Welcome to the electronic edition of Freedom of Religion under Bills of Rights. The book opens with the bookmark panel and you will see the contents page. Click on this anytime to return to the contents. You can also add your own bookmarks. Each chapter heading in the contents table is clickable and will take you direct to the chapter. Return using the contents link in the bookmarks. The whole document is fully searchable. Enjoy. Freedom of Religion under Bills of Rights For our families Freedom of Religion under Bills of Rights Edited by Paul Babie and Neville Rochow Published in Adelaide by University of Adelaide Press Barr Smith Library The University of Adelaide South Australia 5005 [email protected] www.adelaide.edu.au/press The University of Adelaide Press publishes externally refereed scholarly books by staff of the University of Adelaide. It aims to maximise the accessibility to its best research by publishing works through the internet as free downloads and as high quality printed volumes on demand. Electronic Index: this book is available from the website as a down-loadable PDF with fully searchable text. Please use the electronic version to serve as the index. © 2012 The Authors This book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or review as permitted under the Copyright Act, no part may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission. Address all inquiries to the Director at the above address. For the full Cataloguing-in-Publication data please contact National Library of Australia ISBN (electronic) 978-0-9871718-1-8 ISBN (paperback) 978-0-9871718-0-1 Book design: Midland Typesetters Cover design: Emma Spoehr, John Emerson, Paul Babie Paperback printed by Griffin Press, South Australia Contents Acknowledgments vii List of Contributors ix Foreword by The Hon Sir Anthony Mason AC KBE: Human Rights and Courts xi INTRODUCTION 1 Protecting Religious Freedom under Bills of Rights: Australia as Microcosm 1 Paul Babie and Neville Rochow SETTING THE SCENE 2 How Religion Constrains Law and the Idea of Choice 12 Ngaire Naffine 3 Is the Emperor Wearing the Wrong Clothes? Human Rights and Social Good in the Context of Australian Secularity: Theological Perspectives 29 Bruce Kaye 4 Anniversary Overlap: Or What happens when St Paul Meets the Universal Declaration of Human Rights 51 Alan Cadwallader CONTEMPORARY FREEDOM OF RELIGION ISSUES 5 Defamation and Vilification: Rights to Reputation, Free Speech and Freedom of Religion at Common Law and under Human Rights Laws 63 Neil Foster 6 Should an Australian Bill of Rights Address Emerging International Human Rights Norms? The Challenge of ‘Defamation of Religion’ 86 Robert C Blitt 7 Christian Concerns about an Australian Charter of Rights 117 Patrick Parkinson 8 Apostasy in Islam and the Freedom of Religion in International Law 152 Asmi Wood v Freedom of Religion under Bills of Rights COMPARATIVE EXPERIENCE WITH FREEDOM OF RELIGION Europe 9 Political Culture and Freedom of Conscience: A Case Study of Austria 172 David M Kirkham 10 The Sky is Falling if Judges Decide Religious Controversies! – Or is it? The German Experience of Religious Freedom Under a Bill of Rights 190 Cornelia Koch 11 Religious Freedom in a Secular Society: The Case of the Islamic Headscarf in France 216 Nicky Jones 12 Religious Freedom in the UK after the Human Rights Act 1998 239 Ian Leigh North America 13 Judicial Interpretation, Neutrality and the US Bill of Rights 253 Frank S Ravitch 14 Protecting Religious Freedom: Two Counterintuitive Dialectics in US Free Exercise Jurisprudence 285 Brett G Scharffs 15 Walking the Tightrope: The Struggle of Canadian Courts to Define Freedom of Religion under the Canadian Charter of Rights and Freedoms 321 Barbara Billingsley 16 Quo Vadis The Free Exercise of Religion? The Diminishment of Student Religious Expression in US Public Schools 349 Charles J Russo Australia and New Zealand 17 Freedom from Discrimination on the Basis of Religion 365 Kris Hanna 18 Ruminations from the Shaky Isles on Religious Freedom in the Bill of Rights Era 371 Rex Tauati Ahdar 19 Indigenous Peoples and Bills of Rights 393 Paul Rishworth table OF LEGISLATION AND international instruments 422 INDEX 437 vi Acknowledgments It goes without saying that a volume such as this would not have been possible without the contributions and assistance of many people. The book had its genesis in the ‘Cultural and Religious Freedom under a bill of rights’ Conference held 13-15 August 2009 at Old Parliament House in Canberra, Australia. Many of the chapters in this volume had their first airing at that conference and we express our gratitude to all of those who presented and participated. The organisation of the conference was a substantial undertaking, and Stephen Webster deserves special mention for directing the work of the Organising Com- mittee. Of course, that organisation could not