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Churches offering sanctuary to asylum seekers

In a high-profile decision of the High Court of Australia yesterday, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1 (3 February 2016), a 6-1 majority ruled that the Australian government is entitled to continue its policy of detaining certain asylum seekers off-shore in the Pacific nation of Nauru. In recent days there has been a lot of publicity on this issue, especially in relation to a group of mothers and their babies and young children who have been receiving medical treatment in Australia, and will now have to be returned to the dreadful conditions in Nauru. Today a number of Christian churches went public with an offer of “sanctuary” for those who are supposed to be returned.

From one of the press reports, “Churches become potential flashpoint after offering sanctuary to asylum seekers in wake of High Court verdict” (A Gartrell, Sydney Morning Herald, Feb 4, 2016):

Ten Anglican churches and cathedrals have invoked the ancient Christian tradition to offer protection to the 267 people – including 37 babies – facing imminent transfer to Nauru after the court on Wednesday upheld the legality of the government’s offshore processing regime.

The movement is being led by the Anglican Dean of Brisbane, Dr Peter Catt, who has declared his St John’s Anglican Cathedral a place of sanctuary.

Dr Catt said if any asylum seekers sought sanctuary in his church he would do his best to keep the authorities out. He said he fully accepts that he and other clergy could be charged with obstruction and potentially even face possible jail time.

It seems worthwhile to comment briefly on the legal issues around “sanctuary” in Australia.

Background to the Law of “Sanctuary”

Most people are aware that church buildings in the past were a place of refuge, where some wrongdoers could seek sanctuary from arrest. As a number have noted, this idea no doubt had its roots in the Bible, where in the Old Testament there are some recorded references to people seeking sanctuary at the altar of the Temple (see 1 Kings 1:49-53, Adonijah, and 1 Kings 2:28-34, Joab; one was allowed to avoid punishment and the other, seen as a deliberate murderer, was not). The law of Moses also saw a system of “cities of refuge” (Joshua 20:1-6) where those who had committed what today would be called “involuntary manslaughter” could seek to flee from revenge at the hands of the family of the deceased. (For a careful discussion of these passages, and other material relating to Old Testament views of “asylum”, see Jonathan Burnside, God, Justice and Society (Oxford, 2011) at 265-270.)

In the early days of the common law of England, this was implemented by a system of sanctuary which applied in local churches in different ways. (For an overview of the history of legal sanctuary in Europe and elsewhere see L Rabben, Give Refuge to the Stranger (Left Coast, 2011), ch 3; for an analysis of the issue at common law see J H Baker “The English Law of Sanctuary” (1990) 2/6 Ecclesiastical Law Jnl 8-13.) With the growing power of the secular monarchy, areas where wrongdoers could escape the King’s justice were increasingly reduced, and in 1624 sanctuary as a common law doctrine was abolished by statute (21 Jam I, c 28, s 7).

Any legal operation of the doctrine, then, was well and truly removed from the common law before the European settlement of Australia, and not part of that law which was “received” into our system. In any event, the continuation of a law which gave special recognition to the status of church buildings was unlikely to have survived the process of Federation, where at least for the purposes of the Commonwealth, no “establishment” of religion was possible under s 116 of the Constitution.

Churches and Civil Disobedience

It seems likely, then, that members of a church who shelter someone who is supposed to be returned to Nauru may be guilty of an offence under s 233E of the Migration Act 1958 (Cth), subsection (3) of which provides:

 (3)  A person (the first person ) commits an offence if:

                     (a)  the first person harbours another person (the second person ); and

                     (b)  the second person is an unlawful non-citizen, a removee or a deportee.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

 While I am not aware of other Australian cases dealing with the meaning of this provision, or of “harbouring”, the general sense seems to be that of providing accommodation and support for someone who is breaking the law. In the United States a decision of the 9th Circuit US Court of Appeals, United States v Aguilar, 883 F 2d 662 (1989) found that a church which had engaged in support for illegal migrants was guilty of “harbouring” under a broadly equivalent provision of US law, 8 USC 1324. (For an article discussing the case, and others, while critical of the decisions, see E Breslin,

“THE ROAD TO LIABILITY IS PAVED WITH HUMANITARIAN INTENTIONS: CRIMINAL LIABILITY FOR HOUSING UNDOCUMENTED PEOPLE UNDER 8 U.S.C. § 1324(A)(1)(A)(III)” (2009) 11 Rutgers Jnl of Law and Religion 214-242.)

While churches usually acknowledge the importance of keeping the law (in line with the Biblical injunction in Romans 13:1), Christian history and the Biblical witness record occasions where their higher loyalty to God has to take precedence over obedience to civil authority. See for example Acts 4:18-21:

18 So they called them and charged them not to speak or teach at all in the name of Jesus. 19 But Peter and John answered them, “Whether it is right in the sight of God to listen to you rather than to God, you must judge, 20 for we cannot but speak of what we have seen and heard.”21 And when they had further threatened them, they let them go, finding no way to punish them, because of the people, for all were praising God for what had happened.

