Author: neilfoster

neilfoster

2015 in review

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog. Interesting to see how it has gone in the first year! Thanks to those who have been regular readers and referrers. I do plan to keep on posting in 2016.  All the best for the New Year!

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 24,000 times in 2015. If it were a concert at Sydney Opera House, it would take about 9 sold-out performances for that many people to see it.

Click here to see the complete report.

neilfoster

Free speech and religious freedom even for ADF members

The Federal Court has recently handed down a very important decision on free speech, with connections to religious freedom, in Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 (4 December 2015). It encouragingly reaffirms the right of Australians, including members of the Defence Force, to be able to speak their minds, even when their views are not popular.

The plaintiff, Major Bernard Gaynor, may be described as a “controversial” figure. He has a distinguished record of service in the Australian Regular Army (including time in Iraq and Afghanistan). In recent years he transferred to the Army Reserve and was promoted to Major in 2013. He has been a political candidate. He is also known for objecting to, among other things, support provided by the ADF to the Gay and Lesbian Mardis Gras, and for strong views on how Australia should deal with the threat of Islamic violent extremism.

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neilfoster

Multiculturalism and Accommodation of Religious Difference: A Colloquium

My friend and colleague Professor Rex Ahdar from the University of Otago, NZ (and one of the common law world’s leading Law and Religion scholars) is organising a colloquium on “Multiculturalism and Accommodation of Religious Difference” to be held in QUEENSTOWN, NEW ZEALAND on Wednesday, 3 February 2016. More details and the official “call for papers” can be found here. To quote the handout:

Scholars in the areas of multiculturalism, pluralism, ethnic studies, demography, religious freedom, human rights and related disciplines are cordially invited to submit an abstract (maximum of 200 words) for a paper to be given at this colloquium of experts.

There is also limited space for participants who do not wish to present a paper, but who wish, nonetheless, to contribute to the lively discussion at this unique event under the auspices of the Faculty of Law, University of Otago

Should be a great day!

neilfoster

First they came for the Catholics…

The proposed action for sexual orientation vilification against a Roman Catholic bishop for teaching what the Roman Catholic church believes about marriage, which I noted at an early stage in a previous post, is now becoming broader.

I have an opinion piece today on the issues in the online version of Eternity, “Tasmanian Anti-Discrimination Commission finds all Catholic Bishops might have a “case to answer”” (Nov 13, 2015). I had originally prepared these comments based on previous reports that the anti-discrimination claim was being made simply against Archbishop Julian Porteus, from Hobart, but I have now added a few additional remarks by way of introduction about the announcement today that the action is apparently now being taken against other Roman Catholic bishops around Australia. I encourage readers to click on the link to the Eternity article before reading the rest of this blog post.

For those who are interested in the legal background to whether a discrimination claim under one Australian State’s law can be enforced against people in another State, see Burns v Gaynor [2015] NSWCATAD 211 (14 Oct 2015), a case which raised related issues (in that it dealt with alleged “homosexual vilification” of a person who had not been named but was making a claim simply as someone of a homosexual orientation). There the NSW Civil and Administrative Tribunal held that a person who posted material on a computer in Queensland could not be held liable for a “public act” under NSW discrimination law. Similar logic would suggest that the Tasmanian law is intended to refer to conduct engaged in, in Tasmania, rather than outside that jurisdiction.

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neilfoster

Legal rights of same sex couples and married couples: an “urban myth”?

A recent article in the Sydney Morning Herald , “It’s an urban myth that same-sex couples and married heterosexuals have equal legal rights” (Nov 8, 2015; Tracey Spicer) suggests that there are large gaps between the legal rights of same sex couples and those of married couple. It reports a sad sequence of events, where one member of a same sex couple committed suicide, and in the aftermath the funeral took place at the directions of the deceased person’s parents, rather than as their partner wished. The article goes on to use this set of events as an argument for recognition of same sex marriage.

The case used in the article, however, seems on closer investigation not to make this point. The claim that equality of legal relationships is an “urban myth” proves to be wrong. The Tasmanian legislation relevant to this case means that this gentleman, as a member of a same sex couple, had prior rights as next of kin which should already have been recognised as superior to those of the deceased person’s mother, even without being formally “married”.

