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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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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First volume of Australian Journal of Law and Religion published

Great to see that the first volume of the Australian Journal of Law and Religion has been published: see here. All articles are free to download. Congratulations to editors Alex Deagon and Jeremy Patrick on this new venture! I am honoured to have an article in this first issue on “Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws”.

For convenience, here is a copy of the first table of contents:

Articles

Law and Religion in the Classroom: Teaching Church-State Relationships: Renae Barker

The Formation of Islamic Law in Indonesia: The Interplay Between Islamic Authorities and the State: Muhammad Latif Fauzi

Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws: Neil Foster

Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts: Andrew Hemming

Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions: Patrick Parkinson

Book Reviews

Christians: The Urgent Case for Jesus in Our World by Greg Sheridan: Katie Murray

Law and Religion in the Liberal State edited by Md Jahid Hossain Bhuiyan and Darryn Jensen: Jeremy Patrick

Special Topic Forum: The Future of Law and Religion in Australia

The Continued Existence of the Crime of Blasphemy in Australia: Luke Beck

Proportionality in Australian Constitutional Law: Next Stop Section 116?: Anthony Gray

The Liberal and Post-Liberal Futures of Law and Religion in Australia: Joel Harrison

Happy reading!

ACT Discrimination Law “Reforms” Narrow Religious Freedom

The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.

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Religious Freedom Challenges for Theological Colleges in Australia

I am presenting a paper to a seminar for senior leaders in Australian theological colleges, dealing with religious freedom challenges. I comment briefly on some of the current protections provided, but also how those protection have been eroded recently, especially in Victoria (where amendments to the Equal Opportunity Act 2010 (Vic) which I previously commented on have now commenced.) A copy of the paper can be downloaded here:

New book: Law and Religion in the Commonwealth

I am pleased to announce that a new book of which I am one of the editors will be published on 30 June. The book is Law and Religion in the Commonwealth: The Evolution of Case Law (Hart/Bloomsbury, 2022) and my esteemed co-editors are Dr Renae Barker (UWA) and Professor Paul Babie (Adelaide). The book is a collection of studies of law and religion issues from around the Commonwealth of Nations, from established scholars and also from some who are just starting out.

From the publisher’s description:

Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.  

The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria. 

The cases are divided into four sections covering:
– Foundational Questions in Law and Religion
– Freedom of Religion around the Commonwealth
– Religion and state relations around the Commonwealth
– Rights, Relationships and Religion around the Commonwealth.

Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: 
– Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia
– The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia 
– Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights 
– R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.  

The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.

My chapter is an analysis of the key Australian case, Christian Youth Camps Limited v Cobaw Community Health Services Limited and is sub-titled “Balancing Discrimination Rights with Religious Freedom of Organisations”. The book can be pre-ordered here, and will be available from June 30.

More information about the book, and a sample of the first chapter, can be seen here.

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.