have happened without significant support from a number of sources, to each of which we express our sincere thanks: the International Center for Law and Religion Studies at Brigham Young University Law School and its sponsor, the Church of Jesus Christ of Latter-day Saints, the Adelaide Law School, The University of Adelaide Research Unit for the Study of Society, Law and Religion (RUSSLR), the University of Auckland, the University of Otago, Durham University, The Group of Eight Universities, ATF Press, and the Australian Human Rights Commission. A number of valued contributors both to the conference and to the book deserve special mention: the former Chief Justice of Australia, Sir Anthony Mason AC, KBE, whose conference keynote address appears in revised form in this volume; Professors W Cole Durham, Jr, and Brett G Scharffs from Brigham Young University Law School; Dean Rosemary Owens and Dean John Williams of the Adelaide Law School; the Archbishop of Adelaide, the Most Rev Philip Wilson; Dean Carolyn Evans of the Melbourne Law School; Dean Bruce P Elman of the University of Windsor Faculty of Law; Nigel Wilson and Peter Burdon of the Adelaide Law School and RUSSLR, and; Hilary Regan of ATF Press. We are, of course, indebted to Ben Mylius (LLB candidate, Adelaide, 2012) for research and editorial assistance, and to our publisher, The University of Adelaide Press, and its Director, Dr John Emerson, and its Commissioning Editor, Dr Patrick vii Freedom of Religion under Bills of Rights Allington, for their confidence in this project, and for their unstinting patience and guidance in bringing the book to fruition. Dr Allington has been untiring in working with the manuscript and the finished product has benefited enormously from his efforts. Finally, we are indebted to our families. Paul thanks his wife, Rachael, for being a partner in all that he does, and his two young children, Catherine and Luke, just for being themselves. Neville thanks his wife, Penny, for her unending support in this project (as in everything) and his daughters Jacquie (for her patience) and Kelly (without whose organisation and on-the-ground support, the conference that formed the basis for the book may never have taken place). Both of us recognise that without our families’ kindness, generosity and patience we could not be what we are and we certainly could not have produced this book. Paul Babie and Neville Rochow Canada Day 2011 Calgary, Canada, and Adelaide, Australia viii List of Contributors Rex Tauati Ahdar is Professor, Faculty of Law, University of Otago and Visiting Professor, National University of Samoa and Piula Theological College, Lufilufi, Samoa (2011). Paul Babie is Associate Professor, Adelaide Law School, at The University of Adelaide, and Founder and Director of the University of Adelaide Research Unit for the Study of Society, Law and Religion (RUSSLR). Barbara Billingsley is Professor in the Faculty of Law, University of Alberta. Robert C Blitt is Associate Professor of Law, University of Tennessee College of Law. Alan Cadwallader is Senior Lecturer in Biblical Studies, Australian Catholic University, Canberra. Neil Foster is a Senior Lecturer at the Newcastle Law School, University of Newcastle, NSW. Kris Hanna recently resumed general legal practice in Adelaide after serving in the South Australian House of Assembly 1997-2010. Nicky Jones is a Lecturer in Law, University of Southern Queensland. Bruce Kaye is the foundation editor of the Journal of Anglican Studies, a Professorial Associate at the School of Theology, Charles Sturt University and a Visiting Faculty member at UNSW. Widely published, he has taught in universities in England and Australia and was General Secretary of the Anglican Church of Australia from 1994 to 2004. David M Kirkham is Senior Fellow for Comparative Law and International Policy, Brigham Young University Law School. Cornelia Koch is a Senior Lecturer, Adelaide Law School, at The University of Adelaide. ix Freedom of Religion under Bills of Rights Ian Leigh has been a Professor of Law at the University of Durham since 1997. The Hon Sir Anthony Mason AC KBE sat on the High Court of Australia from 1972 to 1995. He was the ninth Chief Justice of the High Court (1987–1995). Ngaire Naffine is a Professor of Law at Adelaide Law School, The University of Adelaide. She has published in the areas of criminology, criminal law, jurisprudence, feminist legal theory and medical law. Patrick Parkinson AM is Professor in the Faculty of Law, the University of Sydney. He is a specialist in family law, child protection and the law of equity and trusts. Frank S Ravitch is Professor of Law and Walter H Stowers Chair of Law and Religion at Michigan State University College of Law. Paul Rishworth is Professor of Law at the University of Auckland, where he was Faculty Dean and the Head of the Department of Law 2005-2010.