I am presenting a paper on “Hate Speech – Vilification Laws and Threats to Freedom” this week, and a copy is available here to download for those interested. As well as comment on a number of other cases, there is some comment on the recent Wertheim v Haddad s 18C decision, and the litigation involving “Billboard Chris”.
On behalf of the organisers, I am happy once again to post (for academic, and academically inclined, readers!) a call for papers for a symposium to be held in Canberra in February 2026.
Call for Papers- 6th Annual Symposium on Jurisprudence and Theology
Date & time: 13 February 2026 9:00am – 5:00pm
Venue: ANU Law School , Australian National University in Canberra.
It is often thought that modern analytic jurisprudence has left theology behind. Think again. Consider the following quote from the Hart-land of jurisprudence:
If men are not devils, neither are they angels; and the fact that they are a mean between these two extremes is something which makes a system of mutual forbearances both necessary and possible. With angels, never tempted to harm others, rules requiring forbearances would not be necessary. With devils prepared to destroy, reckless of the cost to themselves, they would be impossible. (HLA Hart, The Concept of Law, 196)
Neither angels nor demons would have the kind of legal system that we have. Law is situated precariously between heaven and hell. This jurisprudential insight is dripping with theological speculation. It seems that jurisprudence is not done with theology yet.
This symposium – the sixth in the series – continues the conversation at the intersection of jurisprudence and theology, broadly understood. We welcome papers that explore this intersection from diverse interdisciplinary perspectives, from all faith traditions and none, and from both faculty members and postgraduate students.
Past symposia were held at the University of Notre Dame Australia (2019), the University of Sydney (2022), the University of Adelaide (2023), the University of Southern Queensland (2024), and the Queensland University of Technology (2025).
Please submit your abstracts (100-200 words) with your name and institutional affiliation to A/Prof Joshua Neoh (joshua.neoh@anu.edu.au) before 1 November 2025.
More details are to be found here: https://law.anu.edu.au/news-and-events/events/call-papers-6th-annual-symposium-jurisprudence-and-theology
Our next Newcastle City Legal seminar will explore the question: “How to be a Truly Wise Money Manager”. What would you do if you lost your job? According to a report published just before Covid, ‘a consistent trend towards greater insecurity of work overall is observable’ – and things have only got worse. Dave Moore unpacks the surprising story Jesus told of a shrewd manager facing the sack, and the way to be a truly wise money manager.
This will be a breakfast seminar, run by the Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, Wednesday 4 June, 7:30 am- 8:30 am, in room X703, Nuspace Building, University of Newcastle, Cnr Hunter St and Auckland St, Newcastle.
More information here and registration on that page 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!
A high profile decision from the UK Supreme Court this week, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025) (“FWS“), holds that the word “sex” as used in the UK anti-discrimination legislation the Equality Act 2010 (UK) (“the EA 2010”), means biological sex, and that the term does not change its meaning in relation to those who have obtained a gender recognition certificate (“GRC”) under the Gender Recognition Act 2004 (UK) (“the GRA 2004”). In the circumstances of this case, this meant that where a “quota” had been established for certain governance roles requiring 50% of non-executive members to be women, that quota could not be met by including those with an “acquired gender” of female due to their holding a GRC.
But the ramifications of the decision go far beyond the specific quota legislation. The question that the court had to address was whether references to “sex”, “women” and “men” in the EA 2010 included those who held GRC’s and had an “acquired” or “certificated” sex. After an extensive review of the general provisions of the discrimination law, the court unanimously concluded that a GRC did not have the effect of deeming someone to have changed their sex for the purposes of the EA 2010.
As they sum up near the end of the decision, at [265] item (xviii):
The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate.
As they point out, this does not remove other protections provided by the EA 2010 to transgender persons, whether or not they hold a GRC. But the ruling will have the effect that it will be possible to establish rules requiring that single-sex spaces such as changing rooms, bathrooms, and other areas designed for the use of one sex, can be reserved for those who have that biological sex and will not have to be made available to those who have the relevant sex through a GRC or claim to be of that sex on some other ground (see references to those issues in para [265] items (xiv) and (xv).)
While the decision itself does not refer to religious belief issues, the case will have important implications for religious groups whose conviction is that a person’s sex is that given at conception biologically, and cannot be later changed by other processes. (For a recent careful and scholarly analysis of the Christian perspective on these issues, see Robert S Smith, The Body God Gives (Lexham Academic, 2025), esp Part 3.) In the UK, those groups will be able to apply this view in the way that they provide services for men or women, or for girls or boys, in accordance with their faith commitments.
Of course the decision is not directly relevant to the law of Australia. But in this post I want to briefly compare the reasoning of the UK Supreme Court in its consideration of the EA 2010, with how a court in Australia might approach similar issues under Australian law, in particular in relation to the federal Sex Discrimination Act 1984 (Cth) (“SDA 1984”). Readers of this blog may recall that we have had a decision of a single judge commenting on some of these issues in the Tickle v Giggle litigation, which I previously suggested was wrongly decided. The reasoning of the Supreme Court of the UK here strongly supports my view that comments about the meaning of the category of “sex” made by the judge in that case were incorrect and should not be supported on appeal. (For an excellent overview of the FWS decision by a UK legal scholar cited by the court, see Michael Foran, “Sex has always meant biological sex“.)
