Freedom of speech

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Vilification claims based on critique of drag queens event dismissed

The Queensland Civil and Administrative Tribunal, in its decision yesterday in Valkyrie and Hill v Shelton [2023] QCAT 302 (18 August 2023), has dismissed claims of vilification based on sexual orientation or gender identity, made against conservative commentator Lyle Shelton. The careful decision of Member Gordon reveals a number of uncertainties still surround the interpretation of this and other similar laws around Australia, but finds in the end that comments critical of the participation of the complainants in a “drag queen library event for children”, did not amount to the incitement of hatred towards, serious contempt for, or severe ridicule of the complainants on the ground of their sexuality or gender identity in contravention of section 124A of the Anti-Discrimination Act 1991 (Qld). There are a number of points in the decision worth noting.

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Christian graphic designer not required to produce websites for same sex weddings

In a much anticipated decision, the US Supreme Court (by 6-3) in  303 CREATIVE LLC v. ELENIS 600 U. S. _ (2023) (30 June 2023) has ruled that a Christian graphic designer cannot be required by Colorado law to produce websites supporting and celebrating same-sex weddings, contrary to her religious beliefs. The ruling was based on the US First Amendment protection of free speech, and sets out a principle that the government cannot compel citizens to say what they object to saying, in an “expressive” business like web design, even if that business provides services to the public. It seems clearly correct, and will be helpful in protecting free speech on a range of issues, but in particular will support religious freedom. But, contrary to some comment, it is not a “license to discriminate”. The decision does not allow refusal of ordinary commercial services to same-sex attracted people. It only relates to the sort of artistic and expressive work engaged in by the designer.

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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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Whose conscience deserves protection in Australia?

I am presenting a short paper at the University of Notre Dame, Sydney, Ninth Annual Religious Liberty Lecture and Conference, on February 24, 2023, as part of a panel on “The Importance of Conscience”. The paper is linked here:

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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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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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Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.

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Government amendments to Religious Discrimination bills

Debate in the House of Representatives in the Federal Parliament resumed today on the package of bills dealing with religious discrimination. (For general background, see my initial post on the bills here, and recent update on committee reports, here.) The second reading debate continues on Wednesday, I think, but the government has now released two sets of amendments it will be making to the bills. The most controversial will be the amendment to s 38 of the Sex Discrimination Act 1984; the other amendments to the main Religious Discrimination Bill will mostly be uncontroversial and reflect the recommendations of the two Parliamentary committees which recently reported. While the need for the s 38 amendment will continue to be debated, in my view it is targeted at the specific problem previously identified, and will if read in that context not unduly interfere with the operations of religious schools.

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