{"title":"The Continued Existence of the Crime of Blasphemy in Australia","authors":"Luke Beck","doi":"10.55803/g21j","DOIUrl":"https://doi.org/10.55803/g21j","url":null,"abstract":"","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127109598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article I evaluate the capacity for the religious exemptions in the Sex Discrimination Act (Cth) to provide peaceful coexistence through reconciling freedom and discrimination. The exemptions provide that religious educational institutions can directly discriminate against staff and students on the basis of sexual orientation and gender identity if they do so in good faith and in accordance with their religion to avoid injury to the religious susceptibilities of adherents to that religion. The exemptions fail to provide peaceful coexistence through reconciling freedom and discrimination for two reasons. First, the exemptions are offensively and irrelevantly targeted at sexual minorities, undermining the dignity of diverse staff and students. Second, in their form as exemptions, they frame the communal rights of people of faith as a grudging exception to a general prohibition against discrimination, positioning religious institutions as seeking a special privilege to maliciously make decisions based on prejudice. Reframing the exemptions as positive associational rights simultaneously addresses these twin failures by 1) removing the stigmatic focus on sexual minorities, 2) supporting equality, and 3) providing a necessary and robust legal protection for religious educational institutions to select and regulate members of their community to maintain a religious ethos, thus supporting religious freedom. The recognition of positive rights for religious institutions contributes to peaceful coexistence by promoting diverse approaches to the public good while avoiding the hostile targeting of sexual minorities.
{"title":"Reconciling Freedom and Equality for Peaceful Coexistence: On the Need to Reframe the Religious Exemptions in the Sex Discrimination Act","authors":"Alex Deagon","doi":"10.55803/e683r","DOIUrl":"https://doi.org/10.55803/e683r","url":null,"abstract":"In this article I evaluate the capacity for the religious exemptions in the Sex Discrimination Act (Cth) to provide peaceful coexistence through reconciling freedom and discrimination. The exemptions provide that religious educational institutions can directly discriminate against staff and students on the basis of sexual orientation and gender identity if they do so in good faith and in accordance with their religion to avoid injury to the religious susceptibilities of adherents to that religion. The exemptions fail to provide peaceful coexistence through reconciling freedom and discrimination for two reasons. First, the exemptions are offensively and irrelevantly targeted at sexual minorities, undermining the dignity of diverse staff and students. Second, in their form as exemptions, they frame the communal rights of people of faith as a grudging exception to a general prohibition against discrimination, positioning religious institutions as seeking a special privilege to maliciously make decisions based on prejudice. Reframing the exemptions as positive associational rights simultaneously addresses these twin failures by 1) removing the stigmatic focus on sexual minorities, 2) supporting equality, and 3) providing a necessary and robust legal protection for religious educational institutions to select and regulate members of their community to maintain a religious ethos, thus supporting religious freedom. The recognition of positive rights for religious institutions contributes to peaceful coexistence by promoting diverse approaches to the public good while avoiding the hostile targeting of sexual minorities.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121536915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: \"Law and Religion in the Liberal State\"","authors":"J. Patrick","doi":"10.55803/h62v","DOIUrl":"https://doi.org/10.55803/h62v","url":null,"abstract":"","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"162 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133250443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review of The Transgender Issue: An Argument for Justice","authors":"J. Patrick","doi":"10.55803/x044i","DOIUrl":"https://doi.org/10.55803/x044i","url":null,"abstract":"","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121536652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the aftermath of the High Court’s decision in Pell v The Queen to quash the guilty verdicts and enter verdicts of acquittal in their place, there has been considerable public discussion and academic commentary on the respective roles of the jury and appellate courts, with particular focus on the jury as the tribunal of fact. Pell v The Queen was a high-profile case involving sexual assault charges against a Cardinal of the Roman Catholic Church, when just a year earlier the Royal Commission into Institutional Responses to Child Sexual Abuse had published its final report which was dominated by abuses perpetrated in the Roman Catholic Church. This article considers the test for the unreasonableness ground of appeal set out by the High Court in M v The Queen, which is reflected in s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’; and concludes that the High Court was correct to adopt Weinberg JA’s dissenting judgment in the Victorian Court of Appeal which in the author’s view was compelling.
