Opposing same-sex marriage is not "vilification"

The recent NSW decision of Passas v Comensoli [2019] NSWCATAP 298 (18 December 2019) provides an example of someone who has been penalised for “homosexual vilification” as a result of comments concerning same-sex marriage. However, it does provide clarification that merely to express disagreement with the introduction of same sex marriage does not amount to such vilification under NSW law.

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Iowa University Christian student group reinstated by Federal judge

A student Christian group at the University of Iowa has been reinstated as a registered student organisation by a US Federal District Court Judge, after previously having its status revoked by University authorities. The student group, Business Leaders in Christ (“BLinC”), had been penalised because it would not agree to appoint to its leadership a same-sex attracted student, who said that they would not undertake to comply with the group’s commitment to Biblical sexual values. The University claimed that this was a breach of its Policy on Human Rights, forbidding discrimination on the basis of, among other things, sexual orientation. BLinC claimed, however, that the issue was not the student’s orientation, but their express refusal to modify their behaviour to accord with Biblical norms. The case illustrates a number of important issues in this area.

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No religious discrimination where school has optional clause in creed

A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education [2017] WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.

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Can kids tell other kids about Jesus at school?

Note: this post has been updated in July 2017 to note more recent developments.

Astonishingly, the answer to the question posed here, provided by the Queensland Department of Education and Training was: No! In their latest reviews of material used in Special Religious Instruction (SRI) offered in public schools in that State, they assert as follows:

While not explicitly prohibited by the [relevant legislation], nor referenced in the [Departmental published] RI policy statement, the Department expects schools to take appropriate action if aware that students participating in RI are evangelising to students who do not participate in their RI class, given this could adversely affect the school’s ability to provide a safe, supportive and inclusive environment for all students.

(This statement is found both in the Report on the Review of the GodSpace Religious Instruction Materials, March 2017, at para 3.1.1 on p 5, and in the Report on the Review of the ACCESS ministries’ Religious Instruction Materials, Feb 2017, at para 3.1.1 on p 6. Update: the two reviews are also linked on a page headed “Religious instruction policy statement“, which indicates it was updated on 25 May 2017. There seems no doubt that schools would see this as part of authoritative guidance from the Education Department.)

In this post I want to explain why this over-reaching bureaucratic imposition is not justified by the law governing the Department’s activities, and indeed is probably illegal.

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Religious Free Speech in Australia: CDF v Gaynor

Can a reserve member of the Armed Forces make controversial, religiously motivated, political comments on a private website contrary to Defence Force policy? Sadly, the answer provided by the recent decision in Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017) is, No, not without having their service terminated.

I mentioned the earlier decision of a single judge of the Federal Court in these proceedings in a previous post over a year ago: see Free speech and religious freedom even for ADF members (Dec 10, 2015). In that earlier decision Buchanan J ruled that Major Bernard Gaynor’s termination was unlawful, because in applying the relevant regulations the Chief of the Defence Force had breached the implied “freedom of political communication” under the Commonwealth  Constitution. Now the Full Court of the Federal Court (Perram, Mortimer & Gleeson JJ) has overturned that previous decision and upheld the termination. The decision and the way that the “freedom of political communication” is dealt with have disturbing possible consequences for free speech in Australia on controversial political topics, many of which are raised these days by religious beliefs which run contrary to “orthodox” opinions in society at large.

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Insulting religion and legal consequences

Two recent news items raised interesting issues of free speech about religion and its legal consequences. One was a comment by Mr Peter FitzSimons; the other a report about an “anti-Muslim” banner being flown at a football game.

1. Peter FitzSimons

Peter FitzSimons, sports and general social commentator, is well known in Australia for his opposition to religion generally. In two articles this week he commented on the decision of a Mormon rugby league footballer, Will Hopoate, not to play or train on Sundays on the basis of his religious convictions about observing the Sabbath: see “Join me on a walk through the minefield of Will Hopoate’s decision not to play NRL on Sundays” (Sydney Morning Herald, 30 March 2016); and “The questions thrown up by Will Hopoate’s decision not to play in the NRL on Sundays” (SMH, 2 April 2016).

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Free speech and the plebiscite (part 2)

An article in today’s press, “Call to suspend hate laws ‘disgraceful’: Gillian Triggs” reports comments of the Australian Human Rights Commission President Gillian Triggs on proposals to protect free speech in the same sex marriage plebiscite, which I commented on yesterday. As a number of the points made in today’s article were not dealt with in yesterday’s blog, I thought it might be helpful to provide a response. Readers should of course read the previous post first, to get the proper context.

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