Tasmania has a “registration” system for relationships already. If the couple were committed to each other in a long term relationship they could, of course, already have been registered. Their situation was in that respect similar to that of a heterosexual “de facto” couple who chose not to marry. But even without registration the law would give the remaining partner important rights.

Under the Tasmanian Coroners Act 1995 s 3A a “spouse” has seniority of rights as a “next of kin” over a parent. Under that Act “spouse” means “other party to a significant relationship, within the meaning of the Relationships Act 2003″ (“RA 2003”). The RA 2003 s 4 says that a “significant relationship” can include a same sex couple, even if their relationship is not “registered” (though of course registration makes it easier to prove.)

So, what happened in this case? We don’t know from this report, which seems more concerned to make a political point than to be precise about the facts (and note at the end of the article, that the reporter’s trip to Tasmania was partly sponsored by the lobby group “Australian Marriage Equality”.) It may be that the relevant police or officials weren’t aware of the law, or it may be that this “spouse” didn’t make the situation clear. Some official may have behaved badly. But that happens all the time, sadly. As far as the law is concerned, no change in the law is needed to have given this gentleman seniority in “next of kin” arrangements.

The truth is that to call equality of general rights between same sex couples and married couples a “myth” is to denigrate the hard work done by those lobbying for protections for same sex couples over many decades. All Australian jurisdictions over the last 20 years have amended their laws to provide equality of legislative rights to same sex couples in almost all areas. The Commonwealth Parliament alone enacted a suite of such changes to over 80 laws in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth). There may be one or two minor areas where there is differential treatment in law, but this example from Tasmania does not seem to be one of them. It does not provide a convincing argument for changing the law of marriage.

neilfoster

Abortion “buffer zones”, free speech and religious freedom

Governments around Australia are showing a sudden enthusiasm for introducing restricted “zones” around clinics offering abortions, in order to prevent protestors from operating in those areas. Tasmania has introduced such legislation, in the Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9. An “access zone” under that law is 150 metres around a clinic, and within that area “prohibited behaviour” is defined as follows:

(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or

(b) a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or

(c) footpath interference in relation to terminations; or

(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person’s consent; or

(e) any other prescribed behaviour.

This is a very wide prohibition, covering not only violent or abusive behaviour (which of course would already be prohibited by the general law), but also making it unlawful to simply quietly hand out leaflets in a “protest” which can be said to be “in relation to” terminations, or indeed to wear a “protesting” T-shirt, however mild and inoffensive, while standing on the other side of the road from a clinic.

Similar legislation has also recently been enacted in the ACT, with the passage on 29 October 2015 through the Legislative Assembly of the Health (Patient Privacy) Amendment Act 2015 (ACT) (“HPPA”), although that legislation will apparently not commence for 6 months. In that case the “protected area” set out in s 86 of the amended Health Act 1993 is defined under s 86(2)(a) as 50 metres, which is at least somewhat more reasonable than the broad Tasmanian legislation. Under the HPPA amendments, however, the “prohibited behaviour” is even more extensively defined than in Tasmania:

prohibited behaviour, in a protected area around an approved medical facility, means any of the following:

(a) the harassment, hindering, intimidation, interference with, threatening or obstruction of a person, including by the capturing of visual data of the person, in the protected period that is intended to stop the person from—

(i)  entering the approved medical facility; or

(ii)  having or providing an abortion in the approved medical facility;

(b) an act that—

(i) can be seen or heard by anyone in the protected period; and

(ii) is intended to stop a person from—

(A) entering the approved medical facility; or

(B) having or providing an abortion in the approved medical facility; or

(c) a protest, by any means, in the protected period in relation to the provision of abortions in the approved medical facility.

Again, no violence or harassment in any verbal or physical sense need occur; anything that can be called a “protest”, or any “act” which is intended to discourage a person from having an abortion, is made unlawful.

Similar proposals have been mooted, though not yet enacted, in Victoria: see “Victoria to introduce buffer zones around abortion clinics“, SBS, 2 Sept 2015.