The reluctance of the authorities to punish the apostles, because of their popularity with the general public, is interesting, but the US examples noted above reveal that churches cannot always rely on the Government declining to prosecute!

The relevance of religious freedom

It might be argued, however, that a church determined to provide sanctuary was not necessarily breaking the law, if doing so was necessary to live out the commitments of their religious faith. Section 116 of the Commonwealth Constitution not only forbids the “establishment” of religion, but it also prohibits the Commonwealth Parliament from enacting a law “for prohibiting the free exercise of any religion”. I have discussed the protection of religious freedom on a number of other occasions on this blog previously: see here and here for material and links to a general overview. But this provision, while it has not been fully explored yet, might offer some protection for conscientious action by churches in this area. (I stress that this blog cannot provide formal “legal advice”, and so of course anyone wanting to act in this area should seek such advice from their own lawyer. But I offer here a possible scenario.)

It seems best to deal with what may be two immediate objections to this suggestion.

One would be to say that religious freedom protects a person’s right to believe, and perhaps their right to go to church, or a mosque, or a synagogue; but cannot over-ride a generally applicable law like the migration law. The short answer is that this is not the way a right to “free exercise of religion” operates. It is generally recognised in international law, and in other countries where religious freedom is protected, that it not only protects the area of belief and worship, but also provides at least some protection for action involved in living out one’s faith. In the main Australian case on the issue so far, Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, handed down at the height of World War 2 where it was thought that the Jehovah’s Witnesses organisation were undermining the war effort and so should be banned, the High Court of Australia stressed that religious freedom was a key human right recognised by the Constitution, and involved not simply internal belief but also everyday action. As Latham CJ said:

The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. (at 124)

 Now of course any human right must be balanced in the context of other human rights. The way that Latham CJ put it was that Commonwealth laws must not “unduly” interfere with religious freedom (at 128). In the context of that decision, the court deferred to the Commonwealth Government’s views on what was necessary for national security in the midst of the war, and would have upheld the relevant provisions if they had otherwise been valid. But the case stands squarely for the proposition that this sort of balancing process is necessary.
Another objection to seeing the offering of sanctuary to refugees as a part of an exercise of religion might be that not all churches agree that this is an appropriate response to the situation. It might be said that offering sanctuary is not “required” by the Christian faith. Again, the short answer to this is that protection of religious freedom does not simply extend to parts of a faith that are universally agreed on by all members of the religion. Cases from around the world demonstrate that so long as a belief is genuinely motivated by a sincere religious faith (and the religion itself is not a “sham” or a “hoax”), then it can be taken into account and the balancing process needs to be undertaken.
This can be illustrated from the 2013 decision of the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37, where the Court held that Ms Eweida’s religious freedom had been unduly impaired by a directive from her employer, British Airways, that she not wear a cross at work. It was conceded that not all Christians saw the wearing of a cross as “mandated”, but Ms Eweida’s belief that she should do so was sincere and a part of a tradition in Christianity that would be protected. No doubt churches offering sanctuary could point to strong arguments from the Bible, including the command to love one’s neighbour, as supporting their offers, especially given the emerging evidence of the serious harm to which asylum seeker children in particular are exposed on Nauru, both in terms of the risk of physical and sexual assault, and the danger to long term psychological well-being.
So, these two objections do not mean that an argument based on religious freedom could not succeed. But of course there are still a number of hurdles to be overcome. A court asked to decide the matter would need to address the question whether a prosecution of a congregation for its religiously motivated decision to provide sanctuary to an asylum seeker was an “undue” infringement of its religious freedom (or, which is probably the same question here, the religious freedom of its members.) My previous papers noted above discuss the relatively few cases where this issue has been addressed in the past in Australia, not always satisfactorily.
There is one suggestion that may point to a way forward. In a previous post I noted that the High Court, in the decision of McCloy v New South Wales [2015] HCA 34 (7 October 2015), set out a detailed scheme for addressing the question of whether there had been a breach of the “implied freedom of political communication” found under the Constitution.  In a later post on another case, I suggested that the “McCloy schema” could be adapted to this question of undue infringement of religious freedom. There I suggested:
now that the High Court in McCloy has set up a careful scheme for balancing the implied freedom of political speech with other important social values, it may well be open to applying the McCloy tests, and in particular the questions of “proportionality”, to consideration of what is, after all, an explicit constitutional freedom in s 116. In fact my colleague Dr David Tomkins, in a helpful overview of the McCloy decision (“Developers, Election Funding and the Implied Freedom of Political Communication: the HCA weighs in” (Dec 2015) Law Society Journal 88-89), has suggested that indeed this is one direction that might be taken in the future. Such a balancing process, which gives weight to the importance of religious freedom and the need to only over-ride it in very limited circumstances, would in my view be a positive development.
This would involve a Court considering not only whether the aim to be achieved by the particular provision was a legitimate aim, but also whether the over-riding of any religious freedom considerations was a “proportionate” method of achieving such an aim. It would at least be a matter worth considering.

