Freedom of religion

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Religious faith, medical procedures and minors- H v AC

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.

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The new Federal privacy tort and religious freedom

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.

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Tickle v Giggle: Sex and Gender Identity

In his decision in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (23 August 2024) Bromwich J in the Federal Court of Australia found that the company Giggle had been guilty of indirect gender identity discrimination when its director, Sall Grover (who was also sued), had removed Roxy Tickle from her women-only social media app. Roxanne Tickle (“the applicant”), as Bromwich J noted:

was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex.  This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act.. (at [3])

I commented on earlier stages of this litigation in a previous post. The question as to whether sex as a legal category is changeable, and the implications of this for discrimination law, are of great concern to many concerned with protection of traditional female-only spaces. It is a question which raises concerns for religious folk, many of whom see sex as a biological category determined at conception and ordained by God. Hence a review of the decision seems justified on this blog concerned with law and religion, although I note that none of the participants in the case professed any religious reasons for their views. The view that sex is determined by fundamental biological facts is shared by many, on both religious and scientific grounds.

In short, I think this decision is incorrect as a matter of law, and the implications of the decision are bad for society as a whole, and women in particular. I hope it will be overturned on appeal.

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Hate Speech – Vilification Laws and Threats to Religious Speech

I have presented a paper today surveying Australia laws on “hate speech” and “vilification”, as they have an impact on religious free speech. The paper can be downloaded here:

HRLA Legal Academy 2024 Foster on VilificationDownload
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Religious Freedom and the NSW Conversion Practices Ban Act 2024

I have prepared a paper exploring the operation of the NSW Conversion Practices Ban Act 2024 in relation to the freedom of churches and other religious groups to continue to provide teaching and guidance based on the tenets of their faith. The Act has received assent but will not commence operation until 3 April 2025.

Overall, the Act contains much better protections for religious freedom and the welfare of vulnerable children and young people than similar legislation elsewhere. But there are some areas where it is not clear, and it will require careful consideration by religious groups, as well those interested in so-called “gender transition” issues even from a non-religious background.

The paper can be downloaded here:

religious-freedom-and-nsw-conversion-practices-ban-act-2024Download
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Challenges to Religious Freedom: Conversion Practices law passed, ALRC report released

A brief update on two significant challenges to religious freedom which have emerged over the last few days.

First, in NSW, the Conversion Practices Ban Bill 2024 has been rushed through both Houses of Parliament, receiving final approval on Friday March 22 after an all-night debate in the Legislative Council, and is now awaiting the Royal Assent. I posted about this Bill recently. There I said:

Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

In that more detailed post I outlined the problems with the Bill. I noted that it is at least better than some others which have passed, especially the bad Victorian law. But none of the suggested amendments put forward by faith groups and the Opposition and other members were accepted by the government, which had the numbers with the Greens to push it through unchanged.

So churches and other religious groups will need to consider carefully where the line can be drawn between counselling which urges someone to live in accordance with God’s will (by not engaging in sex outside a man/woman marriage, or by living in line with one’s biological reality), and counselling which “suppresses” a person’s “sexual orientation” or “gender identity”. The Bill (soon to be an Act) will also put a thumb on the scales of advice to those wrestling with gender confusion, in favour of “affirming” treatment, when the scientific evidence is becoming increasingly clear that for young people, puberty blockers and other such treatments are not shown to be of help, and lead to massive bodily change which can usually not be reversed.

The Act, once given assent, is due to come into operation in one year.

The second concerning development is that on Wednesday 21 March the Australian Law Reform Commission released its report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws (ALRC Report 142). Far from “maximising” human rights, the report (as expected by those who spoke to some of its researchers) would have the effect, if adopted, of seriously impairing the operation of faith-based schools around Australia. In brief, it recommends removal of all of “balancing clauses” in the federal Sex Discrimination Act 1984 which currently recognise the need to balance the religious freedom of faith-based schools with rights of teachers and students not to be detrimentally treated on the basis of sexual activity or “gender identity”. In particular, this would remove (among other provisions) section 38 of that Act, which allows faith schools to operate in accordance with their religious ethos when making staffing and educational decisions.