Of course the arguments in favour of protecting women who are visiting clinics to have an abortion, from undue harassment, are very powerful. Any such procedure is already incredibly stressful. If this were any other medical procedure, there would be very little reason to allow protests designed to discourage patients from attending, to take place outside medical offices . Protests could, of course, take place outside Parliament House (as proponents of these laws have urged.) This would all be persuasive if abortion were merely, as a recent editorial in the Medical Journal of Australia put it, just like “other medical procedures”. (See De Costa & Douglas, “Abortion Law in Australia: it’s time for national consistency and decriminalisation” (2 Nov 2015) 203/9 MJA 349-350, at 350).

But abortion is, with respect to those who think otherwise, not just another medical procedure. Many religious believers take the view that a human being, a person in the image of God, is present in the womb from the moment of conception. But agree with that view or not, there seems no doubt that, on purely objective biological grounds, what is present in the womb of a pregnant woman is a human life. A termination at the very least prevents that human life flourishing into a human being. However the operation is described, it is not “just another medical procedure”.

Those who wish to mount a quiet prayer vigil, or to offer counselling, outside abortion clinics do not do so, then, simply to “protest” the fact of the operation taking place, or because they believe the procedure is wrong and ought not to be carried out in the vast bulk of cases. They do so because they believe these things, but also because they believe that a human life is at stake in each procedure, and should be preserved.

Not all believers, even those who share the view that a full person is present from conception, take the view that vigils or “protests” outside abortion clinics are a wise or loving way to further the aim of stopping abortions. But some do. In general, our law places a strong value on the right of people to make public statements about their beliefs, where they are not directly attacking or threatening others. In addition, however, the law of Australia, and international law, protects religious freedom, and arguably not only the free speech rights of protestors, but also in many cases their religious freedom rights, are under threat from, or being impaired by, the “exclusion zone” laws.

I recently posted a guest blog by Professor Michael Quinlan on some of these issues, which summarised the approach in a recent US Supreme Court decision, McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014), which overturned as invalid a law forbidding protests within 35 feet of an abortion clinic. The US Supreme Court, of course, has a long history of reading the First Amendment “free speech” clause of the US Bill of Rights very broadly. I want to comment briefly here on how the laws mentioned above may be treated if challenged under Australian law.

Freedom of speech arguments

In light of the US decision, and others like it, the most obvious challenge to an Australian “protest-free zone” law would be under free speech principles. In this country, though, we do not have an explicit Constitutional free speech right. (It should be noted that in Victoria, where such a “protest-free zone” is now being proposed, there is a State-based “Charter of Rights” in the Charter of Human Rights and Responsibilities Act 2006 (Vic), section 15 of which protects “freedom of expression”. But the precise operation of this provision is still in some doubt- see, for example, the decision of the Full Court of the Federal Court in Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014)- and since the broader Federal right is applicable across the whole of Australia, that is what will be considered here. It is ironical, however, that two of the three jurisdictions which have implemented or indicated an intention to implement these “exclusion zones”, Victoria and the ACT, are the two jurisdictions in Australia which contain explicit human rights protection, including protection of freedom of expression.)

(In an earlier version of this blog post I omitted to mention that s 48 of the Victorian Charter explicitly says that nothing in the Charter affects “any law applicable to abortion”. While it seems likely that the original purpose of this provision was to avoid the Charter being used to make arguments about the “right to life” of an unborn child, it is possible that a “protest free zone” law relating to abortion clinics may be regarded as “applicable to abortion” and hence immune from challenge under the Charter. But this would not prevent the arguments made here about freedom of speech under Commonwealth law from being applicable. Thanks to Professor Quinlan for bringing this to my attention.)

While we do not have explicit Federal free speech protection in Australia, then, we do have an “implied freedom of political communication” which was discerned to be an implication of the Constitution by the High Court in a series of decisions culminating in Lange v Australian Broadcasting Corporation [1997] HCA 25;  (1997) 189 CLR 520. The most recent decision on this implied freedom is McCloy v New South Wales [2015] HCA 34 (7 October 2015), where a majority of the Court (French CJ, Kiefel, Bell and Keane JJ) spelled out the currently authoritative approach to dealing with these issues, in the following important (though lengthy) quote:

[2] …[T]he question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation[1] and Coleman v Power[2]:

A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors.”[3] It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

(1) Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.

(2) If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government[4]? This question reflects what is referred to in these reasons as “compatibility testing”.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.

(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object[5]? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision[6];

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.