Conclusion

It is not known yet whether the offer of the various churches to provide sanctuary will be taken up, and if so the attitude of the Commonwealth Government. It is worth noting that, while there does not seem to have been a strong tradition of this in Australia previously, other countries have experienced the phenomenon and dealt with it in different ways. A very useful article by Canadian Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law” (2009) 26/1 Refuge 43-56 discusses the Canadian experience and some of the issues that subsequently arose. One interesting issue he raises is that, when offering sanctuary became a well-established practice, churches had to develop a “screening process” to decide who, among the many candidates, would be offered sanctuary. In doing so, as he points out, they often replicated the sort of process adopted by the Canadian government in deciding who should be granted refugee status. These sort of issues will need to be considered by Australian churches as well, should it become necessary to proceed in this direction. (For those who are interested, there is a Canadian website at http://sanctuarycanada.ca with a lot of interesting material based on the experience of Canadian churches.)

The churches have been warned, both by legal experts and by the Immigration Minister, that they may face criminal sanctions if they go ahead with their proposals. They may respond that the law recognises their right to free exercise of religion, and that as a result they are not disobeying the law. They may accept that they are in breach of the law but choose to go ahead in obedience to a higher law. Complex issues may arise as to who is to be offered sanctuary, and for how long, and whether this will undermine an overall policy which some see as more humane in the long term. But in any event their willingness to stand up and risk their own comfort and safety for the rights of “little ones” who are loved by their Lord Jesus (see Matthew 19:13-14) seems thoroughly commendable.

Update: I have prepared a slightly updated version of these comments in a paper I presented on March 4, 2016 to the Newcastle Lawyers’ Christian Fellowship. The paper contains more details on the background to the law of sanctuary and some more recent comments on the issue from churches. It can be downloaded here.

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Heartbreak, Humiliation and a Death Certificate

“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

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Wedding Venue Owners Fined for Declining Same Sex Wedding

In the latest in what seems like a long series of religious freedom cases involving Christian small business owners in the “wedding industry”, a New York couple, the Giffords, have been fined $13,000 for declining to make their venue available for a same sex wedding ceremony, and a New York State appeal court has now upheld the verdict: see Gifford v McCarthy (NY Sup Ct Appellate Divn, 3rd Dept; 14 Jan 2016; matter no 520410) (the case is also referred to as Gifford v Erwin).

Facts of the case

The Giffords run Liberty Farm in Schaghticoke, Rensselaer County. A large barn has been used as a venue for weddings, where they provide all the services needed except a celebrant. As reported by the Gifford’s lawyers, Alliance Defending Freedom (ADF):

On Sept. 25, 2012, Melisa McCarthy called Cynthia, inquiring about the use of the farm for her upcoming same-sex ceremony. Because of her Christian faith’s teachings on marriage, Cynthia politely made it clear to McCarthy that she and her husband don’t host and coordinate same-sex ceremonies but left open the invitation to visit the farm to consider it as a potential reception site. Instead, McCarthy and her partner filed a complaint with the Division of Human Rights. After the agency ruled that the Giffords were guilty of “sexual orientation discrimination,” it fined them $10,000 plus $3,000 in damages and ordered them to implement re-education training classes designed to contradict the couple’s religious beliefs about marriage.

A New York statute, the Human Rights Law, declares it to be an “unlawful discriminatory practice” for any “owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the . . . sexual orientation . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof” (Executive Law § 296 [2] [a]).

Was the booking declined on the basis of sexual orientation?

The Giffords argued that they had not declined the booking “because of the sexual orientation” of the parties, but because as Christians they could not support the celebration of a same sex “marriage”, believing it to be contrary to God’s word in the Bible. In other words, their refusal was on the basis of the message of celebration that would be conveyed by the event, in which they would have to be intimately involved as hosts of the venue.

The ADF draw a helpful analogy to a different set of facts. As they note, the

law does not require the Giffords to coordinate or host every event that a person…requests. For example, if the infamous Westboro Baptist group asked the Giffords to host an event that would express their false message that God hates people in same-sex relationships, the Giffords would not be discriminating based on religion if they declined the event because they did not want to host expression that violates their belief that God loves everyone…. The statute does not require that they treat all messages equal.

Note that this case, like others of its nature, is not about a right to decline to provide services to gay people because of some form of unreasoned hatred. Instead, the question of whether a service provider whose work is essentially artistic and creative, should be required to use their skills to provide support for, and celebration of, a message that they find clashes with their deep religious commitments.

