Religious Free Speech in Australia: CDF v Gaynor

Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017) is, No, not without having their service terminated.

I mentioned the earlier decision of a single judge of the Federal Court in these proceedings in a previous post over a year ago: see Free speech and religious freedom even for ADF members (Dec 10, 2015). In that earlier decision Buchanan J ruled that Major Bernard Gaynor’s termination was unlawful, because in applying the relevant regulations the Chief of the Defence Force had breached the implied “freedom of political communication” under the Commonwealth  Constitution. Now the Full Court of the Federal Court (Perram, Mortimer & Gleeson JJ) has overturned that previous decision and upheld the termination. The decision and the way that the “freedom of political communication” is dealt with have disturbing possible consequences for free speech in Australia on controversial political topics, many of which are raised these days by religious beliefs which run contrary to “orthodox” opinions in society at large.

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Special Religious Education in NSW and “grooming”

Over the course of three days the local Herald newspaper here in Newcastle (NSW) has been publishing a series of misleading and inflammatory articles designed to put pressure on the NSW Government to stop offering the Special Religious Education program (SRE, or sometimes popularly called “Scripture”) in public schools. Here I want to address a particularly inflammatory accusation implied or made in these articles, that SRE material somehow supports “grooming” of children for sexual purposes. These accusations are completely false and should not have been made in the first place.

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Religious Freedom, transgender issues and abortion- overruling the US Health Department

The recent (31 Dec 2016) decision of US Federal District Court Judge O’Connor in Franciscan Alliance Inc v Burwell (ND TX, Case 7:16-cv-00108-O; Dec. 31, 2016) (thanks to “Religion Clause” for the report and information) is a significant one. In short, the Obama administration had used the prohibition on “sex discrimination” in US Federal law to enact an administrative regulation requiring Christian health care providers (and some State governments) to provide transgender “transition” procedures, and abortions, to all patients, arguing that denying this coverage amounted to sex discrimination.

This highly questionable interpretation has now been overturned by this very significant decision; even though only a Federal district court judge, it seems to be binding across the whole of the US unless overturned.

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Protection of Religious Free Speech in Australia

I am presenting a paper on protection of free speech and connections with religious freedom at the Australasian Christian Legal Convention in Brisbane today. A full copy of the paper can be downloaded here: protection-of-religious-free-speech-in-australia . It is a fairly lengthy document but I hope it may be a useful resource for lawyers interested in protection of free speech on religious matters in Australia.

Litigation involving Churches in NSW

I was privileged to host a guest lecture in the “Law and Religion” course I teach, on Friday August 26, from Professor Keith Mason, former President of the NSW Court of Appeal and renowned legal scholar and jurist, on the topic of “Litigation involving churches in NSW”. Professor Mason is one of Australia’s leading experts on the law involving churches, having been involved as both counsel and on the bench in a number of important cases. His lecture was a fascinating tour of church litigation from the earliest days of the Colony up till the case involving the Bathurst Diocese just last year (for my earlier comments on that case see this previous post.)

Professor Mason has indicated that he is happy for me to share the audio of the talk, which can be found here. For those who interested in reading the cases he refers to, the following provides the full citations (and links where available):

Cases mentioned in Professor Keith Mason’s lecture

  1. “Hotheads”
    1. R v Hall (No 1) [1829] NSWSupC 13 (12 March 1829) ; Hall v Scott [1830] NSWSupC 29; (1830) NSW Sel Cas (Dowling) 437 (6 April 1830)
    2. Ex parte Rev George King [1861] NSWLeggeSC 1; (1861) 2 Legge 1307 (9 February 1861)
  2. Attempts to control conscience by legal processes
    1. Wylde v Attorney-General (NSW) [1948] HCA 39; (1948) 78 CLR 224 (6 December 1948) (“the Red Book case”)
    2. Scandrett v Dowling (1992) 27 NSWLR 483 (not available freely online)
  3. Churches as defendants
    1. Trustees of the Roman Catholic Church v Ellis & anor [2007] NSWCA 117 (24 May 2007)
    2. Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 (10 Dec 2015).

Religious Ethos and Open Membership at Sydney University

A report in the student newspaper from the University of Sydney (Honi Soit, March 13, 2016) records that

The University of Sydney Union (USU) has threatened to deregister the Sydney University Evangelical Union (EU) from the Clubs & Societies program over the latter’s requirement that all members must make a declaration of faith in Jesus Christ.

In other words, a student religious group is being told that they may no longer be registered to use University facilities or receive the financial support other groups receive, because they make it a requirement of membership that someone support that religion. This is a very disturbing development for religious freedom at the University of Sydney, and especially if it presages similar developments around Australia. What is going on here? And is this move lawful, or not? 

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