高等法院在佩尔诉女王案(Pell v . the Queen)中撤销有罪判决，代之以无罪判决。在此之后，公众对陪审团和上诉法院各自的角色进行了大量的讨论和学术评论，特别关注陪审团作为事实法庭的作用。佩尔诉女王案是一个备受瞩目的案件，涉及对罗马天主教会红衣主教的性侵犯指控，就在一年前，皇家委员会对儿童性虐待的机构反应发表了最终报告，其中主要是罗马天主教会的虐待行为。该条审议了高等法院在M诉女王案中提出的不合理上诉理由的检验标准，这反映在《2009年刑事诉讼法》(Vic)第276(1)(a)条中，即“根据全部证据，陪审团是否可以排除合理怀疑地相信被告有罪”;并得出结论，高等法院在维多利亚上诉法院采纳Weinberg JA的反对判决是正确的，该判决在发件人看来是令人信服的。
{"title":"Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts","authors":"A. Hemming","doi":"10.55803/m39f","DOIUrl":"https://doi.org/10.55803/m39f","url":null,"abstract":"In the aftermath of the High Court’s decision in Pell v The Queen to quash the guilty verdicts and enter verdicts of acquittal in their place, there has been considerable public discussion and academic commentary on the respective roles of the jury and appellate courts, with particular focus on the jury as the tribunal of fact. Pell v The Queen was a high-profile case involving sexual assault charges against a Cardinal of the Roman Catholic Church, when just a year earlier the Royal Commission into Institutional Responses to Child Sexual Abuse had published its final report which was dominated by abuses perpetrated in the Roman Catholic Church. This article considers the test for the unreasonableness ground of appeal set out by the High Court in M v The Queen, which is reflected in s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’; and concludes that the High Court was correct to adopt Weinberg JA’s dissenting judgment in the Victorian Court of Appeal which in the author’s view was compelling.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"191 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132222591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The theory explaining different types of state–religion or state–church relationships is a fundamental part of the study of law and religion. At the tertiary level this is typically taught via the use of models which present a relationship between the different types of state–religion or state–church relationships and freedom of religion. These models have a number of shortcomings and tend to be used as a taxonomy rather than as an aid to understanding. In 2021, I piloted a new approach to teaching this model in a Law and Religion unit. This paper outlines the inspiration behind my approach in 2021, the steps involved in the activity, my reflections on the success of the activity, and my proposed refinements for 2022.
{"title":"Law and Religion in the Classroom: Teaching Church-State Relationships","authors":"Renae Barker","doi":"10.55803/o79u","DOIUrl":"https://doi.org/10.55803/o79u","url":null,"abstract":"The theory explaining different types of state–religion or state–church relationships is a fundamental part of the study of law and religion. At the tertiary level this is typically taught via the use of models which present a relationship between the different types of state–religion or state–church relationships and freedom of religion. These models have a number of shortcomings and tend to be used as a taxonomy rather than as an aid to understanding. In 2021, I piloted a new approach to teaching this model in a Law and Religion unit. This paper outlines the inspiration behind my approach in 2021, the steps involved in the activity, my reflections on the success of the activity, and my proposed refinements for 2022.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114877828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a lot of controversy about section 38(3) of the Sex Discrimination Act 1984 (Cth) (‘SDA’) which permits discrimination by faith-based schools against students on the basis of their sexual orientation and gender identity. This article explains the background to this provision, which in its present form was the result of amendments in 2013. It also explains the problems that would arise if the subsection were repealed without making other amendments to the SDA. Faith leaders have consistently made it clear that they do not want the right to expel or discipline students on the basis of sexual orientation or gender identity and so support the repeal of s 38(3). However, other amendments are needed to protect the rights of faith-based schools. These are, in any event, necessary to buttress the (very doubtful) constitutional validity of the 2013 amendments insofar as they concern gender identity. There is also a need for broader changes to the SDA to address the confusion about how the law on gender identity applies to children and adolescents. It is unclear when a child gains a legally protected gender identity; whether a clinical diagnosis of gender dysphoria is needed; what respect needs to be given to the views of parents, even with a Gillick-competent adolescent; and what professional discretion can be exercised by school principals when they consider that supporting the social transition of an adolescent is not in his or her best interests. The SDA needs to be amended to make clear that it does not require schools to support and affirm the ‘social transition’ of a young person against the wishes of a parent or when the school considers in good faith that this is not in the best interests of the young person. Difficult pastoral issues need to be left to professional judgment, drawing upon the best advice available from the young person’s treating medical and mental health practitioners.