But the court rejected this argument. Peters PJ, with whom the other judges concurred, said (at pp 6-7):

Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected (see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of the Law v Martinez, 561 US 661, 689 [2010]; Lawrence v Texas, 539 US 558, 575 [2003]; Bob Jones Univ. v United States, 461 US 574, 605 [1983]). The act of entering into a same-sex marriage is “conduct that is inextricably tied to sexual orientation” and, for purposes of the Human Rights Law, we hold that there is “no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct of publicly committing to a person of the same sex” (Elane Photography, LLC v Willock, 309 P3d 53, 62 [Sup Ct NM 2013], cert denied ___ US ___, 134 S Ct 1787 [2014]; accord Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015]). Accordingly, petitioners discriminated on the basis of sexual orientation when they refused to host the McCarthys’ wedding on the premises. (emphasis added)

Readers of past blog posts here will recall some of these cases. In a general post on the “wedding industry” cases I mentioned the Elane Photography decision cited above, which was one of the first where a State Supreme Court upheld a ruling that a Christian wedding business (there a photographer) was guilty of sexual orientation discrimination by declining to offer their services to a same sex wedding. In that post I mentioned the decision in State of Washington v Arlene’s Flowers Inc, Ingersoll & Freed v Arlene’s Flowers Inc (Ekstrom J, Nos 13-2-00871-5, 13-2-00953-3; 18 Feb 2015), involving a florist. The Masterpiece Cakeshop decision noted above involved refusal to create a wedding cake celebrating a same sex marriage, as did the decision in  Re Klein dba Sweetcakes by Melissa and anor (Commissioner of the Bureau of Labor and Industries, State of Oregon; Case Nos 44-14, 45-14; 21 April 2015) mentioned in this post. Outside the US, in Northern Ireland the Ashers Bakery case mentioned in this post is still before the courts- an appeal is to be heard from February 3.

A common theme in all these decisions is the view that a decision not to provide artistic and creative support for a same sex wedding must amount to discrimination against the persons involved on the basis of their sexual orientation. This is a view which I have suggested is wrong, and in a previous post about an Australian decision, “Sexual orientation and sexual behaviour: can they be distinguished?” I noted that there is at least one court ruling that supports my view. In Bunning v Centacare[2015] FCCA 280 (11 February 2015) the judge commented at para [39] that

“sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.

I have also noted previously one US decision recognising the difference, in  Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), where a T-shirt printer escaped liability for declining to print a shirt with a message supporting “gay pride”.

The forthcoming Ashers Bakery case may provide the best opportunity for a superior court to clearly distinguish between support for a “message” and discrimination against a person themselves; the cake in that case was not going to be used at a wedding, but simply as a political statement, and may provide a good chance for the appeal court to stress the distinction between these things.

A religious freedom defence?

To return to the Gifford decision, having found the act of declining to offer their premises amounted to sexual orientation discrimination, the court went on to consider whether the Giffords, whose reason for not wanting to make the premises available related to their religious commitments about the nature of marriage, could rely on a defence based on religious freedom.

Unfortunately the discussion of this point followed the pattern familiar from most of the previous decisions. A claim that the discrimination law amounted to a breach of the Gifford’s “free exercise of religion” guaranteed by the First Amendment to the US Constitution, was rejected on the basis of the currently accepted Supreme Court orthodoxy of Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872, 879 (1990), holding that:

a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment (quoted at p 8 of Gifford)

The local New York version of “free exercise” was held to require a “balancing” of interests, and given the “strong” protection against discrimination under NY law, the court found that the interests of the Giffords were not strong enough. They retained the right to “believe” what they will! A generous concession, but not of course what religious freedom calls for. “SDHR’s determination does not require them to participate in the marriage of a same-sex couple”, Peters PJ said; though since their normal practice was to be heavily involved in all aspects of the ceremony and reception except for the actual celebration, her Honour does not quite explain how this was supposed to work.

A free speech defence?

The court also briefly addressed a “free speech” argument derived from the other limb of the First Amendment, the Giffords having argued that compelling them to host and organise a same sex wedding required them to impliedly assert their support for the institution. As the court summarised their point (at p 10):

petitioners maintain that wedding ceremonies are “inherently expressive event[s]” and that, by hosting a same-sex ceremony on the farm, the Giffords would effectively be communicating and endorsing messages about marriage that are antithetical to their religious views on the issue.

An argument I think that has a lot of weight. Clearly the very point of a wedding ceremony is the “celebration” (in the broad sense) of the relationship by the guests. But according to Peter PJ (at pp 10-11):

reasonable observers would not perceive the Giffords’ provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage…the conduct allegedly compelled is not sufficiently expressive so as to trigger First Amendment protections.

What “reasonable observers” would perceive does not seem to have been the subject of evidence; the court presumably takes “judicial notice” of the perceptions of “reasonable” members of the New York public in the relevant part of the State.

How might the matter be decided in Australia?

Interestingly there have been no reported cases of this sort arising in Australia yet. In theory such a case might be brought. There are laws at both State and Federal levels prohibiting sexual orientation discrimination in provision of services, and the balancing provisions explicitly recognising religious freedom interests are mostly confined to “religious organisations” such as churches and church schools, and do not directly extend to believers conducting a small business generally.

