The University of Southern Queensland has established an essay competition in law and religion open to students in any Australian law program (see here for more details). There are cash prizes and the winner’s essay will be published in the Australian Journal of Law and Religion. This is a great opportunity and I encourage anyone who is studying law, and interested in this area, to have a go! (Deadline is 1 June 2025.) Do pass this on if you know law students who might be interested.
The High Court of Australia has handed down a significant decision on the law of “vicarious liability”, ruling that a church body is not automatically liable for sexual assault carried out by priests or ministers, where those persons are not employed by the church. In Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024) the court ruled (by 6-1 majority) that the doctrine of vicarious liability should not be extended to apply to relationships “akin to employment”. In doing so it upheld an appeal against the decision of the Victorian Court of Appeal that the Roman Catholic Bishop of Ballarat (and the diocese) should be held to be vicariously liable for historic acts of child abuse committed by one Coffey, who at the time was an assistant priest in the diocese. It was accepted at all times that a priest is not an employee of the bishop or diocese. (For reasons why this is correct, see my previous post on employment status of clergy).
While I think this decision on vicarious liability is the correct application of the law of Australia, I want to stress that this does not mean I think churches should not be able to be held civilly liable for abuse committed by clergy. I have argued that an alternative doctrine, known as “non-delegable duty” (NDD), should apply even in cases of intentional sexual abuse, where a church has accepted the care of children and young people into its activities. However, NDD was not argued at the initial stages of this litigation, and the High Court held in Bird that they would defer until another day a ruling on whether NDD can apply in cases of intentional wrongdoing.
Applying the “calculus” of negligence spelled out in Wyong Shire Council v Shirt (1980) 146 CLR 40, this paper aims to show that the reasonable person will carefully investigate the claims of Jesus Christ:
For those who are in or can make it to Newcastle, I am speaking at a breakfast seminar on Wednesday Oct 30 (7:30-8:30 am) in the Newcastle CBD (Nuspace, the Uni city campus) x703. The topic is “The Calculus of Christianity”! Here is what it is about:
Both professionally and personally, we are constantly making calculations around risk. What would happen if we were to extend those calculations to the claims of Jesus Christ? Join us at our next Newcastle City Legal as Torts Lecturer Assoc. Prof. Neil Foster uses Wyong Shire Council v Shirt to do just that.
What would a “reasonable person” (for local purposes, the user of the Newcastle Light Rail!) make of the claims of Jesus, and how should they respond?
Registrations here. All welcome, but would be especially good to see local lawyers and anyone else interested in the law!
I encourage everyone interested in law and religion issues to read this challenging piece published on the Australian Broadcasting Commission website from Emeritus Professor Patrick Parkinson: “Christian sexual ethics and the abuse of adolescents: Lessons from the Anglican Diocese of Newcastle” (24 September 2024). Professor Parkinson provides some comments on the excellent recent review of the horrific child abuse perpetrated by some clerics in Newcastle published by Anne Manne, Crimes of the Cross (Black Inc, 2024). Both the article and the book itself are crucial reading for church leaders, who need to be aware of the terrible things done under cover of the Christian faith.
An important insight that Professor Parkinson brings is that the gradual departure of some in the church from Biblical standards of sexual morality has been one of the factors contributing both to the abuse of children but also to the unwillingness of those in the church to take action to prevent it. He comments:
I suspect that the abandonment of traditional Christian sexual ethics without a theologically informed replacement created an environment where the sexual abuse of adolescents became more likely in Newcastle; and this remains a continuing vulnerability for churches that depart from traditional Christian sexual ethics or that allow this to occur in a subterranean way.
I commend the article, and Ms Manne’s book, as important reading.
In his decision in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (23 August 2024) Bromwich J in the Federal Court of Australia found that the company Giggle had been guilty of indirect gender identity discrimination when its director, Sall Grover (who was also sued), had removed Roxy Tickle from her women-only social media app. Roxanne Tickle (“the applicant”), as Bromwich J noted:
was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex. This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act.. (at [3])
I commented on earlier stages of this litigation in a previous post. The question as to whether sex as a legal category is changeable, and the implications of this for discrimination law, are of great concern to many concerned with protection of traditional female-only spaces. It is a question which raises concerns for religious folk, many of whom see sex as a biological category determined at conception and ordained by God. Hence a review of the decision seems justified on this blog concerned with law and religion, although I note that none of the participants in the case professed any religious reasons for their views. The view that sex is determined by fundamental biological facts is shared by many, on both religious and scientific grounds.