{"title":"Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions","authors":"P. Parkinson","doi":"10.55803/f61m","DOIUrl":"https://doi.org/10.55803/f61m","url":null,"abstract":"There is a lot of controversy about section 38(3) of the Sex Discrimination Act 1984 (Cth) (‘SDA’) which permits discrimination by faith-based schools against students on the basis of their sexual orientation and gender identity. This article explains the background to this provision, which in its present form was the result of amendments in 2013. It also explains the problems that would arise if the subsection were repealed without making other amendments to the SDA. Faith leaders have consistently made it clear that they do not want the right to expel or discipline students on the basis of sexual orientation or gender identity and so support the repeal of s 38(3). However, other amendments are needed to protect the rights of faith-based schools. These are, in any event, necessary to buttress the (very doubtful) constitutional validity of the 2013 amendments insofar as they concern gender identity. There is also a need for broader changes to the SDA to address the confusion about how the law on gender identity applies to children and adolescents. It is unclear when a child gains a legally protected gender identity; whether a clinical diagnosis of gender dysphoria is needed; what respect needs to be given to the views of parents, even with a Gillick-competent adolescent; and what professional discretion can be exercised by school principals when they consider that supporting the social transition of an adolescent is not in his or her best interests. The SDA needs to be amended to make clear that it does not require schools to support and affirm the ‘social transition’ of a young person against the wishes of a parent or when the school considers in good faith that this is not in the best interests of the young person. Difficult pastoral issues need to be left to professional judgment, drawing upon the best advice available from the young person’s treating medical and mental health practitioners.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129578557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 38 of the Sex Discrimination Act 1984 (Cth) provides exceptions to various non-discrimination obligations of the SDA so that those obligations do not burden religious educational institutions. Legal controversy exists over whether, in light of section 38, a State law that imposes sexual orientation and/or gender identity non-discrimination obligations on religious schools is constitutionally valid under section 109 of the Australian Constitution. In Volume 1 of the Australian Journal of Law and Religion, Associate Professor Neil Foster argued that such a State law would not be valid. This article, a rejoinder to Foster, considers the jurisprudence of the High Court on section 109, as well as other relevant case law. After considering the case law, it concludes that State laws that impose sexual orientation and/or gender identity non-discrimination obligations on religious schools can be consistent with section 38 of the SDA and thus not rendered invalid due to section 109 of the Australian Constitution.
{"title":"May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster","authors":"N. Butler","doi":"10.55803/c441p","DOIUrl":"https://doi.org/10.55803/c441p","url":null,"abstract":"Section 38 of the Sex Discrimination Act 1984 (Cth) provides exceptions to various non-discrimination obligations of the SDA so that those obligations do not burden religious educational institutions. Legal controversy exists over whether, in light of section 38, a State law that imposes sexual orientation and/or gender identity non-discrimination obligations on religious schools is constitutionally valid under section 109 of the Australian Constitution. In Volume 1 of the Australian Journal of Law and Religion, Associate Professor Neil Foster argued that such a State law would not be valid. This article, a rejoinder to Foster, considers the jurisprudence of the High Court on section 109, as well as other relevant case law. After considering the case law, it concludes that State laws that impose sexual orientation and/or gender identity non-discrimination obligations on religious schools can be consistent with section 38 of the SDA and thus not rendered invalid due to section 109 of the Australian Constitution.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132476540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the course of the early twentieth century, Muslim majority countries, including Indonesia, attempted to transform Sharia into Islamic law. This transformation has encompassed diverse orientations and interests of Islamic scholars and the (colonial) state. The transformation in Indonesia deserves a special inquiry as Indonesia is a nation with a high degree of cultural heterogeneity. This article addresses the extent to which the interplay between Islamic authorities and the state has shaped the coming into being of Islamic law and its judicial institutions. I argue that Islamic authorities and the state have simultaneously taken part in revising and articulating the content, meaning, and scope of Islamic law. Islamic authorities had to adjust Islamic law with modern law and national sovereignty to make its norms possible. However, for Muslims, the issue was not only the formation of the national legal system but rules on the application of matrimonial matters as stipulated in Islamic legal doctrines. Through Islamic family law, devout Muslims found it important to claim a clearer position of the relationship between Islam and state authority.
{"title":"The Formation of Islamic Law in Indonesia: The Interplay between Islamic Authorities and the State","authors":"Muhammad Fauzi","doi":"10.55803/t26e","DOIUrl":"https://doi.org/10.55803/t26e","url":null,"abstract":"In the course of the early twentieth century, Muslim majority countries, including Indonesia, attempted to transform Sharia into Islamic law. This transformation has encompassed diverse orientations and interests of Islamic scholars and the (colonial) state. The transformation in Indonesia deserves a special inquiry as Indonesia is a nation with a high degree of cultural heterogeneity. This article addresses the extent to which the interplay between Islamic authorities and the state has shaped the coming into being of Islamic law and its judicial institutions. I argue that Islamic authorities and the state have simultaneously taken part in revising and articulating the content, meaning, and scope of Islamic law. Islamic authorities had to adjust Islamic law with modern law and national sovereignty to make its norms possible. However, for Muslims, the issue was not only the formation of the national legal system but rules on the application of matrimonial matters as stipulated in Islamic legal doctrines. Through Islamic family law, devout Muslims found it important to claim a clearer position of the relationship between Islam and state authority.","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123136001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Liberal and Post-Liberal Futures of Law and Religion in Australia","authors":"Joel Harrison","doi":"10.55803/f50y","DOIUrl":"https://doi.org/10.55803/f50y","url":null,"abstract":"","PeriodicalId":118952,"journal":{"name":"Australian Journal of Law and Religion","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121370551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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