Clearly there are many decisions ahead which will need to clarify the precise operation of these tests. But we can start by asking the question whether a 150 metre “exclusion zone” around abortion clinics is compatible with this implied limitation on the legislative power of Australian Parliaments (such as the Parliament of Tasmania).

  1. Does the law burden “political speech”? It seems fairly clear that it does. The topic of abortion is certainly a public policy issue of great contention in Australia, and from time to time different political parties have had different views on the issues.
  2. It seems likely that one could say that the purpose of the law is a legitimate one, in the sense that it aims to protect vulnerable citizens (women seeking terminations) from a harm they may suffer (being offended or feeling harassed in exercising a choice to have a termination). Perhaps one might raise a serious question about whether the “means adopted” to achieve this end are compatible with the “ordinary political processes” in Australia- we do not usually forbid public demonstrations because of the content of the material being communicated by the demonstrators. But let us assume for the moment that a 150 metre exclusion zone might just pass the test of a legitimate “means” of achieving an end.
  3. In the “proportionality” test, however, it seems strongly arguable that a wide zone of this sort will fail the test. Yes, the means adopted may be “suitable” in that they will presumably lessen the distress of those seeking terminations. But are the means adopted “necessary” in the sense that there is “no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom”? In order to achieve the laudable aim of protecting women from violent and harassing protestors, is it necessary to also prohibit those who may simply stand quietly handing out leaflets or praying? And in particular, is there a proper balance “between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”? A complete ban on certain speech content is usually regarded as the clearest example of an unjustified interference with free speech. In a previous decision dealing with public preaching, Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013), the High Court made it clear that a ban on such activities which was based on the content of what was said (rather than on traffic considerations, for example) would be invalid.

It should be noted in this context, then, that this is not simply a “free speech” case. Many who wish to protest or counsel outside abortion clinics do so on the basis of deeply held religious beliefs.

Freedom of Religion

Arguably this is another feature of the protests being held outside abortion clinics which should inform the decision of a court as to the nature of the “rights” being interfered with. Of course it has to be said that in the States, the restriction on Commonwealth legislation impairing the “free exercise” of religion imposed by s 116 of the Constitution is not binding. But in the ACT, as a Territory not a State, where one “protest zone” law has just been passed, it seems fairly clear that s 116 will be applicable, and may have a serious impact on the validity of such a law. (For discussion of the former doubts that were expressed as to whether s 116 was binding on the Territories, as opposed to the States, see my paper on “Religious Freedom in Australia” at p 8.)

In addition, as noted previously, both Victoria and the ACT have “Charters of Rights”, which include protection for religious freedom. And in Tasmania, the little-known s 46 of that State’s Constitution Act 1934 also provides explicit protection for religious freedom.

All of these religious freedom rights are, of course, subject to balancing with other rights. But at the very least the weight of both free speech rights, and religious freedom rights, especially when combined in a case like this, ought to give Parliaments cause to think very carefully before enacting geographically wide, and substantively broad, limitations on the rights of those citizens who believe they are not only helping pregnant women, but also saving the lives of their children, by polite offers of counselling and assistance outside clinics.

Finally, it is worth noting that this view, that wide “protest free zones” like that in Tasmania are probably constitutionally invalid, is also shared by one of the most recent other academic commentaries on the issue. Eleanor Jones, in “Implementing Protest-Free Zones around Abortion Clinics in Australia” (2014) 36 Sydney Law Review 169-184, expresses clear doubts about the validity of such laws, while apparently supporting their policy. She says:

Protests outside abortion clinics are poised to become the next example of political communication that is objectionable to a majority of Australians, but nonetheless protected from regulation by the freedom of political communication (at 170)…

the prospective constitutionality of the RHATA is uncertain (at 174)…

It is therefore unlikely that the provisions of the RHATA would survive in their entirety (at 182)…

there is little evidence to suggest that these protests are so frequent and unruly that access to abortion clinics is currently being disrupted to the extent that so wide an exclusion zone is necessary. (at 183)

It is true that Jones also suggests that a much narrower exclusion zone might be constitutionally valid (at one point she notes that the US Supreme Court has upheld as legitimate an exclusion zone of 4.5 metres – see p 171 n 16). But even this suggestion is made tentatively. There is real doubt here.

