Freedom of religion

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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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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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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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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Successful religious discrimination claim in foster-carer case

Just before Christmas, a significant religious discrimination decision was handed down in the Western Australian State Administrative Tribunal. In HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117 (23 December 2022), the Tribunal held that Mr and Mrs Hordyk had been indirectly discriminated against on the ground of their religious beliefs, when told by Wanslea Family Services that they were not suitable to be appointed as foster carers for children between 0 and 5 years. Their rejection came after they told Wanslea that as Christians who took the Bible seriously, “in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted” (from para [4]). Wanslea then terminated the process for assessment, and marked their application “assessed to not meet competencies”. The Tribunal found that these actions amounted to unlawful discrimination, and ordered payment of a modest award of damages ($3000 each) and removal of the annotation on the file. The decision is an important affirmation of rights of religious freedom.

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ALRC inquiry into Religious Educational Institutions and Anti-Discrimination Laws

The Commonwealth Attorney-General has announced that the Australian Law Reform Commission will be conducting an inquiry into the general area of “Religious Educational Institutions and Anti-Discrimination Laws”. Detailed information about the inquiry can be seen at their home page.

Readers may recall that the ALRC had previously been given a wider inquiry by the former government: the web-page notes that

The Terms of Reference replace a previous Inquiry into religious exemptions in anti-discrimination legislation that has been on hold since March 2020.

This new inquiry, while narrower in terms of being limited to religious educational institutions, comes with a number of assumptions that some may find problematic:

The Terms of Reference describe the Government’s commitments as ensuring ‘that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

  • must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
  • must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
  • can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’.

The Commission has indicated that it will have regard to submissions made to the previous inquiry, but that it also “will undertake further consultations”. Organisations and individuals who are interested in making submissions to the inquiry (when public submissions are called for) can “subscribe” to email updates from the ALRC here. Given that the inquiry has quite a tight timeline (it is due to report on 21 April 2023) I suspect that submissions may need to be put together fairly quickly over the Christmas/New Year period.

Update

The ALRC has now released a consultation timetable (which can be seen here) which indicates that they will be releasing a discussion paper for general comments on 27 January 2023, to which responses need to be provided by 24 February 2023.

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Newcastle Breakfast event for lawyers- Nov 30

For lawyers (and law students) who are interested in Law and Religion issues and are (or will be) in Newcastle on Wednesday Nov 30, our local lawyer’s Christian fellowship, in partnership with Sydney-based organisation Third Space, are running a breakfast seminar (7:30-8:30) on the topic “Wisdom for Good Government”.

The description of the topic and the speaker are as follows:

The governmental response to Covid-19 has precipitated (virtually unprecedented?) debate within Australian society about the proper reach of our authorities. The legitimacy or otherwise of ‘civil disobedience’ to legislative mandates has been hotly debated. How are we to chart a course through these choppy waters?

We are very pleased to have David Robertson as our speaker:

David Robertson is an experienced presenter and debater on the place of the Christian faith in the public sphere, a prolific blogger at The Wee Flea and he was the minister at St Peter’s Free Church in Dundee, Scotland for 27 years. David joined City Bible Forum in 2019 to lead a new initiative called Third Space. Whilst continuing to speak at City Legal, David also works with churches, seeking to help them communicate the good news in a world that desperately needs it.

The event will be held in room x-704 in the University of Newcastle city campus (“Nuspace”), on the corner of Hunter and Auckland Streets in the Newcastle CBD. Full details and a link to register can be found here: https://thirdspace.org.au/civicrm/event/info?id=2878&reset=1 . You can order some breakfast as well!

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Football CEO dismissed for religious beliefs

The recently appointed new CEO of the Essendon Football Club in Victoria, Andrew Thorburn, has been pushed out of his job on account of views expressed by the church he belongs to and on whose board of management he sits. Those views, which even the club itself accepts were not stated personally by Mr Thorburn and which had to be found by scouring a database of sermons back to 2013, represent views on moral issues that have been shared by Christians, Muslims, Jews and many other religious believers for a long time. They are not “radical” or “hateful” or “bigoted”. It is arguable that the Club has breached Victorian anti-discrimination law.

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