Author: neilfoster

neilfoster

Unfair Gig Economy? Unexpected Generosity – Newcastle City Legal Breakfast event

You may have come across some shocking examples of worker exploitation in Australia’s “gig economy”, but you’ve probably never heard of an employer’s unexpected generosity causing resentment amongst their workers. Come along to Newcastle City Legal on Wed 3 Dec to hear Dave Moore reflect on how Jesus’ picture of the promised Kingdom of Heaven turns our expectations upside down!

If you are in or around Newcastle, join us at our next Newcastle City Legal event. This will be a breakfast seminar, run by the Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, Wednesday 3 December, 7:30 am- 8:30 am, in room X703, Nuspace Building, University of Newcastle, Cnr Hunter St and Auckland St, Newcastle. More details and registration here. Charge is $5 (and free coffee), or $10 for pastries with coffee. Everyone is welcome to come: lawyers, law students, or those just interested in the intersections between law and the Bible!

neilfoster

Aged Care, VAD, Religious Freedom and s 109

Should a religious aged care provider be able to operate in accordance with its religious convictions? This issue is being debated in NSW at the moment in the context of the law allowing “voluntary assisted dying”. The Voluntary Assisted Dying Act 2022 (NSW) allows persons with a terminal illness to choose death, which can be self-administered or administered by a health professional. Many health professionals have religious convictions which mean that they find the procedures for persons to choose death morally unacceptable. They do not wish to be involved in the process.

Under the legislation there is a right for individual health professionals to conscientiously object to the procedures, and to decline to be involved: see sections 9, 21 and 32. Faith-based hospitals may also decline to be involved in VAD procedures. However, at the moment faith-based aged care facilities are obliged to allow medical practitioners onto their premises to administer VAD.

A Private Member’s Bill has been introduced into the NSW Parliament which will amend the Act to allow faith-based residential aged care facilities the same choice as that available to faith-based hospitals, to decline to be involved in VAD or to decline to allow VAD to be administered on their premises. The Voluntary Assisted Dying Amendment (Residential Facilities) Bill 2025 is due to be debated soon.

In this comment, rather than deal with other policy issues as such, I want to address the claim that has been put forward that these amendments would be inoperative because they would bring about a clash with Commonwealth law. A legal opinion has been made available, prepared by Arthur Moses SC and Dr Patrick Keyzer, which asserts that the amending Act would be invalid due to the operation of s 109 of the Commonwealth Constitution (“the VAD Opinion”). In my view this is not correct. Whatever other reasons there may be for opposing the amending Bill, s 109 does not provide a good reason to do so.

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neilfoster

Australian Journal of Law and Religion- vol 6

The latest volume of the Australian Journal of Law and Religion has been published (and is freely available online here.) The Table of Contents is below- always worth reading!

Contents– Volume 6, 2025

Editorial                                                                                                                                  i

Articles

Modelling the Anchor and Range of State-Religion Relationships in Australia and Italy: Towards a New Understanding of State-Religion Typologies Renae Barker & Tania Pagotto                      1

Skilful Navigators or Guerrilla Subversives? Accommodating Colleges of Islamic Higher Education in the West Salim Farrar                           27

Maximising or Determining Rights? On Using (and Discarding) Statutory Exceptions Joel Harrison                          50

A Legal Education ‘Born From the Heart of the Church’: Reflections of a Catholic Law School Dean Michael Quinlan                     66

Comments

Australia’s Culture of Death: Rejecting the ‘Sanctity of Life’ Principle Gabriël Moens                        80

The Australian Catholic University and Challenges after the 7 October Hamas Massacre Suzanne D. Rutland                87

Book Reviews

Religious Liberty in a Polarized Age by Thomas C. Berg  Jeremy Patrick                        89

The Crisis of Civil Law: What the Bible Teaches about Law and What It Means Today by Benjamin B. Saunders David VanDrunen                   92

neilfoster

Pronouns, employment and religious schools

Recent press reports (such as this one from the Guardian) say that an employed teacher at a Victorian Roman Catholic school has taken action against the school for “gender identity” discrimination. The school apparently has refused to allow the teacher, Myka Sanders, who identifies as “non-binary”, to use “Mx” as a title (instead of the usual “Mr”). The school has referred to the teacher as “he” rather than using “they” as a preferred pronoun.

The complication in the action is that it seems that the school, Sacred Heart Girls College in Oakleigh, Melbourne, run by Melbourne Archdiocese Catholic Schools (MACS), has raised the fact that the Commonwealth law on this issue of “gender identity discrimination”, would allow the school to operate in accordance with its religious ethos and affirm their view that there are only 2 genders (corresponding to biological sex). So the case has the potential to require the courts hearing the matter to address the question (not so far resolved) whether an organisation can rely on a religious freedom right granted by Commonwealth law, if that right is not recognised by State law. I will explain here why I think this argument made by MACS is correct and any action against the school should fail.

