I am delivering a seminar paper on the topic “Churches, Same-sex ministries and the law: discrimination and religious freedom” on August 20. For those who are interested, there is a copy of the paper here:
The High Court of Australia today, in Comcare v Banerji  HCA 23 (7 August 2019), upheld as “reasonable”, and not unconstitutional, the decision of the Department of Immigration and Citizenship to dismiss an employee who had made anonymous political comments about migration matters and government policies, contrary to various codes of conduct. The case provides interesting insights into the operation of the implied constitutional freedom of political communication. Many will see similarities with the dismissal of footballer Israel Folau for comments he shared about the Bible’s view of morality, but as we will see, while somewhat factually similar, the cases raise quite different issues.
In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.
It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.
Celebrity rugby player Israel Folau is in a complicated legal position. He shared a “meme” on social media site Instagram recently, the text of which was: “Warning: Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators: Hell Awaits You- Repent! Only Jesus Saves.” To this he added his own personal comment: “Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him.” (The comment was similar to many other pictures shared on his account, many of which are Bible verses or exhortations to nominal Christians to follow Jesus Christ in deed as well as word.)
In an important decision on free speech issues, the High Court of Australia, in its decision in Clubb v Edwards; Preston v Avery  HCA 11 (10 April 2019), has upheld the validity of laws in Victoria and Tasmania prohibiting communication about abortion within 150m of an abortion clinic. The decision may have serious implications for free speech about other issues on which religious believers have deep-seated convictions contrary to the general orthodoxy of modern Australian society.
I am presenting a paper at the “Religious Freedom After Ruddock” conference being held at the University of Queensland on Saturday April 6. The paper is “Religious Free Speech After Ruddock: Implications for Blasphemy and Religious Vilification Laws”. A copy is available here:
The paper is fairly long but it deals with a number of important issues on religious free speech, and I think it has become even more relevant following the terrible events in Christchurch and calls for increased regulation of “hate speech”. I suggest that there is a role for this, but we need to be very careful to define what we mean by this phrase and not open it up too broadly by restricting legitimate debate on important issues.
In an important decision on religion and free speech in NSW, the NSW Civil and Administrative Tribunal has ruled today in Ekermawi v Nine Network Australia Pty Limited  NSWCATAD 29 (15 Feb 2019) that it is not a breach of the law in NSW to make offensive comments about a religion. However, the case involved some difficult issues of law, and while the outcome seems correct, it may foreshadow a restrictive approach to free speech in other cases in the future.