This makes the comments in this editorial from the Medical Journal of Australia, then, very misleading. In that opinion piece, noted previously, the authors, who are aiming to describe the law of Australia on the matter, state very clearly:

Constitutional law scholars generally agree that the Tasmanian provision can withstand any High Court challenge.

Their authority for this proposition? The article by Jones. I trust that the quotes provided above are enough to show that the claim that is made here is, to be frank, quite wrong. Jones casts serious doubts on the validity of the Tasmanian provision. The authors of the MJA piece also mis-state the operation of the test dealing with the implied freedom of political speech, referring to a “two-step” test, whereas the Jones article (written of course prior to McCloy but still valid on this point) notes that it is a “three stage test” (at 174).

Given these errors, it is perhaps not surprising to find others in that article, We are told that access of women to clinics is “often hindered by verbal and sometimes physical harassment”. Yet Jones, as noted above, suggests that this is not really a major problem in Australia. The editorial then asserts that attempts to curtail protests have failed because of the implied rights to freedom of political communication. No evidence is presented that this doctrine has so far been invoked in these cases, but if it had the so-called “solution” to the problem provided by the Tasmanian legislation would be useless, given that the Tasmanian Parliament, like all in Australia, are obliged to recognise this right.

In short, the enthusiasm expressed by the authors of the MJA editorial for the Tasmanian laws (an enthusiasm which, it seems fairly clear, would not be shared by all medical practitioners in Australia) is misplaced. It is to be hoped that Australian Parliaments pay much more careful attention in future to the rights of citizens who are wanting to exercise the freedoms of speech and religion our community regards as vital.

neilfoster

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.

neilfoster

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.

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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.

Background

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]

1  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 http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-9
3 See e.g. Michael Koziol, “Love Wins: World celebrates US Supreme Court decision legalising gay marriage” Sydney Morning Herald June 27, 2015: http://www.smh.com.au/world/lovewins-world-celebrates-us-supreme-court-decision-legalising-gay-marriage-20150626-ghz4tx.html#ixzz3fvplgpCm
4 Quinlan n2 above
5  McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014) (McCullum).
6  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 behaviour.in 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 http://freedomwatch.ipa.org.au/tag/exclusion-zones/. 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 http://freedomwatch.ipa.org.au/tag/exclusion-zones/
8 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” http://www.abc.net.au/news/2014-03-04/brisbane-man-charged-over-anti-abortion-protest-in-hobart/5297756?section=qld
47 “Hobart abortion clinic protest charges dropped” http://www.abc.net.au/news/2014-09-04/police-drop-charges-over-abortion-clinic-protest/5719298
48 Edith Bevan, “Anti-abortion campaigner Graeme Preston arrested again for protesting outside clinic” http://www.abc.net.au/news/2015-04-14/anti-abortion-campaigner-graeme-preston-arrested/6392214
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.

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Discrimination and Opposition to Same Sex Marriage in Tasmania

There are press reports (see also here) that the Roman Catholic Archbishop of Hobart is being sued under s 17 of Tasmania’s Anti-Discrimination Act 1998 for causing “offence” or “humiliation”. This was alleged to have been done by the Archbishop causing to be sent to Roman Catholic schools in his diocese, a booklet outlining the church views on marriage, and in particular expressing the well-known opposition of the church to the introduction of same sex marriage. A copy of the booklet, “Don’t Mess with Marriage”, can be downloaded here. It seems clear but also very respectful, and keen to condemn any ill-treatment of those with a same sex sexual orientation.

It seems hard to imagine that it was a surprise to parents sending their children to a Roman Catholic school that they would be receiving teaching on the church’s views on moral issues, especially on a matter of such great public interest in Australia at the moment. Nevertheless, a number of parental complaints were made when the booklets first came out. Complaints were made that the material was “discriminatory”. Yet, as the booklet itself points out:

Justice requires us to treat people fairly and therefore not to make arbitrary, groundless distinctions…if the union of a man and a woman is different from other unions – not the same as other unions – then justice demands that we treat that union accordingly. If marriage is an institution designed to support people of the opposite sex to be faithful to each other and to the children of their union it is not discrimination to reserve it to them.