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neilfoster

Recent cases on transgender vilification

I am presenting some material on vilification laws, and this paper deals with some recent cases on “transgender vilification”: Blanch v Smith (Local Court of NSW; 26 Aug 2025) and Dennis v Smith (Local Court of NSW, 26 Aug 2025). The paper can be downloaded below. It supplements material presented in a previous paper linked here.

Recent decisions involving TG vilificationDownload
neilfoster

Religious Liberty conference at Uni of Notre Dame, Sydney

 The University of Notre Dame Australia School of Law and Business will hold its 11th Annual Religious Liberty Lecture on Thursday 11th September 2025 – 5:30pm for 6pm, at St Benedict’s Hall, 104 Broadway, Chippendale, Sydney. A full day Annual Religious Liberty Conference will follow on Friday 12th September 2025 from 9am. 

More details and registration information can be seen in this flyer:

ND6263_Religious Liberty Lecture and Conference_July2025_FA (1)wit addressDownload

While the official RSVP date has passed, the organisers assure me they would still welcome registrations! I will be speaking on the vilification and hate speech issues, and there will be a number of other important papers presented on the day.

neilfoster

Freedom for Faith conference

Freedom for Faith is holding its annual conference on religious freedom and the law on September 27th, and is offering a student ticket discount. There is a great line-up of speakers- do come along!

The conference will be held on Saturday September 27th, 10am-3:30pm, at Village Church Annandale (Sydney) and the Student price: is $45 .

Speakers include Prof Patrick Parkinson and Ass Prof Alex Deagon – both of whom will be launching books – as well as Monica Doumit, the head of public affairs for the Catholic Archdiocese of Sydney. 

There will also be a conversation between Julian Leeser MP, the Federal Liberal Member for Berowra and Shadow Attorney General, and Dr Hugh McDermott, the NSW Labor Member for Prospect and Parliamentary Secretary (Assistant Minister) to the NSW Attorney General. 

Ticket includes lunch and unlimited coffee from the in-house coffee cart.

More information and tickets at: https://fff.org.au/f25 .

neilfoster

The Snail in the Bottle and the Good Samaritan

As mentioned recently, I was invited to address a group of Christian lawyers and law students on a key tort case, the famous “snail in the bottle” case of Donoghue v Stevenson [1932] AC 562, and its connections to the Biblical parable of the Good Samaritan. The paper I presented can be downloaded here:

THE PAISLEY SNAIL- for blogDownload

One further comment: in the second half of the paper I address the question that Jesus was asked before telling the story of the Good Samaritan: “What must I do to inherit eternal life”? I was interested to see that the President of the United States seemed to be addressing this question recently in terms of a hope for heaven. For those interested in the answer to the question, I recommend not only my paper, but also this excellent recent comment by my friend Murray Campbell: “Will Donald Trump be welcomed into heaven?” (22 Aug 2025). Spoiler alert: President Trump may have the wrong approach! But Jesus can provide the answer.

neilfoster

Pathways to Justice conference

I will be one of a number of speakers at a conference to be held next month entitled “Pathways to Justice for Survivors of Institutional Child Abuse”. The conference will be held on Sept 19-20 at the University of Technology, in Sydney- more details here. To be clear, it is not a specific “law and religion” event, and many speakers will not come from a faith-based perspective.

Of course institutional child abuse did not only take place in churches and religious institutions. But the great tragedy is that some did happen in those contexts, and churches and religious bodies need to be aware of appropriate legal responses, as well as changes to practices and pastoral care for victims. My presentation will discuss the possible development of an area of civil liability called “non-delegable duty”, whereby churches (and other bodies) may be held civilly liable for abuse committed by those who were caring for children while working for the body, even if the perpetrators were not employees (which would include most ministers of religion.)

Many of the papers will be from a fairly technical legal perspective, but for those interested this may provide an opportunity to find out how the law is responding to these issues. And as a presenter, I have been offered a discount code for registration which is available to readers of this blog! Using the code below will provide a 10% discount from registration up to the end of August.

FAVRAZJT
Simply visit our website and enter this code during checkout to receive the discount.
Register Now with Discount
Website: pathways.openlaw.com.au

neilfoster

THE PAISLEY SNAIL- WHO IS MY NEIGHBOUR?

The classic formulation of the duty of care by Lord Atkin in Donoghue v Stevenson includes a reference to Jesus’ famous parable of the Good Samaritan. Lord Atkin wrote: ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply’. That’s the case in the legal realm. But what about in the rest of life? Can we so restrict Jesus’ words?

If you are in or around Newcastle, join us at our next Newcastle City Legal where I will be reflecting on this famous story that Jesus told, its impact on the law of negligence, and what it means for us today. This will be a breakfast seminar, run by the Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, Wednesday 20 August, 7:30 am- 8:30 am, in room X703, Nuspace Building, University of Newcastle, Cnr Hunter St and Auckland St, Newcastle. More details and registration here. Charge is $5 (and free coffee), or $10 for pastries with coffee. Everyone is welcome to come: lawyers, law students, or those just interested in the law and the Bible!