religion

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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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“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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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)