Volume 2 of Australian Journal of Law and Religion available

The second issue of the Australian Journal of Law and Religion is now available online here. There are a number of important issues covered. The Table of Contents gives an idea:

 Editorial i 


May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster Nicholas Butler

Reconciling Freedom and Equality for Peaceful Coexistence: On the Need to Reframe the Religious Exemptions in the Sex Discrimination Act Alex Deagon 20 

The Position of Religious Schools Under International Human Rights Law Mark Fowler 36 

Legislating Gender Prejudice: Religion and the Overturning of Roe v Wade Rena MacLeod 56 

Conversion Practices Legislation in Victoria – A Potential Crisis for Church Authority? Rhett Martin 70 

Statements of Belief as Political Communication Timothy Nugent 81 

Book Reviews 

Law and Religion in the Commonwealth: The Evolution of Case Law edited by Renae Barker, Paul T. Babie, and Neil Foster Barry W. Bussey 90 

The Transgender Issue: An Argument for Justice by Shon Faye Jeremy Patrick 93 

Special Topic Forum: Religious Freedom, Sexuality, and Gender Identity 

Cherry Picking Human Rights Nicholas Aroney 95 

What Does Gender Identity Mean in the Sex Discrimination Act 1984Patrick Byrne 101 

The Politics of Indonesia’s New Criminal Code Robert W. Hefner 104 

Of course each reader will have their own specific areas of interest. I was obviously very interested to see that one of the articles is a rejoinder to an article I had published in volume 1, dealing with the impact of differing discrimination laws applying to faith based schools (and other institutions) in Commonwealth and State laws (see Butler, from p 1.) Readers will have to make up their own minds as to whether Mr Butler’s critique of my position is valid or not. I was also pleased to see an encouraging review of the edited volume Law and Religion in the Commonwealth , of which I was a co-editor (see Bussey, from p 90).

I look forward to reading the other articles in due course! I very much commend the editors for their decision to make all the articles freely available for download.

Chart a better course? Guest Post on an Australian Human Rights Charter- part 2

Recently the Australian Human Rights Commission has issued a Position Paper entitled A Human Rights Act for Australia . In a previous guest post, Dr Paul Taylor provided some preliminary comments on the proposals. I am pleased to have an opportunity to provide his more recent comments.

As noted previously, Dr Taylor is an Honorary Senior Lecturer in the T.C. Beirne School of Law, a Fellow of the Centre for Public, International and Comparative Law, and an Adjunct Professor at the School of Law, The University of Notre Dame Australia. His principal academic interests are international human rights law and conflict of laws (private international law). He has held Visiting Fellowships at Wolfson College, Cambridge and at the Centre for International and Public Law, College of Law, Australian National University. He is the author of A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights’ Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020); and Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005).

Dr Taylor has provided the following comments as a guest blogger. The comments are of course written in a personal capacity, and do not reflect any views of any institution to which he is or has been affiliated.

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Liability of a bishop for abuse by clergy- on appeal

Can a bishop be held personally liable for child sexual abuse committed by a member of the clergy under their authority? The Victorian Court of Appeal has recently held that they can, in its decision in Bird v DP (a pseudonym) [2023] VSCA 66 (3 April 2023) (“the Bird appeal decision“). That decision upheld an earlier trial decision to the same effect in DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), which I commented on previously here. In that earlier comment I suggested that there were reasons to conclude that the trial judge was wrong. In this comment I will be briefly noting why I continue to hold that view, and hence conclude that the Victorian Court of Appeal is also wrong, on the specific question of what is known as “vicarious liability”.

I want to stress that, despite my view that this decision is incorrect as a matter of Australian common law on the question of vicarious liability, I fully support churches being held liable for child abuse perpetrated by clergy who have been entrusted with the care of children. As I said in my previous post, my doubt about the decision on vicarious liability:

does not mean that I think that the organised church ought to be allowed to escape liability for harm committed by clergy to children in its care. To the contrary… I think the High Court ought to revisit another area of common law which prevents many such claims at the moment. But the decision in DP is not consistent with the course of development of the law of vicarious liability and will, in my judgment, be overturned if there is an appeal on this point

Clearly I was wrong about the appeal decision in Victoria. But I still maintain that the decision may be overturned if taken to the High Court of Australia. Below I briefly explain why.

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