The Prime Minister has noted that the government has not made a decision to formally accept these recommendations. He has indicated, however, that since the report was made available to the government in December, two draft pieces of legislation have been prepared (though not made publicly available). He has indicated he would like bi-partisan support from the federal Opposition. It has to be said that views on these issues seem so strongly held that this seems unlikely. But it will all depend on the wording of any proposed laws.

Australia needs to decide if it wants to offer parents the option of having their children educated in faith-based schools, or not. Many parents have signalled they want this option, by sending their children to such schools. But if those schools find that their very reason for existence, operating in accordance with a religious world-view, is taken away, it seems likely that many will decide it is not worth continuing operations. The federal government needs to listen very carefully to all sides of this debate.

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More issues with the Queensland Anti-Discrimination Bill 2024

I am happy to present a guest post today from Associate Professor Mark Fowler, raising more issues of concern from a religious freedom perspective with the recently released proposed Anti-Discrimination Bill 2024 . Dr Mark Fowler is Principal, Fowler Charity Law, Adjunct Associate Professor, University of Notre Dame, School of Law, Sydney and an External Fellow at the Centre for Public, International and Comparative Law, University of Queensland.

The concerns can be broadly grouped as follows:

  1. The Bill’s exception for employment by religious institutions would enact the most restrictive regime in Australia;
  2. The Bill will require religious institutions to provide services against their religious beliefs;
  3. The imposed ‘duty to eliminate discrimination’ will require religious institutions to proactively engage in activities that do not conform to their religious beliefs; and
  4. The Bill fails to protect religious individuals from discrimination when they engage in collaborative effort with fellow believers. 

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NSW Conversion Practices Bill- risks to religious freedom

The NSW government has introduced a Conversion Practices Ban Bill 2024 into the Parliament, with the apparent aim of moving it through very quickly. Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

But laws of this sort can in particular have significant implications for religious freedom. I have previously provided a detailed analysis of the Victorian legislation on this topic, noting the serious problems that law has created. The good news in NSW is that the government does seem to have listened to some of the concerns about the law raised by religious leaders and other concerned citizens. The Bill is certainly an improvement on the Victorian model. But there are a number of areas where it could be clearer in protecting important rights of all members of the community, to speak and act freely in accordance with their convictions and biological reality.

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Queensland – new proposed discrimination law

The Queensland government has released a draft of a proposed new discrimination law for public comment. The proposed Anti-Discrimination Bill 2024 will make some radical changes to Queensland law, and of interest here is that it will seriously impact religious freedom in that State. One of the ways that religious freedom is protected in Australia is through the inclusion in discrimination laws of “balancing clauses” (provisions that balance the right not to be discriminated against, with the important right of religious freedom). But the new Bill will dramatically narrow those clauses.

I am pleased to present a guest blog post commenting on some religious freedom impacts of the draft Bill, from Dr Alex Deagon, an Associate Professor in the School of Law at QUT, and an internationally recognised researcher in religious freedom.

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“Equality” Bill threatens religious freedom in NSW

Independent MP Mr A H Greenwich last year introduced a private member’s bill called the Equality Legislation Amendment (LGBTIQA+) Bill 2023 (“the Bill”) into the NSW Parliament. It is understood that time will be allowed for debate on the Bill on February 8, 2024. Freedom for Faith has an excellent overview of the many areas covered by the Bill and why the Bill should not proceed. Most private member’s Bills are not approved, but there is a danger that some MP’s might support some of the provisions of this Bill. In this post I will focus on some of the dangers to religious freedom in NSW if the Bill were passed. (There are so many that I may not cover them all in one post, and if I can I will try to pick up those I miss here in a later post.)

In this post I will focus on the proposed amendments to the NSW Anti-Discrimination Act 1977 (“ADA”).

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