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.
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.
The long-awaited Religious Freedom Review: Report of the Expert Panel (chaired by the Hon Philip Ruddock) has now been released publicly, along with the formal Government Response. After the prior leaking of its 20 recommendations there were no major surprises as to the final conclusion, but there is much interesting background to the recommendations (and in one or two cases the full Report seems to have a significant impact on how one should read the language of the recommendations.) It is also important to see the announced intentions of the LNP Government as to how they will respond.
In this first post in response to the full Report I will comment mainly on recommendations 1 & 5-8 and recommendation 15, with the other recommendations to be left for part 2 or later.
The Religious Freedom Review Panel, chaired by the Hon Philip Ruddock, has invited submissions from all Australians on the protection of religious freedom in Australia. Submissions are being accepted until 14 February 2018. I attach a copy of my submission here: Submission on Religious Freedom Protection for RF Review Expert Panel (with permission of the Review Panel), and one of its attachments: Foster Attachment 1- Religious Freedom in Australia overview 2017. (There is a second attachment which I will release later, as it is a copy of a paper I am presenting at a conference in a couple of weeks.) Those who are interested in the area may find it helpful to see the sort of topics that I think ought to be addressed.
Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.