In fact there is one major Australian decision dealing with a somewhat related issue, the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Services Limited [2014] VSCA 75 discussed here and in papers linked from that post. While that case involved the provision of camping services rather than wedding services, there are a number of similarities: the event in question was clearly conveying a message contrary to the religious beliefs of the business owner (the camp was avowedly about “normalising” homosexual activity), and the business owner was said (by the court) not to be a religious organisation. Sadly the same logic used in many of the US decisions noted above was adopted by the majority of the court: refusal of the booking on the basis of support for homosexuality was held to amount to discrimination against the persons involved. There was not even a plausible religious freedom argument involved, as in Australia the protection of s 116 of the Constitution only applies to Federal laws, not to State laws; and at the relevant time the Victorian Charter of Rights which includes at least a nominal religious freedom right was not in force.

Given the increased recognition in recent years of an implied “freedom of political speech” in the Commonwealth Constitution, it is possible that free speech arguments might be made. One could argue, for example, that the question of expressing support, or not, for the institution of same sex marriage is very much a hot “political” topic in Australia at the moment, and that a law which imposed expression of a particular view on the matter contravened the Constitutional prohibition on impairment of free speech on such matters. However, this is so far an untested area in Australia.

For reasons canvassed in my previous papers I believe the Cobaw decision was deeply flawed; unfortunately the High Court of Australia declined to consider its correctness when invited to do so. In my view if a “wedding industry” case were to arise in Australia the principles in Cobaw ought to be reconsidered, and the important value of religious freedom given much more weight than it has been so far, either in Australia or the United States.

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Prohibiting Offensive Sermons

A recent decision in Northern Ireland, where an evangelical preacher was acquitted after being criminally charged in relation to a sermon attacking Islam, raises a number of important issues about free speech in a religious setting. 

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2015 in review

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog. Interesting to see how it has gone in the first year! Thanks to those who have been regular readers and referrers. I do plan to keep on posting in 2016.  All the best for the New Year!

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 24,000 times in 2015. If it were a concert at Sydney Opera House, it would take about 9 sold-out performances for that many people to see it.

Click here to see the complete report.

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Free speech and religious freedom even for ADF members

The Federal Court has recently handed down a very important decision on free speech, with connections to religious freedom, in Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 (4 December 2015). It encouragingly reaffirms the right of Australians, including members of the Defence Force, to be able to speak their minds, even when their views are not popular.

The plaintiff, Major Bernard Gaynor, may be described as a “controversial” figure. He has a distinguished record of service in the Australian Regular Army (including time in Iraq and Afghanistan). In recent years he transferred to the Army Reserve and was promoted to Major in 2013. He has been a political candidate. He is also known for objecting to, among other things, support provided by the ADF to the Gay and Lesbian Mardis Gras, and for strong views on how Australia should deal with the threat of Islamic violent extremism.

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Multiculturalism and Accommodation of Religious Difference: A Colloquium

My friend and colleague Professor Rex Ahdar from the University of Otago, NZ (and one of the common law world’s leading Law and Religion scholars) is organising a colloquium on “Multiculturalism and Accommodation of Religious Difference” to be held in QUEENSTOWN, NEW ZEALAND on Wednesday, 3 February 2016. More details and the official “call for papers” can be found here. To quote the handout:

Scholars in the areas of multiculturalism, pluralism, ethnic studies, demography, religious freedom, human rights and related disciplines are cordially invited to submit an abstract (maximum of 200 words) for a paper to be given at this colloquium of experts.

There is also limited space for participants who do not wish to present a paper, but who wish, nonetheless, to contribute to the lively discussion at this unique event under the auspices of the Faculty of Law, University of Otago

Should be a great day!

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First they came for the Catholics…

The proposed action for sexual orientation vilification against a Roman Catholic bishop for teaching what the Roman Catholic church believes about marriage, which I noted at an early stage in a previous post, is now becoming broader.

I have an opinion piece today on the issues in the online version of Eternity, “Tasmanian Anti-Discrimination Commission finds all Catholic Bishops might have a “case to answer”” (Nov 13, 2015). I had originally prepared these comments based on previous reports that the anti-discrimination claim was being made simply against Archbishop Julian Porteus, from Hobart, but I have now added a few additional remarks by way of introduction about the announcement today that the action is apparently now being taken against other Roman Catholic bishops around Australia. I encourage readers to click on the link to the Eternity article before reading the rest of this blog post.

For those who are interested in the legal background to whether a discrimination claim under one Australian State’s law can be enforced against people in another State, see Burns v Gaynor [2015] NSWCATAD 211 (14 Oct 2015), a case which raised related issues (in that it dealt with alleged “homosexual vilification” of a person who had not been named but was making a claim simply as someone of a homosexual orientation). There the NSW Civil and Administrative Tribunal held that a person who posted material on a computer in Queensland could not be held liable for a “public act” under NSW discrimination law. Similar logic would suggest that the Tasmanian law is intended to refer to conduct engaged in, in Tasmania, rather than outside that jurisdiction.

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Legal rights of same sex couples and married couples: an “urban myth”?

