Author: neilfoster

neilfoster

How I wish that God would speak!

The Newcastle Lawyers’ Christian fellowship is running another of our breakfast meetings for lawyers (and other interested folk!) in Newcastle, on Wednesday 14 June 2023, from 7:30-8:30 am.  Our venue will once again be the Moot Court with-the-best-views-of-a-harbour (aka Room X-703) in the NuSpace Building, the University of Newcastle (corner of Hunter St and Auckland St). We are glad to welcome David Robertson back to speak about what the ancient Hebrew Book of Job can tell us about wanting God to speak in the midst of suffering.

No matter what our occupation or where we’re from, we’re all familiar with suffering. The enigmatic 3,000 year old man Job & his story of suffering must rank as one of the most gut-wrenching, eye-watering tales in the great catalogue of human misery down the centuries. Join Newcastle City Legal presenter David Robertson as he brings this ancient story to life – and shows us the surprising comfort it offers.

More information is available here, where you can also register. Cost is $5 (which includes a coffee) or $10 for pastries for breakfast.

I should also mention that I will be speaking at the upcoming City Legal National Conference in Canberra on 24-25 August, on ‘The Ethics of Freedom: Religious Freedom in the Workplace’. This Seminar is one of the 2 CPD points on offer at the Conference in the areas of Ethics & Professional Responsibility along with Practice Management & Business Skills. See Conference Brochure here. There will also be great speakers like Max Jeganathan, John Bales, Dan Anderson & Wilbur Longbottom. More details and Conference Rego are available here.

neilfoster

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 

Articles 

May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster Nicholas Butler 1 

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 1984? Patrick 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.

neilfoster

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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neilfoster

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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Law & Religion Junior Faculty Conference- UND, Chicago, Oct 2023

Academics who are working in the Law & Religion area may be interested in this upcoming conference at the University of Notre Dame in Chicago, especially those who are in the first decade of their academic career. I am informed that offers of papers will be considered even from those based outside the US. Here are the details:

Notre Dame Law School in Chicago
Notre Dame Law School in Chicago

The University of Notre Dame Law School’s Religious Liberty Initiative invites junior faculty to submit abstracts of works in progress to be considered for presentation at a Law & Religion Junior Faculty Conferenceto be held at Notre Dame Law School’s Chicago Campus October 27-28, 2023.

We are looking for submissions of proposed articles that will make significant contributions in the field of law and religion. If your paper is selected, you will receive a $1,500 honorarium + travel costs, and dedicated commentary on your paper from a distinguished scholar in this field. You also commit that you will have a working draft circulated at least one month before the Conference. For more information and to submit a 500-word abstract of your proposed article by April 28th, 2023, visit our website. If you already have a working draft of your article, you may also submit that with your abstract for consideration during the selection process. 

Qualifications: Submissions are limited to unpublished papers by junior faculty, meaning tenure-track law faculty who have been teaching for no more than 10 years. Aspiring scholars who have not yet obtained their first tenure-track appointments, including teaching or other fellows and visiting assistant professors, are also welcome to submit papers for consideration.

  • Submissions may not have been accepted for publication by a journal, and the article must remain substantively revisable (for purposes of incorporating changes resulting from conference feedback).
  • There is a limit of one submission per person.
  • Co-authored pieces will be accepted only if both authors are junior faculty members. Any honorarium awarded on the basis of a co-authored piece must be shared.

Selection: Submissions will be competitively selected by a jury of distinguished scholars in the field of law and religion. 

Reach out to Stephanie Barclay at stephanie.barclay@nd.edu with any additional questions.

neilfoster

A Human Rights Charter for Australia? A Guest Blog Post.

Recently the Australian Human Rights Commission has issued a Position Paper entitled A Human Rights Act for Australia . I have often commented here on the gaps in protection for religious freedom under Australian federal law, and one suggestion that has sometimes been made is that Australia should implement internationally recognised rights such as those contained in art 18 of the International Covenant on Civil and Political Rights. But is doing this by way of a federal Human Rights Charter the right way to go?

I asked one of Australia’s leading commentators on international human rights issues, Dr Paul Taylor, to offer some preliminary comments on the proposals that have been put forward. 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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neilfoster

Zombie Jesus? City Legal Newcastle, April 5

Easter is coming, when Christians celebrate what seems like an amazing claim: that Jesus Christ rose from the dead! Is this just a first century Zombie story, or is it grounded in historical events? The Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, invite those who want to consider this claim to come to a breakfast meeting on Wednesday April 5, 7:30-8:30 am, at NuSpace (the city campus of Newcastle Uni, corner of Hunter St and Auckland St), room x-703.

Does it really matter whether Jesus rose from the dead? And just how much weight can be placed on the evidentiary material in the New Testament? Join us at our second-ever Newcastle City Legal as David Robertson returns to answer these (and other!) questions.

More information here, and registration is open now! 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 questions!

neilfoster

Is declining to print a Pride poster unlawful?

Press reports today record that a local franchisee of company “Kwik Kopy” declined a request to print posters for an event associated with the “World Pride” events happening in Sydney at the moment- see this report from Nine News. The World Pride events are in effect an extension of the Sydney “Gay and Lesbian Mardi Gras” parade which has been running for many years, although extended over 17 days. Their website refers to it as “a glittering celebration for the global LGBTQIA+ community”. 

But, of course, not everyone is on board with an event celebrating sexual activity outside heterosexual marriage. Mr Wing Khong, a Christian man who runs the Sydney CBD franchise of Kwik Kopy, declined to accept an order from Skater Leo Bunch, who emailed to ask for a quote to print “roller derby” flyers with a World Pride theme. Mr Khong commented:

“There was no offence meant. Everyone is entitled is to their own position. I don’t believe it was discrimination, rather I was just obeying the Word of God.” 

The news report linked above contains video comments from the reporter and also Anna Brown, from Equality Australia, that Mr Khong’s action was “clearly unlawful”. With respect, I beg to differ, and would like to explain why.

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neilfoster

Removing fences: the ALRC Consultation Paper on Religious Educational Institutions and Discrimination Laws

The Australian Law Reform Commission has now released a Consultation Paper for its current reference on “Religious Educational Institutions and Anti-Discrimination Laws”. The paper, while formally acknowledging the importance of religious freedom and parental rights, will be a serious disappointment to those involved in religious schools and colleges. It effectively recommends the removal of protections enjoyed by religious educational institutions which have been designed to safeguard the ability of these organisations to operate in accordance with their religious beliefs. The “fences” protecting these bodies from being forced to conform to majority views on sexual behaviour and identity (and hence losing their distinctiveness as religious bodies) are to be knocked down, the ALRC says. But the paper offers no convincing reasons for this wholesale demolition of a structure which has served the diversity and plurality of the Australian community for many years. Rather than supporting “Diversity, Equity and Inclusion”, the paper’s recommendations would require a compulsory uniformity which would undermine the reasons for the existence of faith-based educational institutions.

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