The Conversion Practices Ban Act 2024 (NSW) (“the Act”) is now in force, having commenced operation on 4 April 2025. I have previously posted a paper expressing concerns about the operation of the Act in relation to religious freedom. In this post I want to re-iterate briefly some of those concerns, and comment on “guidance” on the operation of the Act provided by NSW government officials.
I commend the previous paper to readers for more details. But the following are some extracts which may help to set the scene for my comments on the NSW government guidance. Below I will be referring to the “Frequently Asked Questions” (“FAQ”) page produced by “Anti-Discrimination NSW” (ADNSW)- the version I am commenting on was dated 7 April 2025. (ADNSW is the “online identity” of the body formally known as the “Anti-Discrimination Board” established under the Anti-Discrimination Act 1977 (NSW); the President of the Board receives initial complaints under the Act- see s 14- and the Board has a number of other functions under the Act.)
With Easter fast approaching there will be the inevitable news story querying the resurrection of Jesus. Prior to Easter Sunday we’re told that the raising by Jesus of a four-day-dead man Lazarus led to the religious leaders of the day saying ‘Look how the whole world has gone after him (Jesus)!’ – largely on the testimony of Lazarus & those who had been there (John 12:17-19).
So just how much weight can be placed on the evidentiary material in the New Testament? Join us at our first Newcastle City Legal of the year as Sam Hilton unpacks the meaning of this amazing event. This will be a breakfast seminar, run by the Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, Wednesday 2 April, 7:30 am- 8:30 am, in room X703, Nuspace Building, University of Newcastle, Cnr Hunter St and Auckland St, Newcastle.
More information here, and registration on that page 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!
Recently there have been a number of legislative moves or proposals attempting to deal with issues around the area of “hate speech”. The term of course is problematic- we will try to unpack it shortly. But the context, in Australia at least, is the shocking rise in the number of anti-semitic slogans and actual violence being seen in the last few months. Insults have been daubed on buildings and cars, fires lit at buildings associated with the Jewish community. And more recently, we have the shocking spectacle of two nurses from Bankstown Hospital saying on a video which has gone all over the world, that they would either like to kill their Israeli patients, or have already done so!
Part of the response of governments, at the Federal and State level, has been to either enact or propose laws punishing “hate speech”. The term itself is ambiguous. Does it mean speech “motivated” by hate? Or speech expressing hate? Or speech encouraging others to hate? I think we can all agree that, at one end of a spectrum, speech urging commission of violence against others should be unlawful. But what about expressing disagreement with moral choices made about sexual activity? Such speech might not be motivated by hate, but by concern for the bad effects of the behaviour, including contravening of divine law. Yet it might be perceived to be “hateful” by some who hear it.
It is regularly asserted that religiously based violence is somehow connected to speech insulting people on the basis of their religion. Yet some scholars note that there is little evidence produced that this is actually the case- that there is in truth no clear causal connection between speech of this sort and the issuing of threats or perpetration of violence.
Still, let’s concede that such is possible. It may be that regular assertions about how terrible people from a certain religious background are, will “normalise” the idea that threats and violence are appropriate responses. But will laws against such speech actually reduce the threats and violence? Or will they simply result in the speech being hidden from the community before it erupts in the actual acts?
The other problem with hate speech laws, of course, is that there is a serious danger that punishing speech on religious topics will unduly impair free speech on such topics generally. In the rest of this post I want to mention three recent Australian legislative initiatives on “hate speech” and note their possible impact on religious freedom. One is a new provision of Federal law which has already commenced. Second, I will be noting some changes that have been enacted and may commence soon under NSW law. Finally, I will briefly note some concerning legislation currently before the Victorian Parliament.
Before I do so, though, let me be very clear. The right to religious freedom cannot include the right to advocate for physical violence against other members of the community, nor of course a right to actual commit such violence or issue threats of such violence. Note that I have added the word “physical” here to be clear about the sort of “violence” I am referring to. The word “violence” should not be extended in metaphorical directions to refer to “criticising someone’s moral choices” or “upsetting someone”. These matters are not appropriately dealt with by the law. But no community can tolerate physical violence or threats against other members of the community justified by religious beliefs. As we will see, some recent laws are generally in the appropriate area of preventing actual violence; others are more problematic.
One of the most difficult areas to navigate in the intersection between law and religion is the dilemma that is faced by a court when asked to adjudicate on differing opinions about medical treatment of young people, when objections to medical treatment are based on religious views. This is an area where a court, when asked to adjudicate, will have to weigh up different interests of the minor- bodily health, and being able to make decisions in accordance wth their faith.
