Program: "Freedom of Religion: Challenges and Opportunities" Colloquium

Freedom of Religion: Challenges and Opportunities

Colloquium

University of Southern Queensland (Toowoomba Campus: Q501)

22 November 2019

PROGRAM

9.15	Welcome Professor Reid Mortensen
9.30 10.00 10.30 11.00 11.30	Convenor: Jeremy Patrick Equality and Religious Freedom I (Chair: Jeremy Patrick) Issues in Conscientious Objection: How Can Judges Decide Whether You are Cooperating in Evil? Mr. Patrick Quirk, Thomas More Law School Should Religious Schools Should Be Allowed to Discriminate? Mr. Michael Dimarco A time for everything. Time to revisit a bill of rights? Kim Bailey, Charles Sturt University Morning Tea International Perspectives (Chair: Sarah McKibbin) Law Society of British Columbia v Trinity Western University: The Supreme Court of Canada Tries (and Fails) to Balance Equality and Religious Freedom Dr. Matt Watson, University of Queensland
12.00	Religion, Culture and the Constitutionality of the Doctrine of Entanglement for the South African Context Professor Shaun de Freitas, University of the Free State
12.30	Title TBD Dr. Dani Muhtada, Universitas Negeri Semarang
1.00 1.45 2.15 2.45 3.15 3.45 4.15	Lunch Theoretical Perspectives (Chair: Timothy Nugent) An Oral Defence: Advancing a Tolerant, Secular Commonwealth: Anti-discrimination Law Mr. Matthew Harradine “Mrs Murphy”: A Window into Property Law and Religious Freedom Mrs. Julie Copley, University of Southern Queensland Contributions and Challenges of Muslims in Multicultural Australia Professor Shahjahan Khan, University of Southern Queensland Afternoon Tea Equality and Religious Freedom II (Chair: Reid Mortensen) Drawing the Boundaries: Exploring the Current (and Future!) Scope of the Religious Bodies Exemptions in State Antidiscrimination Laws  Dr. Sarah Moulds, University of South Australia Religious Freedom in the Workplace and the Folau Effect Dr. Alex Deagon, Queensland University of Technology
4.45	Closing and drinks

Colloquium Dinner: Time & Location TBD

Organised by the USQ Law, Religion, and Heritage Research Program Team

ABSTRACTS

Equality and Religious Freedom I

Mr. Patrick Quirk, Thomas More Law School

Issues in Conscientious Objection: How Can Judges Decide Whether You are Cooperating in Evil?

David Oderberg is a recognized philosopher whose work was recently cited in the US Supreme Court landmark case of Burwell v Hobby Lobby (2014). Oderberg's 2018 book on conscience protection - “Opting Out” - has engaged lawyers and policy experts by suggesting a Conscience Protection Bill, which could be written into all “equality laws.” This paper will explore Oderberg’s suggestion with emphasis on the problems that can arise when judges attempt to make decisions about “theology” and the extent of acceptable cooperation in a wrongful action.

Mr. Michael Dimarco

Should Religious Schools Should Be Allowed to Discriminate?

“Religious schools should be allowed to discriminate” was the issue put to debaters at this year’s Inaugural Annual Religious Liberty Debate. This Presentation is an overview of the issues relevant to that debate. It addresses the intersection of various rights, the Ruddock Review, the legal framework pertaining to the topic and the issue of language and the effect that certain words can have on this debate. It also suggests the exceptions-based approach currently enforced to address this issue, is insufficient and that reform is needed to adequately address this complicated and important issue.

Kim Bailey, Charles Sturt University

A time for everything. Time to revisit a bill of rights?

For those who believe, religious faith is the expression of how they understand self and the world. Freedom to express faith must be conceptualised as a basic human right. With the changing landscape of identity politics, safe spaces and the new tolerance, freedom of expression of faith is under attack. This right can no longer be assumed to exist as a democratic principle in Australian society. As our legislature continues to grapple with defending religious expression through “shield” legislation, the time is ripe to reconsider whether a constitutionally entrenched bill of rights is a better solution.  This paper will critically consider the position that faith groups have historically taken on a bill of rights, and offer argument for why a bill of rights needs to come back into the debate.

International Perspectives Dr. Matt Watson, University of Queensland Law Society of British Columbia v Trinity Western University: The Supreme Court of Canada Tries (and Fails) to Balance Equality and Religious Freedom My article analyses the Supreme Court of Canada’s decision in the case of Law Society of British Columbia v Trinity Western University, which forced the court to grapple with the question of how to balance equality and religious freedom. I argue that the reasoning of several justices displayed an impoverished understanding of the right to freedom of religion. I challenge the finding of the majority that the law societies’ decisions to refuse accreditation advanced the objectives of maintaining equal access to and diversity within the legal profession, and maintaining public confidence in that profession. I also consider—and ultimately reject—the argument that by accrediting the proposed TWU law school the law societies would have been conveying a symbolic message that intolerably denies the dignity and equality of LGBTQ+ individuals.

Professor Shaun de Freitas, University of the Free State Religion, Culture and the Constitutionality of the Doctrine of Entanglement for the South African Context The South African judiciary supports the protection of the autonomy of religious associations. The doctrine of entanglement (or non-entanglement) forms part of the said protection which means that the courts are hesitant to become entangled in the doctrines held by a religious association. The application of the doctrine of entanglement has recently been criticised for supposedly resulting in religious practices being adjudged separately (in line with the doctrine) and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be constitutionally compliant. In response to the above, it is argued that the doctrine of entanglement is nothing more nor less than the South African Constitution’s democratic ideals and aspirations towards the protection as well as the furtherance of diversity, and that the said doctrine should therefore not be understood as presupposing that religion be prioritised above that of culture. This is also of importance to democratic and by implication plural societies beyond South Africa.