The provision of the Tasmanian legislation being relied upon is essentially an “anti-vilification” law, presumably in its application to “sexual orientation” discrimination. It relevantly provides:

17 (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16..(c)… in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

I have written a lengthy paper analysing Australia’s anti-vilification laws as they relate to religion, and many of the comments I make there relate also to what we may call “sexual orientation vilification laws” such as s 17, as it is being used here. In particular all such laws raise serious issues as to how they protect the important value of free speech, while balancing this with the right of persons in protected categories not to be the subject of “hate speech”. One of the cases I discussed in that paper was a decision from the Supreme Court of Canada, Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (27 Feb 2013), dealing with sexual orientation vilification. As I noted, in that decision the Supreme Court upheld a provincial law dealing with “hate speech”, but as part of its decision the Court struck down the sections of the law that targeted the mere causing of “offence”, as contrary to the Canadian Charter right of free speech. To be precise, the Court agreed that the prohibition on “exposing someone to hatred” was valid under the Canadian Charter of Rights and Freedoms, but ruled that the words “ridicules, belittles or otherwise affronts the dignity of” were invalid and should be struck out.

I also noted in that paper decisions of the High Court of Australia which also strongly upheld the value of free speech, and noted that a provision penalising “offence” could be contrary to the implied freedom of political speech under the Australian Constitution- see in particular the decision in Monis v The Queen [2013] HCA 4 (27 February 2013), where, while there was a division within the court over how the legislation in question should be read, all members agreed that the bar for “offence” should not be set too low.

To come to this Tasmanian case, it seems clearly arguable that s 17, in preventing the mere causing of “offence” or “insult”, goes too far in restricting free speech, certainly insofar as it relates to political issues. As Hayne J said in the Monis decision:

[222] The conclusion that eliminating the giving of offence, even serious offence, is not a legitimate object or end is supported by reference to the way in which the general law operates and has developed over time. The general law both operates and has developed recognising that human behaviour does not accommodate the regulation, let alone the prohibition, of conduct giving offence. Almost any human interaction carries with it the opportunity for and the risk of giving offence, sometimes serious offence, to another. Sometimes giving offence is deliberate. Often it is thoughtless. Sometimes it is wholly unintended. Any general attempt to preclude one person giving any offence to another would be doomed to fail and, by failing, bring the law into disrepute. Because giving and taking offence can happen in so many different ways and in so many different circumstances, it is not evident that any social advantage is gained by attempting to prevent the giving of offence by one person to another unless some other societal value, such as prevention of violence, is implicated.

There seems little doubt that comments on whether same sex marriage should be adopted, or not, are matters of a “political” nature in current Australian society. So even if the suggestion that the definition of marriage should not be changed, causes offence to some, it may be doubted that a law which prohibits such speech on that ground alone would be valid. The constitutional implied freedom of political communication, of course, applies both to State laws as well as to Commonwealth laws, as it is an implication arising from the general structure of the Constitution which establishes both the Commonwealth and the States.

One might have thought that the prohibition of speech on such matters as these by a church leader would also amount to a restriction of religious freedom. It is true that s 116 of the Commonwealth Constitution does not limit the power of State Parliaments (see my earlier post on the general structure of religious freedom protection in Australia for elaboration of this point.) Indeed, it is interesting that a recent decision of the Tasmanian Anti-Discrimination Tribunal, Williams v Threewisemonkeys and Durston [2015] TASADT 4 (30 June 2015), dealing precisely with a sexual orientation vilification claim under s 17, makes this point in response to a self-represented litigant’s claim of religious freedom.

However, unusually for Australian State Constitutions, the Tasmanian Constitution Act 1934 contains a religious freedom protection provision, in s 46

 (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Sadly this provision is, so far as I am aware, untested in the courts. I am not even sure whether it should be read as over-riding “ordinary” Tasmanian legislation, as one would usually expect in a provision of a Constitution. However, it may provide another reason to suppose that the Tasmanian Parliament may not have intended, by enactment of s 17, to prohibit the free expression of the Roman Catholic Archbishop’s belief, which of course would be a part of his (or the church’s) “profession and practice of religion”.

If there is, as seems suggested at the moment, to be a plebiscite on the question of recognition of same sex marriage, it is to be hoped that respectful public debate can be carried out without a polite statement of one side of the case being “shut down” as offensive or insulting simply because it makes a case which some disagree with. In any event it seems likely that Australia’s Constitution protects robust political debate on these matters.