In the context of the current postal survey on changing the law of marriage in Australia, press reports in the last few days indicate that a contractor who had been working for an ACT-based children’s entertainment business has lost her position solely due to her indication of support for a “No” vote in the current postal survey on the issue being conducted in Australia. (See here for a detailed report on the incident quoting both sides.)
It seems worth commenting on the legal implications of the decision to terminate the contractor, especially in light of the “Safeguards” legislation that was recently passed by the Federal Parliament, and on which I recently posted.
The debate on same sex marriage in Australia, and the debate on whether we can have a debate, took some interesting turns in the last week. I have a comment on Mercatornet where I discuss how beer and bibles led to questions about what can be said and who can say it: see “Beer, Bibles and free speech in Australia” .
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  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.
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.
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.
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.
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
- R v Hall (No 1)  NSWSupC 13 (12 March 1829) ; Hall v Scott  NSWSupC 29; (1830) NSW Sel Cas (Dowling) 437 (6 April 1830)
- Ex parte Rev George King  NSWLeggeSC 1; (1861) 2 Legge 1307 (9 February 1861)
- Attempts to control conscience by legal processes
- Wylde v Attorney-General (NSW)  HCA 39; (1948) 78 CLR 224 (6 December 1948) (“the Red Book case”)
- Scandrett v Dowling (1992) 27 NSWLR 483 (not available freely online)
- Churches as defendants
- Trustees of the Roman Catholic Church v Ellis & anor  NSWCA 117 (24 May 2007)
- Anglican Development Fund Diocese of Bathurst v Palmer  NSWSC 1856 (10 Dec 2015).