Dr. Dani Muhtada, Universitas Negeri Semarang Title TBD Theoretical Perspectives Mr. Matthew Harradine An Oral Defence: Advancing a Tolerant, Secular Commonwealth: Anti-discrimination Law This presentation offers an examination of (and an opportunity to question) the content from a Master of Laws thesis to be completed in 2019. The thesis responds to the High Court’s construction of the free exercise clause of section 116 of the Australian Constitution and the dichotomy of ‘’freedom and equality’’ in Australia. The thesis does this by adopting a legalistic understanding of ‘’religious freedom’’, grounded in the language of ‘civilised religion’ and the Commonwealth as a ‘moral authority’. The impact of federal anti-discrimination law on religious freedom is considered and conclusions drawn on the constitutional validity of those laws. Mrs. Julie Copley, University of Southern Queensland “Mrs Murphy”: A Window into Property Law and Religious Freedom A place to be is essential to life and a well-lived life. In each Australian State and Territory, a well-established system of property includes relevant anti-discrimination provisions, but release by the Federal Attorney-General of a draft Religious Discrimination Bill 2019 raises questions about ‘property’ and its distribution under State and Territory frameworks. Should it be possible, for example, for “Mrs Murphy” whose dwelling is home also to three families living independently of each other to rent only to fellow Catholics? When ‘justice’ confronts ‘property’, theory is capable of ensuring both distributive and corrective justice. Engagement with theory provides essential conceptual language and informs legislative choice. Professor Shahjahan Khan, University of Southern Queensland Contributions and Challenges of Muslims in Multicultural Australia Australia is a vibrant migrant nation where vast majority of the population are either migrants or descendants of migrants. In the recent years, multiculturalism has become a well accepted narrative for all Australians. Although Australia is a secular democracy, there is official recognition and respect for all religions, languages and cultures.  Australian Muslims have contributed significant in the area of science, technology, food, healthcare, international trade, education, halal business, sports, culture and security. Apart from a very small number of refugees, majority of Muslims in Australia are highly skilled professionals, and well placed among in their peers. Equality and Religious Freedom II Dr. Sarah Moulds, University of South Australia Drawing the Boundaries: Exploring the Current (and Future!) Scope of the Religious Bodies Exemptions in State Antidiscrimination Laws  Australia is in the midst of an impassioned debate about how to appropriately balance freedom from discrimination with freedom of religious expression.  At the State and Territory level, uncertainty surrounds the content and operation of relevant anti-discrimination laws, and significant differences exist across jurisdictions.  These differences have both normative and practical implications for those seeking to exercise their right to freely express their religion, and for those demanding protection from discrimination.  In this paper, I briefly summarise the existing State and Territory provisions and reflect on the consequences of federal-led reform agendas on the scope of these laws. Dr. Alex Deagon, Queensland University of Technology Religious Freedom in the Workplace and the Folau Effect

Israel Folau was dismissed as an employee of Rugby Australia after expressing controversial religious views on social media. Some have characterised this as a simple contractual issue, while others see it as symptomatic of a more fundamental religious freedom problem. In this paper I approach the case from the latter perspective, considering the central challenge raised by the Folau case, which is the extent to which an employer can govern religious speech by an employee. I propose that it can be appropriate for an employer to restrict the religious speech of an employee, subject to certain conditions that may not have been satisfied in the Folau case.

Gray on "Good Faith--The Incomplete Legal Transplant"

USQ School of Law and Justice Professor Anthony Gray has published a chapter in an edited collection.  The essay is titled "Good Faith--The Incomplete Legal Transplant" and appears in Dr. Vito Breda's book Legal Transplants in East Asia and Oceania.  Here is a summary of the chapter from the publisher's website:

This chapter will consider a legal transplant that is potentially still occurring – the broad recognition of notions of ‘good faith’ in relation to contracts. Whilst notions of good faith surround early conceptions of contractual relations, as will be seen, the common law, whilst initially apparently accepting good faith as part of the law of contract, set its face against such a doctrine, except in relation to insurance contracts. That resistance had been stoic for many years, until finally in recent years, the United Kingdom Supreme Court accepted the doctrine as a principle applicable to contracts, at least to some extent. In so doing, it followed in the footsteps of the Canadian Supreme Court, which finally recognized a general doctrine of good faith earlier in the same year. The doctrine is broadly recognized in the United States.

Breda on "Legal Transplants in East Asia and Oceania"

USQ School of Law and Justice Senior Lecturer Dr. Vito Breda has edited a new collection of essays titled Legal Transplants in East Asia and Oceania.  The book was published in June of this year by Cambridge University Press, and has a website here.  According to the publisher,

This volume provides a unique overview of methodologies that are conducive to a successful legal transplant in East Asia and Oceania. Each chapter is drafted by a scholar who holds direct professional experience on the legal transplant considered and has a distinctive insight into the pragmatic difficulties related to grafting an alien institution into a legal tradition. The range of transplants includes the implementation of contractual obligations, the regulation of commercial investments and the protection of the environment. The majority of recent legal reforms in these geographical areas have aimed at improving national economic performance and fostering trade and have been directly inspired by European and North American institutional experiences. There is also, however, a tendency to couple economic reforms, aimed at attracting foreign investment, with constitutional reforms that improve the protection of individual rights, the environment and the rule of law.