I am presenting a paper at a Melbourne Law School seminar on “Tort Liability of Churches for Clergy Child Abuse after the Royal Commission: Implications of Developments in the Law of Vicarious Liability and Non-Delegable Duty”, which is now available for those who are interested. The (fairly technical legal) paper reviews common law liability of churches, touches on some of the statutory changes in NSW and Victoria following the Royal Commission, and suggests that the High Court of Australia should refine the law of “non-delegable duty” to allow it to be used in cases involving intentional torts.
A brief note about the Sex Discrimination Act amendments which have the subject of a number of recent posts. The House of Representatives has now adjourned for the year without a Government Bill being introduced to make any changes concerning religious schools and discrimination. So no binding changes will be made this year. On 6 December the Senate referred the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 February 2019. Submissions to the Committee can be made at the website linked here, and must be provided by 21 January 2019: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Sexdiscrimination.
Note: this post has been edited- contrary to initial advice I had received from the Committee, the deadline for public submissions to the Committee on this inquiry is 21 January 2019, not 11 January.
Having noted last night that ALP-sponsored amendments to the Sex Discrimination Act 1984 (Cth) impacting religious freedom were set to be debated today (Wed 5 Dec) in the Senate, this is an update on the events of the morning. The situation, to put it mildly, has been fluid, but this seems to be where we are up to.
A brief update on Parliamentary developments. The Senate debate on the ALP-sponsored Bill to amend the Sex Discrimination Act 1984 took place today. While initially the Bill had been subject to a tight time limit which meant it would have passed today if not actually voted down, at the last minute a Government motion amended this arrangement. The result is as follows:
Debate on this bill will continue at a later date.
It seems that the bill is likely to be referred for consideration to a committee, and the debate will presumably be picked up in the New Year.
There was a similar Bill, however, introduced into the House of Representatives this morning by the Leader of the Opposition. At the moment it is not clear whether this Bill will be debated again this week. More updates will be provided when more is known.
A number of Christian and other religious organisations are deeply concerned about the proposals in the ALP-sponsored private Bill due to be debated in the Senate on Monday Dec 3. As I have discussed in previous comments (here and here) the Bill, which started out as an agreed measure to stop religious schools from expelling gay students on the basis of their “orientation” alone, has a number of other serious consequences for religious freedom, not only for schools but for churches, mosques, synagogues and other religious organisations (such as, for example, University student ministries.)
The Bill amends the Sex Discrimination Act 1984 to remove some clauses which have previously provided protection for Christian organisations to operate in accordance with their religious beliefs. It narrows the scope of s 37 of the Act, which has previously exempted religious bodies acting in accordance with their beliefs from being sued for discrimination on the grounds of sex, sexual orientation or gender identity. If the Bill in its current form goes through, a Christian student group, for example, may not be legally able to require those who engage in “education” on its behalf (whether at public meetings or in small groups) to teach the Bible’s view on sex or sexual activity. A church may find that its “education” in small groups or in its church services can be challenged as providing “less favourable” treatment to same sex attracted members of the congregation.
As well as my previous comments on this blog, see these other comments from Christian organisations:
- “Why Australian Religious Freedom Is Under Legal Threat” (Akos Balogh, Gospel Coalition Australia, 1 Dec 2018)
- “ALP’s Bill to Severely Limit Freedom of Religious Schools and Colleges and Religious Education in Churches, Mosques, Temples” (Mark Sneddon, Institute for Civil Society, 30 Nov 2018).
I have been asked how concerned citizens can contact their Parliamentary representatives. There is a helpful “contact page” which allows electronic messages to be sent on this Parliament house web page. There is a box to type in your postcode to find out who your local MP is, and the “refine search” menu on this page enables you to identify all the Senators for your State.
Points that could be made include:
- No religious schools want to be able to expel same sex attracted students on the grounds of their sexual orientation alone.
- However, the current ALP-sponsored Bill goes far beyond dealing with this problem, and will seriously reduce the religious freedom of religious schools to operate in accordance with their religious beliefs.
- The Bill is also so widely framed that it removes protections for all “religious bodies” in relation to “education”, and this has the potential to make it unlawful for churches, mosques and synagogues to teach the doctrines of their faith to their own members.
- It would be best if legislation was not rushed through at the last minute. Parliament should wait until the Ruddock Report has been released and there is time for careful consideration and consultation before making any amendments in this area.
For those following the debates about proposed amendments to discrimination laws removing religious freedom from faith-based schools, the LNP Government has now tabled a number of amendments to the ALP Bill released earlier this week. While these amendments are a move in the right direction, there are still some serious concerns about their effect on religious schools and their ability to operate in accordance with their religious beliefs.