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Latest Issue of Australian Journal of Law and Religion; my “surrejoinder” on s 109

I’m very pleased to note that the latest online issue of the Australian Journal of Law and Religion (2024, vol 5) has just become available (free to download) here. The issue contains a number of really interesting articles I am looking forward to reading- I will list the Table of Contents below. (Of course it goes without saying that I might not agree with everything said by the other authors, nor they with my views- but that is what a robust academic debate is about!)

But I hope I will be forgiven for highlighting two articles of particular interest to me. One is a book review by Jacob Carson, who is a current undergraduate law student at the University where I have the privilege to work. The other is an article that I have written, which is labelled a “surrejoinder” : “Religious Freedom, the Sex Discrimination Act, and Section 109: A Surrejoinder to Butler“. This somewhat unusual word is used when something is published as part of an ongoing academic debate.

I published an article in volume 1 of the AJLR arguing that, where Commonwealth laws provide a more generous regime for religious bodies accused of sex discrimination, than that provided by States and Territories, that the effect of s 109 of the Constitution is that the Commonwealth law will prevail over the other laws.

 In volume 2 of the journal, Nicholas Butler provided a rejoinder to my article, arguing that I was wrong to suggest that the effect of s 109 of the Constitution would be that such State laws would be inoperative. In this volume I continue the debate with my “surrejoinder”, and maintain that my earlier arguments were correct. This issue continues to be significant, as increasingly laws enacted by States and Territories make it harder for faith-based organisations and educational institutions to operate in accordance with their faith commitments. In those circumstances, while the Commonwealth laws provide a reasonable balance between rights of religious freedom and rights not to be discriminated against, such bodies should, I argue, be able to rely on the protections provided by Commonwealth law.

I commend the debate to those interested. The other articles in this volume are noted below; it is good to see in particular articles published as part of a co-operative venture with a key US website which comments on religious freedom issues, “Canopy Forum”. All of the articles are available here, either as a single download of the whole issue or separately.

Alex Deagon and Jeremy Patrick, Editorial (pp. i-ii)

Articles

Brady Earley, Religious Exemptions in Ancient China (pp. 1-13)

Rosemary Teele Langford and Malcolm Anderson, Religious Charities in Australia: Implications for Governance Under Traditional Values and Outlooks (pp. 24-39) 

Joseph Lee, Religious Institutions and Personal Injury Compensation Claims for Abuse: The Noteworthy Significance of Insurance (pp. 40-61) 

Interviews

Hon. Michael Kirby, AC CMG, An Interview on Faith and Sexuality with Michael Kirby (pp. 62-70) 

Book Reviews

Michael F Bird, Religious Freedom in a Secular Age: A Christian Case for Liberty, Equality, and Secular Government (Review by Jacob Carson) (pp. 71-73) 

John Witte, Jr. and Rafael Domingo (eds.), The Oxford Handbook of Christianity and Law(Review by Alex Deagon) (pp. 74-75) 

Robert F. Cochran Jr., The Servant Lawyer: Facing the Challenges of Everyday Faith in Christian Law Practice (Review by Benjamin B Saunders) (pp. 76-78) 

Special Topic Forum: The Rise of the Nones (co-published with Canopy Forum)

Rhys Gower and Adam Possamai, The 2021 Australian “Mark ‘No Religion’” Campaign (pp. 79-82) 

Anna Halafoff, Andrew Singleton, and Elenie Poulos, Querying “No Religion”: State, Society, and Spirituality in Australia (pp. 83-88) 

Jeremy Patrick, A Brief Rejoinder to Movsesian on ‘The New Thoreaus’ (pp. 89-91)

Jesse M. Smith and Ryan T. Cragun, The Push Away from Religion and the Pull Toward Secularity: The Rise of the Nones in the United States (pp. 92-96)

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The new Federal privacy tort and religious freedom

In the closing Parliamentary days of 2024, the Australian Federal Parliament created a new statutory privacy tort action, which may have a significant impact on churches and other religious groups. In the context of a possible disciplinary action against someone who has behaved contrary to the principles of a religious group to which they belong, it may be necessary to inform other members of the group about the person’s behaviour. In doing so the group will be in danger of breaching a right of privacy set up by the new law. The tort action (which will probably come into operation on 11 June 2025) seems to cut across important rights of religious freedom, and the exemptions under the law do not take this into account.

In this post I aim to outline some aspects of the operation of the new law, and recommend that before it commences Parliament provide specific recognition of religious freedom as an exemption to the availability of the action. In this discussion I will specifically refer to the impact on Christian churches, but my comments will in most cases be also applicable to other religious traditions and to other organisations operating with a religious ethos.

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Law and Religion essay competition

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. 

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Bishop not vicariously liable for abuse by clergy

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.

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The Calculus of Christianity

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:

THE CALCULUS OF CHRISTIANITY Oct 30 2024Download
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The Calculus of Christianity- breakfast seminar Oct 30

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!

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Christian sexual ethics and the abuse of adolescents: Lessons from the Anglican Diocese of Newcastle

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.

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Tickle v Giggle: Sex and Gender Identity

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.

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Academic conference on Theology and Jurisprudence, 2025- call for papers

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:

Theology and Jurisprudence Symposium Call for Papers 2025Download
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FREEDOM24 conference August 5

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:

  • Federal Religious Discrimination Bill
  • Faith-based schools and the Sex Discrimination Act
  • NSW Conversion Practices Act
  • NSW “Equality” Bill
  • Queensland Anti-Discrimination and “Respect at Work” Bill

Get tickets at fff.org.au/f24.