A recent article in the Sydney Morning Herald , “It’s an urban myth that same-sex couples and married heterosexuals have equal legal rights” (Nov 8, 2015; Tracey Spicer) suggests that there are large gaps between the legal rights of same sex couples and those of married couple. It reports a sad sequence of events, where one member of a same sex couple committed suicide, and in the aftermath the funeral took place at the directions of the deceased person’s parents, rather than as their partner wished. The article goes on to use this set of events as an argument for recognition of same sex marriage.

The case used in the article, however, seems on closer investigation not to make this point. The claim that equality of legal relationships is an “urban myth” proves to be wrong. The Tasmanian legislation relevant to this case means that this gentleman, as a member of a same sex couple, had prior rights as next of kin which should already have been recognised as superior to those of the deceased person’s mother, even without being formally “married”.

Tasmania has a “registration” system for relationships already. If the couple were committed to each other in a long term relationship they could, of course, already have been registered. Their situation was in that respect similar to that of a heterosexual “de facto” couple who chose not to marry. But even without registration the law would give the remaining partner important rights.

Under the Tasmanian Coroners Act 1995 s 3A a “spouse” has seniority of rights as a “next of kin” over a parent. Under that Act “spouse” means “other party to a significant relationship, within the meaning of the Relationships Act 2003″ (“RA 2003”). The RA 2003 s 4 says that a “significant relationship” can include a same sex couple, even if their relationship is not “registered” (though of course registration makes it easier to prove.)

So, what happened in this case? We don’t know from this report, which seems more concerned to make a political point than to be precise about the facts (and note at the end of the article, that the reporter’s trip to Tasmania was partly sponsored by the lobby group “Australian Marriage Equality”.) It may be that the relevant police or officials weren’t aware of the law, or it may be that this “spouse” didn’t make the situation clear. Some official may have behaved badly. But that happens all the time, sadly. As far as the law is concerned, no change in the law is needed to have given this gentleman seniority in “next of kin” arrangements.

The truth is that to call equality of general rights between same sex couples and married couples a “myth” is to denigrate the hard work done by those lobbying for protections for same sex couples over many decades. All Australian jurisdictions over the last 20 years have amended their laws to provide equality of legislative rights to same sex couples in almost all areas. The Commonwealth Parliament alone enacted a suite of such changes to over 80 laws in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth). There may be one or two minor areas where there is differential treatment in law, but this example from Tasmania does not seem to be one of them. It does not provide a convincing argument for changing the law of marriage.

neilfoster

Abortion “buffer zones”, free speech and religious freedom

Governments around Australia are showing a sudden enthusiasm for introducing restricted “zones” around clinics offering abortions, in order to prevent protestors from operating in those areas. Tasmania has introduced such legislation, in the Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9. An “access zone” under that law is 150 metres around a clinic, and within that area “prohibited behaviour” is defined as follows:

(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or

(b) a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or

(c) footpath interference in relation to terminations; or

(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person’s consent; or

(e) any other prescribed behaviour.

This is a very wide prohibition, covering not only violent or abusive behaviour (which of course would already be prohibited by the general law), but also making it unlawful to simply quietly hand out leaflets in a “protest” which can be said to be “in relation to” terminations, or indeed to wear a “protesting” T-shirt, however mild and inoffensive, while standing on the other side of the road from a clinic.

Similar legislation has also recently been enacted in the ACT, with the passage on 29 October 2015 through the Legislative Assembly of the Health (Patient Privacy) Amendment Act 2015 (ACT) (“HPPA”), although that legislation will apparently not commence for 6 months. In that case the “protected area” set out in s 86 of the amended Health Act 1993 is defined under s 86(2)(a) as 50 metres, which is at least somewhat more reasonable than the broad Tasmanian legislation. Under the HPPA amendments, however, the “prohibited behaviour” is even more extensively defined than in Tasmania:

prohibited behaviour, in a protected area around an approved medical facility, means any of the following:

(a) the harassment, hindering, intimidation, interference with, threatening or obstruction of a person, including by the capturing of visual data of the person, in the protected period that is intended to stop the person from—

(i)  entering the approved medical facility; or

(ii)  having or providing an abortion in the approved medical facility;

(b) an act that—

(i) can be seen or heard by anyone in the protected period; and

(ii) is intended to stop a person from—

(A) entering the approved medical facility; or

(B) having or providing an abortion in the approved medical facility; or

(c) a protest, by any means, in the protected period in relation to the provision of abortions in the approved medical facility.

Again, no violence or harassment in any verbal or physical sense need occur; anything that can be called a “protest”, or any “act” which is intended to discourage a person from having an abortion, is made unlawful.

Similar proposals have been mooted, though not yet enacted, in Victoria: see “Victoria to introduce buffer zones around abortion clinics“, SBS, 2 Sept 2015.

Of course the arguments in favour of protecting women who are visiting clinics to have an abortion, from undue harassment, are very powerful. Any such procedure is already incredibly stressful. If this were any other medical procedure, there would be very little reason to allow protests designed to discourage patients from attending, to take place outside medical offices . Protests could, of course, take place outside Parliament House (as proponents of these laws have urged.) This would all be persuasive if abortion were merely, as a recent editorial in the Medical Journal of Australia put it, just like “other medical procedures”. (See De Costa & Douglas, “Abortion Law in Australia: it’s time for national consistency and decriminalisation” (2 Nov 2015) 203/9 MJA 349-350, at 350).

