providing for an exception for employees and agents of clinics who were permitted to pass in and out of the exclusion zone. This was because, they found that, the exception for employees and agents was necessary and there was no evidence that any speech in favour of abortion took place inside the exclusion zones was authorised by clinics. [27] As the majority found that the Massachusetts law was not content based it found that it was not necessary for it to be subject to strict scrutiny. [28]

Having found that the Massachusetts law was not content based and not subject to strict scrutiny [29] the majority then considered whether the law burdened substantially more speech than was necessary to further the government’s legitimate interests. [30] While the majority accepted that the State had a legitimate interest in attempting to prevent the deliberate obstruction of clinic entrances and the harassment and intimidation of patients and clinic staff, the majority noted that these concerns were addressed in other unchallenged provisions of the law [31] in addition to other criminal laws against assault, breach of the peace, trespass and vandalism. [32] The result for the majority was that the Massachusetts law did burden substantially more speech than was necessary to further the government’s legitimate interests. This was because by excluding all non-exempt individuals [33] from the buffer zones, the law unnecessarily “[swept] in innocent individuals and their speech.” [34] The law made it more difficult for people, like the Councillors, to engage in conversations at a normal proximity and volume or to hand out leaflets. The majority thus considered that the Massachusetts law unconstitutionally impeded free speech and was invalid. Targeted injunctive relief focussed on precise individuals and precise conduct at a particular clinic experiencing safety and access problems was preferable and would not breach the US Constitution. [35]

While Justices Scalia [36] and Alito agreed with the majority that the Massachusetts law offended the First Amendment they were critical of the majority’s approach because, in their view, the Massachusetts law was specifically targeted at supressing anti-abortion speech and should have been subject to the strict scrutiny test. [37] In Justice Scalia’s opinion the Massachusetts law was content based because it imposed a blanket prohibition on speech in an area where anti-abortion messages would be most effective. [38] He rejected the notion that, in these circumstances, the purpose of the legislation could properly be determined by reference to its stated objects. [39] Justice Scalia was also scathing of the majority’s approach to the exempt persons provision of the law. He had no doubt that abortion clinic employees or agents would often speak in favour of abortion and seek to counter the speech of people, like the Councillors, within the exclusion zone and that they would do so within the scope of their employment. [40] Justice Scalia found that:

Protecting people from speech that they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.[41]

The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed. I concur only in the judgment that the statute is unconstitutional under the First Amendment.

Similarly Justice Alito found that the effect of the law was to silence the Councillors and other critics of the relevant abortion clinic while the clinic remained able to authorise its employee and agents to speak in favour of the clinic and its work. 42 He described this as “blatant view point discrimination.” [43] He also found that the other features of the law meant that even if the exemption for employees and agents were excised it would not be a content neutral law. [44]

Implications of this Case

The Australian Constitution is very different to the US Constitution so that the legal issues considered in McCullen do not arise in the same way in Australia. That is because Australia does not afford freedom of speech the same level of Constitutional protection and has no equivalent to the First Amendment. The approach taken by the US Supreme Court in this case is, however, of particular interest in Australia in light of the exclusion zone created by The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) and the proposed exclusion zones under consideration in other Australian states and Territories [45] as it raises for consideration whether it is necessary and appropriate to interfere with freedom of speech around abortion clinics at all. If policy determines that State government interference with free speech is warranted near abortion clinics, this case raises the question of the appropriate breadth and scope of such interference.

During the Tasmanian State elections in March last year a lone protestor, 58-year-old Graham Preston, was arrested after holding two placards quoting from the Universal Declaration of Human Rights and handing out leaflets while standing within the mandated exclusion zone outside an abortion clinic in central Hobart. [46] The Tasmanian Director of Public Prosecutions dropped the charges in September last year and was ordered to pay costs. Mr Preston was not re-arrested when he protested in the same way after leaving court. [47] However Mr Preston and a number of other individuals have subsequently been arrested for other alleged violations of the exclusion zone. [48]

In Australia, the State and Federal Constitutions tend to be more concerned about issues relating to trade and good governance than human rights. Section 46 of the Tasmanian Constitution is an exception. It guarantees freedom of conscience and freedom of religion and may allow protestors to raise such issues in their defence in future prosecutions. The enforcement of such exclusion zones in Australia, particularly during election campaigns, may also raise freedom of political communication issues under ss 7 and 24 of the Commonwealth Constitution. [49]

