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Australian Journal of Law and Religion- vol 6

The latest volume of the Australian Journal of Law and Religion has been published (and is freely available online here.) The Table of Contents is below- always worth reading!

Contents– Volume 6, 2025

Editorial                                                                                                                                  i

Articles

Modelling the Anchor and Range of State-Religion Relationships in Australia and Italy: Towards a New Understanding of State-Religion Typologies Renae Barker & Tania Pagotto                      1

Skilful Navigators or Guerrilla Subversives? Accommodating Colleges of Islamic Higher Education in the West Salim Farrar                           27

Maximising or Determining Rights? On Using (and Discarding) Statutory Exceptions Joel Harrison                          50

A Legal Education ‘Born From the Heart of the Church’: Reflections of a Catholic Law School Dean Michael Quinlan                     66

Comments

Australia’s Culture of Death: Rejecting the ‘Sanctity of Life’ Principle Gabriël Moens                        80

The Australian Catholic University and Challenges after the 7 October Hamas Massacre Suzanne D. Rutland                87

Book Reviews

Religious Liberty in a Polarized Age by Thomas C. Berg  Jeremy Patrick                        89

The Crisis of Civil Law: What the Bible Teaches about Law and What It Means Today by Benjamin B. Saunders David VanDrunen                   92

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The NSW Conversion Practices law, religious freedom and Government “guidance”

The Conversion Practices Ban Act 2024 (NSW) (“the Act”) is now in force, having commenced operation on 4 April 2025. I have previously posted a paper expressing concerns about the operation of the Act in relation to religious freedom. In this post I want to re-iterate briefly some of those concerns, and comment on “guidance” on the operation of the Act provided by NSW government officials.

I commend the previous paper to readers for more details. But the following are some extracts which may help to set the scene for my comments on the NSW government guidance. Below I will be referring to the “Frequently Asked Questions” (“FAQ”) page produced by “Anti-Discrimination NSW” (ADNSW)- the version I am commenting on was dated 7 April 2025. (ADNSW is the “online identity” of the body formally known as the “Anti-Discrimination Board” established under the Anti-Discrimination Act 1977 (NSW); the President of the Board receives initial complaints under the Act- see s 14- and the Board has a number of other functions under the Act.)

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“Hate speech” and religious freedom- recent developments in Australia

Recently there have been a number of legislative moves or proposals attempting to deal with issues around the area of “hate speech”. The term of course is problematic- we will try to unpack it shortly. But the context, in Australia at least, is the shocking rise in the number of anti-semitic slogans and actual violence being seen in the last few months. Insults have been daubed on buildings and cars, fires lit at buildings associated with the Jewish community. And more recently, we have the shocking spectacle of two nurses from Bankstown Hospital saying on a video which has gone all over the world, that they would either like to kill their Israeli patients, or have already done so!

Part of the response of governments, at the Federal and State level, has been to either enact or propose laws punishing “hate speech”. The term itself is ambiguous. Does it mean speech “motivated” by hate? Or speech expressing hate? Or speech encouraging others to hate? I think we can all agree that, at one end of a spectrum, speech urging commission of violence against others should be unlawful. But what about expressing disagreement with moral choices made about sexual activity? Such speech might not be motivated by hate, but by concern for the bad effects of the behaviour, including contravening of divine law. Yet it might be perceived to be “hateful” by some who hear it.

It is regularly asserted that religiously based violence is somehow connected to speech insulting people on the basis of their religion. Yet some scholars note that there is little evidence produced that this is actually the case- that there is in truth no clear causal connection between speech of this sort and the issuing of threats or perpetration of violence.

Still, let’s concede that such is possible. It may be that regular assertions about how terrible people from a certain religious background are, will “normalise” the idea that threats and violence are appropriate responses. But will laws against such speech actually reduce the threats and violence? Or will they simply result in the speech being hidden from the community before it erupts in the actual acts?

The other problem with hate speech laws, of course, is that there is a serious danger that punishing speech on religious topics will unduly impair free speech on such topics generally. In the rest of this post I want to mention three recent Australian legislative initiatives on “hate speech” and note their possible impact on religious freedom. One is a new provision of Federal law which has already commenced. Second, I will be noting some changes that have been enacted and may commence soon under NSW law. Finally, I will briefly note some concerning legislation currently before the Victorian Parliament.

Before I do so, though, let me be very clear. The right to religious freedom cannot include the right to advocate for physical violence against other members of the community, nor of course a right to actual commit such violence or issue threats of such violence. Note that I have added the word “physical” here to be clear about the sort of “violence” I am referring to. The word “violence” should not be extended in metaphorical directions to refer to “criticising someone’s moral choices” or “upsetting someone”. These matters are not appropriately dealt with by the law. But no community can tolerate physical violence or threats against other members of the community justified by religious beliefs. As we will see, some recent laws are generally in the appropriate area of preventing actual violence; others are more problematic.

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Religious faith, medical procedures and minors- H v AC

One of the most difficult areas to navigate in the intersection between law and religion is the dilemma that is faced by a court when asked to adjudicate on differing opinions about medical treatment of young people, when objections to medical treatment are based on religious views. This is an area where a court, when asked to adjudicate, will have to weigh up different interests of the minor- bodily health, and being able to make decisions in accordance wth their faith.

Many such cases have arisen in based on objections to blood transfusions by Jehovah’s Witnesses. But in this post I want to note a careful decision on the issues which was handed down early last year, where the young person involved was from a “mainstream” Protestant church, and was strongly of the view that they had been healed miraculously and that no further treatment was needed. The decision was that of Meek J in the NSW Supreme Court in H v AC [2024] NSWSC 40 (2 February 2024). An important part of the case is that his Honour clearly understood and explained the religious views of the young person, “AC”, in coming to his decision.

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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)