I recently presented a paper exploring legal issues arising for Christian schools in NSW, which I thought may be of general interest. It also discusses developments in other Australian jurisdictions which may have an impact on NSW law in the future. The paper can be downloaded here:
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:
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
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
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.
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:
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.
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.
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.
Two committees of the Australian Federal Parliament examining proposed legislation on religious discrimination handed down their reports on Friday 4 February, 2022. Both committees recommended that the Bills introduced in November 2021 be passed by the Parliament, with some minor amendments. The report of the Parliamentary Joint Committee on Human Rights (“PJCHR”) can be found here, and that of the Senate Legal and Constitutional Affairs Legislation Committee can be found here.
While each report mentions a number of objections to the legislative package, it is significant that these cross-party committees both end up by recommending the enactment of the laws in substantially their current form. In my view this is an encouraging sign, that may signal that the legislation might find sufficient support to pass the Parliament before an election is called this year.
(There were “additional comments” made by ALP members of both Committees, but they did not formally dissent from the majority recommendations. There was a formal dissent from the Greens Senator Janet Rice to both reports, joined in the Senate Committee by fellow Green Senator Lidia Thorpe. Liberal Senator Andrew Bragg provided “additional comments” to the Senate Committee report without formally dissenting.)
In this post I will briefly summarise the recommended amendments put forward by the committees, and some other issues that have been raised this week following events at Citipointe college which I discussed in a previous post.
The submission of Freedom for Faith to the Parliamentary Joint Committee on Human Rights inquiry into the Religious Discrimination Bill is now available for download here. I prepared the submission with input from other board members. Submissions to this committee can be made at their website here, but only until 5 pm Tuesday 21 December. There is also a short survey that the Committee have released which it would be good for anyone concerned with religious freedom in Australia to fill in before that same deadline.