But abortion is, with respect to those who think otherwise, not just another medical procedure. Many religious believers take the view that a human being, a person in the image of God, is present in the womb from the moment of conception. But agree with that view or not, there seems no doubt that, on purely objective biological grounds, what is present in the womb of a pregnant woman is a human life. A termination at the very least prevents that human life flourishing into a human being. However the operation is described, it is not “just another medical procedure”.

Those who wish to mount a quiet prayer vigil, or to offer counselling, outside abortion clinics do not do so, then, simply to “protest” the fact of the operation taking place, or because they believe the procedure is wrong and ought not to be carried out in the vast bulk of cases. They do so because they believe these things, but also because they believe that a human life is at stake in each procedure, and should be preserved.

Not all believers, even those who share the view that a full person is present from conception, take the view that vigils or “protests” outside abortion clinics are a wise or loving way to further the aim of stopping abortions. But some do. In general, our law places a strong value on the right of people to make public statements about their beliefs, where they are not directly attacking or threatening others. In addition, however, the law of Australia, and international law, protects religious freedom, and arguably not only the free speech rights of protestors, but also in many cases their religious freedom rights, are under threat from, or being impaired by, the “exclusion zone” laws.

I recently posted a guest blog by Professor Michael Quinlan on some of these issues, which summarised the approach in a recent US Supreme Court decision, McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014), which overturned as invalid a law forbidding protests within 35 feet of an abortion clinic. The US Supreme Court, of course, has a long history of reading the First Amendment “free speech” clause of the US Bill of Rights very broadly. I want to comment briefly here on how the laws mentioned above may be treated if challenged under Australian law.

Freedom of speech arguments

In light of the US decision, and others like it, the most obvious challenge to an Australian “protest-free zone” law would be under free speech principles. In this country, though, we do not have an explicit Constitutional free speech right. (It should be noted that in Victoria, where such a “protest-free zone” is now being proposed, there is a State-based “Charter of Rights” in the Charter of Human Rights and Responsibilities Act 2006 (Vic), section 15 of which protects “freedom of expression”. But the precise operation of this provision is still in some doubt- see, for example, the decision of the Full Court of the Federal Court in Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014)- and since the broader Federal right is applicable across the whole of Australia, that is what will be considered here. It is ironical, however, that two of the three jurisdictions which have implemented or indicated an intention to implement these “exclusion zones”, Victoria and the ACT, are the two jurisdictions in Australia which contain explicit human rights protection, including protection of freedom of expression.)

(In an earlier version of this blog post I omitted to mention that s 48 of the Victorian Charter explicitly says that nothing in the Charter affects “any law applicable to abortion”. While it seems likely that the original purpose of this provision was to avoid the Charter being used to make arguments about the “right to life” of an unborn child, it is possible that a “protest free zone” law relating to abortion clinics may be regarded as “applicable to abortion” and hence immune from challenge under the Charter. But this would not prevent the arguments made here about freedom of speech under Commonwealth law from being applicable. Thanks to Professor Quinlan for bringing this to my attention.)

While we do not have explicit Federal free speech protection in Australia, then, we do have an “implied freedom of political communication” which was discerned to be an implication of the Constitution by the High Court in a series of decisions culminating in Lange v Australian Broadcasting Corporation [1997] HCA 25;  (1997) 189 CLR 520. The most recent decision on this implied freedom is McCloy v New South Wales [2015] HCA 34 (7 October 2015), where a majority of the Court (French CJ, Kiefel, Bell and Keane JJ) spelled out the currently authoritative approach to dealing with these issues, in the following important (though lengthy) quote:

[2] …[T]he question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation[1] and Coleman v Power[2]:

A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors.”[3] It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

(1) Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.

(2) If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government[4]? This question reflects what is referred to in these reasons as “compatibility testing”.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.

(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object[5]? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision[6];

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.

Clearly there are many decisions ahead which will need to clarify the precise operation of these tests. But we can start by asking the question whether a 150 metre “exclusion zone” around abortion clinics is compatible with this implied limitation on the legislative power of Australian Parliaments (such as the Parliament of Tasmania).

