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Welcome
Neil Foster

Neil Foster

Law Professor

Neil is an evangelical Christian, an Associate Professor in law, a father and a grandfather. He has qualifications in both law and theology and teaches “Law and Religion” as an elective to later year law students.

He blogs at Law and Religion Australia

As foreshadowed in the press reports noted in my previous post, the ACT Government has now introduced a Bill designed to curtail the current religious freedom enjoyed by religious schools in the Territory to operate in accordance with their beliefs. The  Discrimination Amendment Bill 2018 (ACT) is an unwise proposal and it is likely that it would be invalid as contrary to Commonwealth law. I will assume the reader is familiar with the background to the Bill as noted in my previous post. Here I will just briefly indicate how it achieves its goals. The central provision is cl 6, which simply repeals s 33 of the Discrimination Act 1991.

Reports in the press note that that the ACT Government has announced its intention to “close a loophole” in discrimination laws by removing the capacity of religious schools to apply their religious beliefs in staffing decisions. The law being referred to is not a “loophole”, it is part of the fundamental architecture of discrimination law around Australia, with rare exceptions, and removing these provisions would not be a good idea.

This is the first part of a series of articles written by Neil Foster about the Ruddock Review's leaked contents. The subsequent articles can be accessed at Neil website, here.  

A media outlet here in Australia has released what it says are the 20 recommendations made by the Expert Panel on Religious Freedom chaired by the Hon Philip Ruddock. The Report itself was delivered to the Government in May 2018, but has not officially been released. Apparently the Government is planning to release the Report at the same time as announcing its official response. The main issue which has generated controversy during the last week, in which there was a selective leaking of some of the recommendations, were proposals dealing with the rights of religious schools to take into account the sexual orientation of students in certain areas. The changes proposed were not radical changes to the existing law, but were presented as such when first publicised. In this post I want to briefly set these recommendations in context and offer my preliminary response.

[An extraordinary claim before the Victorian Civil and Administrative Tribunal recently, Secular Party of Australia Inc. v the Department of Education and Training (Human Rights) [2018] VCAT 1321 (27 August 2018), alleged that a child at a public school should be prevented from wearing Islamic religious garb in the child’s own interests! Thankfully the claim failed, but the fact that the case could even be argued illustrates the pressure that some groups in society are placing on parents and children of faith.

Trinity Western University, an evangelical tertiary institution in British Columbia, has lost two cases it had brought protesting the decision of two Canadian Provincial Law Societies to not authorise graduates of their proposed Law School as able to practice in the Provinces. The reason for the denial of accreditation was that TWU requires students and staff to agree to a Community Covenant Agreement, which undertakes (among other things) that they will not engage while studying or working at TWU in “sexual intimacy that violates the sacredness of marriage between a man and a woman”.

In Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, 584 U. S. ____ (2018) (June 4, 2018), the US Supreme Court by 7-2 overturned previous decisions against a Christian cake maker, Jack Phillips, who had declined to make a wedding cake for a same sex wedding. While the basis of the decision of the majority is fairly narrow, the outcome is clearly correct, and even in the narrow reasons offered by Justice Kennedy, there are a number of important affirmations which support religious freedom.

Thursday, 24 May 2018 21:41

Face-Coverings and Testimony in Court

Should a Muslim woman who wears a face covering for religious reasons, be entitled to give evidence in court with her face covered? This important issue, which has been discussed in other common law jurisdictions, has now been considered in the NSW Court of Appeal, in Elzahed v State of New South Wales [2018] NSWCA 103 (18 May 2018). The Court concluded that no error had been shown in a ruling by a trial judge, that Ms Elzahad was not entitled to keep her face covered while testifying.

This is a paper I presented recently at an evening considering issues around euthanasia and assisted dying: Euthanasia Paper May 2018. It presents reasons why changing the law in these areas is not a good idea in the interests of society at large and the vulnerable sick and elderly in particular.

In a Federation like Australia, different jurisdictions (States and Territories) may have different rules on what amounts to “discrimination” or “vilification”, and how those things interact with religious freedom. One of the pressing issues here in recent years has been whether there will be a “race to the bottom” in freedom of speech on religious issues, with one jurisdiction in particular, Tasmania, raising deep concerns with a very broad prohibition on causing “offence” related to matters such as sexual orientation. Today the High Court of Australia, on appeal from NSW, has affirmed the decision of the NSW Court of Appeal that State and Territory “tribunals” (non-judicial panels usually used in discrimination issues) have no jurisdiction to impose penalties on residents of other Australian jurisdictions under their own local laws.

The recent decision of the England and Wales Court of Appeal in Pemberton v Inwood [2018] EWCA Civ 564 (22 March 2018) upholds what was in effect disciplinary action taken against a Church of England clergyman, the Reverend Canon Jeremy Pemberton, on account of his entering into a same-sex marriage. The decision is a sensible one which upholds the religious freedom of the Anglican church to operate in accordance with its fundamental religious beliefs.

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