Obergefell et al v Hodges, Director, Ohio Department of Health et al 576 US ___(2015) (Obergefell)
2 Michael Quinlan, “The Supreme Court of the United States decides that all states of the United States must permit and recognise same sex marriage” On the Case: Issue 9 The University of Notre Dame Australia
3 See e.g. Michael Koziol, “Love Wins: World celebrates US Supreme Court decision legalising gay marriage” Sydney Morning Herald June 27, 2015:
4 Quinlan n2 above
McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014) (McCullum).
The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) s9(2) creates an exclusion zone with a 150 metre radius of premises where terminations are conducted .Within this zone people are prohibited from protesting and other similar relation to terminations.
7 e.g in NSW the Greens MLC, Mehreen Faruqi, has introduced into the NSW Legislative Council the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2015 which, among other things, seeks to “establish exclusion zones in order to prohibit certain behaviour near premises at which abortions are performed.” The Sex Party has introduced the Public Health and Wellbeing Amendment (Safe Access) Bill 2015 which seeks to establish exclusion zones in Victoria around abortion clinics and other locations providing advice, mediation and treatment in relation to reproductive health. In early September 2015 the Victorian government announced that it would support this legislation. The draft legislation makes it illegal to “interfere with” a footpath within 150 metres of an abortion clinic and to communicate in a manner which may be seen or heard by a person seeking to access abortion clinics or other reproductive health services. In this way conversations, prayers, providing leaflets or advertising which can be seen or heard from a clinic will be criminalised. See Monica Doumit “It’s OK to pray, but not in Victoria” The Catholic Weekly Vol 73 No 4792 13 September 2015, 11 and Morgan Begg “150 metre protest exclusion zones coming to Victoria” 1 September, 2015 Freedom of speech Similar exclusion zones have also been proposed in the Australian Capital Territory. See Morgan Begg, “Exclusion zone proposals show fundamental misunderstanding of freedom” 2 April 2015 Freedom of speech
Reproductive Health Care Facilities Act s120E1/2(a), (b) Mass.Gen Laws.
9 Amending an Act passed in 2000 10 McCullen Roberts CJ 4
11 Ibid 5
12 Ibid 19-20
13 Ibid 20
14 Eg one Counsellor’s uncontradicted evidence was that prior to 2007 about 100 women had chosen alternatives to abortion as a consequence of her counselling outside Massachusetts abortion clinics but none had done so since: ibid 20
15 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
16 Section 1.”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
17 Chief Justice Roberts delivered the Court’s opinion and Ginsburg, Breyer, Sotomayor and Kagan JJ joined in that opinion.This opinion will be referred to as “the majority opinion.” Justice Scalia filed an opinion concurring with the judgment of Robert CJ and Kennedy and Thomas JJ joined in Scalia J’s decision. Justice Alito filed a separate opinion concurring with the judgment of the Court.
18 McCullen Roberts CJ 8 referencing United States v Grace 461 US 171, 180 (1983) and 21; Scalia J 5
19 McCullen Roberts CJ 9 referencing Police Dept of Chicago v Mosley 408 US 92, 95 (1972).
20 McCullen Roberts CJ 9 referencing Erznoznik v Jacksonville 422 US 205,209 (1975).
21 McCullen Roberts CJ 9 referencing Ward v Rock Against Racism 491 US 781, 791 (1989) (Ward) (quoting Clark Community for Creative Non-Violence 468 US 288, 293 (1984).1975)
22 McCullen Roberts CJ 19 referencing Ward 799
23 McCullen Roberts CJ 10 referencing United States v Playboy Entertainment Group Inc 529 US 803, 813 (2000)
24 Brief for Petitioners 23 referenced in McCullen Roberts CJ 11
25 McCullen Roberts CJ 15
26 Ibid 13
27 ibid 17
28 Ibid 18
29 Ibid 18
30 See n22 above
31 McCullen Roberts CJ 23 referring to ch 266 s120E1/2 ( e) Mass.Gen Laws which creates a criminal offence for “[a]ny [person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.”
32 McCullen Roberts CJ 25
33 This refers to exemptions for clinic workers etc
34 McCullen Roberts CJ 25
35 ibid
36 With whom Kennedy and Thomas JJ concurred
37 McCullen Scalia J 7,13 and Alito J 1-3
38 McCullen Scalia J 5
39 Ibid 6-7
40 Ibid 10-13
41 ibid 9
42 McCullen Alito J 2
43 Ibid 2
44 Ibid 3
45 See n6 above
46 “Brisbane man charged over anti-abortion protest in Hobart”
47 “Hobart abortion clinic protest charges dropped”
48 Edith Bevan, “Anti-abortion campaigner Graeme Preston arrested again for protesting outside clinic”
49 See Nationwide New Pty Ltd v Wills (1992)177 CLR 1 per Deane and Toohey [69]-[74] and Australian Capital Television Pty Ltd v Commonwealth.Electoral Commission (2004) 220 CLR 181 per Mason CJ 137-146, Dean and Toohey JJ 217, McHugh J 227-233.