  1. Does the law burden “political speech”? It seems fairly clear that it does. The topic of abortion is certainly a public policy issue of great contention in Australia, and from time to time different political parties have had different views on the issues.
  2. It seems likely that one could say that the purpose of the law is a legitimate one, in the sense that it aims to protect vulnerable citizens (women seeking terminations) from a harm they may suffer (being offended or feeling harassed in exercising a choice to have a termination). Perhaps one might raise a serious question about whether the “means adopted” to achieve this end are compatible with the “ordinary political processes” in Australia- we do not usually forbid public demonstrations because of the content of the material being communicated by the demonstrators. But let us assume for the moment that a 150 metre exclusion zone might just pass the test of a legitimate “means” of achieving an end.
  3. In the “proportionality” test, however, it seems strongly arguable that a wide zone of this sort will fail the test. Yes, the means adopted may be “suitable” in that they will presumably lessen the distress of those seeking terminations. But are the means adopted “necessary” in the sense that there is “no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom”? In order to achieve the laudable aim of protecting women from violent and harassing protestors, is it necessary to also prohibit those who may simply stand quietly handing out leaflets or praying? And in particular, is there a proper balance “between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”? A complete ban on certain speech content is usually regarded as the clearest example of an unjustified interference with free speech. In a previous decision dealing with public preaching, Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013), the High Court made it clear that a ban on such activities which was based on the content of what was said (rather than on traffic considerations, for example) would be invalid.

It should be noted in this context, then, that this is not simply a “free speech” case. Many who wish to protest or counsel outside abortion clinics do so on the basis of deeply held religious beliefs.

Freedom of Religion

Arguably this is another feature of the protests being held outside abortion clinics which should inform the decision of a court as to the nature of the “rights” being interfered with. Of course it has to be said that in the States, the restriction on Commonwealth legislation impairing the “free exercise” of religion imposed by s 116 of the Constitution is not binding. But in the ACT, as a Territory not a State, where one “protest zone” law has just been passed, it seems fairly clear that s 116 will be applicable, and may have a serious impact on the validity of such a law. (For discussion of the former doubts that were expressed as to whether s 116 was binding on the Territories, as opposed to the States, see my paper on “Religious Freedom in Australia” at p 8.)

In addition, as noted previously, both Victoria and the ACT have “Charters of Rights”, which include protection for religious freedom. And in Tasmania, the little-known s 46 of that State’s Constitution Act 1934 also provides explicit protection for religious freedom.

All of these religious freedom rights are, of course, subject to balancing with other rights. But at the very least the weight of both free speech rights, and religious freedom rights, especially when combined in a case like this, ought to give Parliaments cause to think very carefully before enacting geographically wide, and substantively broad, limitations on the rights of those citizens who believe they are not only helping pregnant women, but also saving the lives of their children, by polite offers of counselling and assistance outside clinics.

Finally, it is worth noting that this view, that wide “protest free zones” like that in Tasmania are probably constitutionally invalid, is also shared by one of the most recent other academic commentaries on the issue. Eleanor Jones, in “Implementing Protest-Free Zones around Abortion Clinics in Australia” (2014) 36 Sydney Law Review 169-184, expresses clear doubts about the validity of such laws, while apparently supporting their policy. She says:

Protests outside abortion clinics are poised to become the next example of political communication that is objectionable to a majority of Australians, but nonetheless protected from regulation by the freedom of political communication (at 170)…

the prospective constitutionality of the RHATA is uncertain (at 174)…

It is therefore unlikely that the provisions of the RHATA would survive in their entirety (at 182)…

there is little evidence to suggest that these protests are so frequent and unruly that access to abortion clinics is currently being disrupted to the extent that so wide an exclusion zone is necessary. (at 183)

It is true that Jones also suggests that a much narrower exclusion zone might be constitutionally valid (at one point she notes that the US Supreme Court has upheld as legitimate an exclusion zone of 4.5 metres – see p 171 n 16). But even this suggestion is made tentatively. There is real doubt here.

This makes the comments in this editorial from the Medical Journal of Australia, then, very misleading. In that opinion piece, noted previously, the authors, who are aiming to describe the law of Australia on the matter, state very clearly:

Constitutional law scholars generally agree that the Tasmanian provision can withstand any High Court challenge.

Their authority for this proposition? The article by Jones. I trust that the quotes provided above are enough to show that the claim that is made here is, to be frank, quite wrong. Jones casts serious doubts on the validity of the Tasmanian provision. The authors of the MJA piece also mis-state the operation of the test dealing with the implied freedom of political speech, referring to a “two-step” test, whereas the Jones article (written of course prior to McCloy but still valid on this point) notes that it is a “three stage test” (at 174).

Given these errors, it is perhaps not surprising to find others in that article, We are told that access of women to clinics is “often hindered by verbal and sometimes physical harassment”. Yet Jones, as noted above, suggests that this is not really a major problem in Australia. The editorial then asserts that attempts to curtail protests have failed because of the implied rights to freedom of political communication. No evidence is presented that this doctrine has so far been invoked in these cases, but if it had the so-called “solution” to the problem provided by the Tasmanian legislation would be useless, given that the Tasmanian Parliament, like all in Australia, are obliged to recognise this right.

In short, the enthusiasm expressed by the authors of the MJA editorial for the Tasmanian laws (an enthusiasm which, it seems fairly clear, would not be shared by all medical practitioners in Australia) is misplaced. It is to be hoped that Australian Parliaments pay much more careful attention in future to the rights of citizens who are wanting to exercise the freedoms of speech and religion our community regards as vital.