In short, I think this decision is incorrect as a matter of law, and the implications of the decision are bad for society as a whole, and women in particular. I hope it will be overturned on appeal.
On behalf of the organisers, I am happy to post (for academic, and academically inclined, readers!) a call for papers for a symposium to be held in Queensland in February 2025.
5th Annual Theology and Jurisprudence Symposium
School of Law, Queensland University of Technology, Gardens Point Campus
Friday 14 February 2025
THEME:
This annual symposium focuses on the relationship between theology and jurisprudence. Jurisprudence typically purports to provide a non-theistic account of ‘law’. However, foundational to many theories of law is some kind of theology. Natural law, of course, is deeply influenced by its theological articulation through Thomas Aquinas and even modern ‘secular’ theories of natural law retain vestiges of this influence. The main proponents of legal positivism (such as Thomas Hobbes and John Austin) often engaged with different aspects of Christian theology. Moreover, theological influences on legal theory are not limited to Christianity; jurisprudential viewpoints around the world have been shaped by a broad range of theological traditions. The tendency of jurisprudence to ground itself in some kind of theology is not surprising given its need for an ontological foundation for legal authority. This symposium aims to consider jurisprudence from a variety of theological standpoints and critically examine the reliance of diverse theories of law on theological perspectives.
CALL FOR PAPERS:
We invite papers that consider the prevailing theological assumptions of legal theories; unpack the different streams of jurisprudence from a theological perspective; explore how theology tends to define and undergird theories of law; or consider any other issues which engage both theology and jurisprudence. Presenters are required to submit written papers (which can be works-in-progress) for distribution to the other symposium participants by 1 February 2025. Presenters will be allocated to panels, and each panellist will be asked to introduce and comment on another panellist’s paper to start the discussion. The finalised papers may be considered for publication in a special journal issue or edited book.
SUBMISSIONS:Abstracts of 100-200 words should be submitted by email to Associate Professor Alex Deagon (alex.deagon@qut.edu.au) no later than 1 November 2024. Successful applicants will be notified by the end of November. There is no conference fee for the symposium, but participants will need to fund their own transport and accommodation.
More details are to be found here:
Freedom for Faith is hosting the FREEDOM24 Conference 9am-4pm on Monday August 5th at Village Church Annandale in Sydney. I highly recommend this conference!
Livestream tickets are free, to maximise access for those who cannot attend in person.
FREEDOM24 conference will develop your understanding of threats to religious freedom in Australia from historical, theological and policy perspectives.
Historian Sarah Irving-Stonebraker will examine the history of religious freedom, while John McClean of Christ College will share a theological perspective on how the church is to respond to legal threats to ministry. We will also have a number of experts unpack the major religious freedom concerns in Australia, as well as implications and paths forward for advocacy.
Issues examined will include:
Get tickets at fff.org.au/f24.
I have presented a paper today surveying Australia laws on “hate speech” and “vilification”, as they have an impact on religious free speech. The paper can be downloaded here:
It is good to see the online publication of Volume 4 of the Australian Journal of Law and Religion. This is a special issue on “Theology and Jurisprudence”. The table of contents:
Volume 4, 2024
The Catholic Modernity of Pope Benedict XVI: Healthy Secularity and Christian Jurisprudence Zachary R. Calo 1
Natural Law with and without God Jonathan Crowe 17
Christian Natural Law and a Foundation for Religious Freedom: Love, the True, and the Good Alex Deagon 34
The Secularisation of Conscience: A Natural Law Critique Constance Youngwon Lee 57
Kierkegaard’s Works of Love: From Benedict’s Rule to More’s Utopia Joshua Neoh 75
Corporations, Compelled Speech, and the Common Good Lukas Opacic 84
Christianity and Law in the Enlightenment John Witte Jr. with Harold J. Berman 101
All articles can be downloaded for free from: https://ausjlr.com/issue-archive/
Law, politics and culture from a Christian perspective
Professor of Law whose research interrogates the interaction between law and humanities, with particular expertise in Law and Religion and Legal History. All views my own.
Law and Religion Australia 