Many such cases have arisen in based on objections to blood transfusions by Jehovah’s Witnesses. But in this post I want to note a careful decision on the issues which was handed down early last year, where the young person involved was from a “mainstream” Protestant church, and was strongly of the view that they had been healed miraculously and that no further treatment was needed. The decision was that of Meek J in the NSW Supreme Court in H v AC [2024] NSWSC 40 (2 February 2024). An important part of the case is that his Honour clearly understood and explained the religious views of the young person, “AC”, in coming to his decision.
I’m very pleased to note that the latest online issue of the Australian Journal of Law and Religion (2024, vol 5) has just become available (free to download) here. The issue contains a number of really interesting articles I am looking forward to reading- I will list the Table of Contents below. (Of course it goes without saying that I might not agree with everything said by the other authors, nor they with my views- but that is what a robust academic debate is about!)
But I hope I will be forgiven for highlighting two articles of particular interest to me. One is a book review by Jacob Carson, who is a current undergraduate law student at the University where I have the privilege to work. The other is an article that I have written, which is labelled a “surrejoinder” : “Religious Freedom, the Sex Discrimination Act, and Section 109: A Surrejoinder to Butler“. This somewhat unusual word is used when something is published as part of an ongoing academic debate.
I published an article in volume 1 of the AJLR arguing that, where Commonwealth laws provide a more generous regime for religious bodies accused of sex discrimination, than that provided by States and Territories, that the effect of s 109 of the Constitution is that the Commonwealth law will prevail over the other laws.
In volume 2 of the journal, Nicholas Butler provided a rejoinder to my article, arguing that I was wrong to suggest that the effect of s 109 of the Constitution would be that such State laws would be inoperative. In this volume I continue the debate with my “surrejoinder”, and maintain that my earlier arguments were correct. This issue continues to be significant, as increasingly laws enacted by States and Territories make it harder for faith-based organisations and educational institutions to operate in accordance with their faith commitments. In those circumstances, while the Commonwealth laws provide a reasonable balance between rights of religious freedom and rights not to be discriminated against, such bodies should, I argue, be able to rely on the protections provided by Commonwealth law.
I commend the debate to those interested. The other articles in this volume are noted below; it is good to see in particular articles published as part of a co-operative venture with a key US website which comments on religious freedom issues, “Canopy Forum”. All of the articles are available here, either as a single download of the whole issue or separately.
Alex Deagon and Jeremy Patrick, Editorial (pp. i-ii)
Articles
Brady Earley, Religious Exemptions in Ancient China (pp. 1-13)
Rosemary Teele Langford and Malcolm Anderson, Religious Charities in Australia: Implications for Governance Under Traditional Values and Outlooks (pp. 24-39)
Joseph Lee, Religious Institutions and Personal Injury Compensation Claims for Abuse: The Noteworthy Significance of Insurance (pp. 40-61)
Interviews
Hon. Michael Kirby, AC CMG, An Interview on Faith and Sexuality with Michael Kirby (pp. 62-70)
Book Reviews
Michael F Bird, Religious Freedom in a Secular Age: A Christian Case for Liberty, Equality, and Secular Government (Review by Jacob Carson) (pp. 71-73)
John Witte, Jr. and Rafael Domingo (eds.), The Oxford Handbook of Christianity and Law(Review by Alex Deagon) (pp. 74-75)
Robert F. Cochran Jr., The Servant Lawyer: Facing the Challenges of Everyday Faith in Christian Law Practice (Review by Benjamin B Saunders) (pp. 76-78)
Special Topic Forum: The Rise of the Nones (co-published with Canopy Forum)
Rhys Gower and Adam Possamai, The 2021 Australian “Mark ‘No Religion’” Campaign (pp. 79-82)
Anna Halafoff, Andrew Singleton, and Elenie Poulos, Querying “No Religion”: State, Society, and Spirituality in Australia (pp. 83-88)
Jeremy Patrick, A Brief Rejoinder to Movsesian on ‘The New Thoreaus’ (pp. 89-91)
Jesse M. Smith and Ryan T. Cragun, The Push Away from Religion and the Pull Toward Secularity: The Rise of the Nones in the United States (pp. 92-96)
In the closing Parliamentary days of 2024, the Australian Federal Parliament created a new statutory privacy tort action, which may have a significant impact on churches and other religious groups. In the context of a possible disciplinary action against someone who has behaved contrary to the principles of a religious group to which they belong, it may be necessary to inform other members of the group about the person’s behaviour. In doing so the group will be in danger of breaching a right of privacy set up by the new law. The tort action (which will probably come into operation on 11 June 2025) seems to cut across important rights of religious freedom, and the exemptions under the law do not take this into account.
In this post I aim to outline some aspects of the operation of the new law, and recommend that before it commences Parliament provide specific recognition of religious freedom as an exemption to the availability of the action. In this discussion I will specifically refer to the impact on Christian churches, but my comments will in most cases be also applicable to other religious traditions and to other organisations operating with a religious ethos.
Law, politics and culture from a Christian perspective
Professor of Law whose research interrogates the interaction between law and humanities, with particular expertise in Law and Religion and Legal History. All views my own.
Law and Religion Australia 