Sometimes a powerful visual image is what is needed to shock us into action. But can an image be so powerful and horrifying that it becomes “obscene” and hence unlawful to use in public? That, it seems, is now the view being taken in Victoria of a particular type of image: pictures of unborn babies who have been killed. While the decision of a Victorian court, it may be followed elsewhere in Australia.
Abortion of course is an incredibly difficult topic to discuss. Those who see it as the termination of human lives are determined to get this message across as clearly as possible. Views will differ, as to whether using visual images of terminated unborn children is an appropriate or helpful way of furthering the discussion.But should those who firmly believe that this is one of the only ways to get their message across, be punished by the law for public obscenity? That is the import of the recent decision of a judge of the Victorian Supreme Court, Emerton J, in Fraser v County Court of Victoria & Anor  VSC 83 (21 March 2017).
The debate on same sex marriage in Australia, and the debate on whether we can have a debate, took some interesting turns in the last week. I have a comment on Mercatornet where I discuss how beer and bibles led to questions about what can be said and who can say it: see “Beer, Bibles and free speech in Australia” .
Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor  FCAFC 41 (8 March 2017) is, No, not without having their service terminated.
I mentioned the earlier decision of a single judge of the Federal Court in these proceedings in a previous post over a year ago: see Free speech and religious freedom even for ADF members (Dec 10, 2015). In that earlier decision Buchanan J ruled that Major Bernard Gaynor’s termination was unlawful, because in applying the relevant regulations the Chief of the Defence Force had breached the implied “freedom of political communication” under the Commonwealth Constitution. Now the Full Court of the Federal Court (Perram, Mortimer & Gleeson JJ) has overturned that previous decision and upheld the termination. The decision and the way that the “freedom of political communication” is dealt with have disturbing possible consequences for free speech in Australia on controversial political topics, many of which are raised these days by religious beliefs which run contrary to “orthodox” opinions in society at large.
In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns  NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.
While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.
When our children were watching Sesame Street one of the regular clips featured the song “one of these things is not like the others“, training children to look carefully and make distinctions where things are different. In a case involving Bert and Ernie from Sesame Street, the Northern Ireland Court of Appeal has shown that it is not very good at making distinctions between things that are different.
The case is Lee v McArthur, McArthur & Ashers Baking Co Ltd  NICA (24 October 2016). (Thanks to the always helpful Law and Religion UK blog for the link to the official report. There is an “official summary” available here which is a bit shorter.) In the decision the Court of Appeal equates the decision of Christian bakers not to supply a cake, the sole purpose of which was to bear a message which they disagreed with on religious grounds, with a decision of a business to discriminate against persons on the grounds of their sexual orientation. In my view they have confused things which are quite different to each other.
I was privileged today to present a paper on issues from a Christian perspective raised by the possible introduction of same sex marriage, at a seminar on the topic held at the Lower Mountains Anglican Parish centre at Glenbrook. For those who are interested (and the paper is of particular relevance to Christians, so others may not find it so helpful), the longish paper can be downloaded from the seminar website here. I understand there may be a video of the presentations available at a later stage on the same website. The other speaker I was honoured to share the platform with was Dr Peter Jensen, who gave a terrific overview of marriage as a social phenomenon and the Bible’s view of marriage.
The second development I want to briefly note today is a decision of the Victorian Civil and Administrative Tribunal, Sisalem v The Herald & Weekly Times Ltd  VCAT 1197 (19 July 2016). This is an important and helpful decision, in my opinion, supporting free speech on religiously related issues.