Liam Elphick

Freedom from discrimination and religious freedom have long clashed in the context of religious exemptions to anti-discrimination legislation. Historically rooted in debates over gender and race, this legal battleground has largely turned to sexual orientation in recent years. This has been particularly borne out in various 'gay wedding cake' disputes in overseas jurisdictions, where bakery owners have been sued for refusing to bake a cake for a same-sex wedding on religious grounds. Though the continued definition of marriage as being between a man and a woman has so far precluded these cases from arising in Australia, an in-depth examination of how such gay wedding cake cases would be decided under Australia's varying anti-discrimination laws remains lacking. Furthermore, existing approaches have tended to focus on the external morality of law and human rights, facing the difficult task of balancing freedom from discrimination with religious freedom. To avoid the uncertainty typical of external morality debates this article suggests an alternative approach, arguing that an application of Lon L Fuller's natural law theory, and in particular his eight 'excellencies' of law making, could provide a path forward for this debate in the pursuance of the internal morality of law. This approach would suggest an expansion of the current definitions of sexual orientation in Australian anti-discrimination legislation, the application of religious exemptions to religious organisations and religiously-affiliated bodies but not to individuals, and a shift to a quasi-subjective test to determine religious beliefs under such exemptions. This would provide a clearer path forward for lawmakers and judicial decision makers in an area of law rife with uncertainty and inconsistency.

Jurisdictional immunities – and particularly immunity ratione materiae – have stifled the ability of municipal courts to hold individual officials accountable for their actions under international human rights and international criminal law. This has resulted in significant confusion surrounding the status of immunity ratione materiae in cases where international crimes are alleged against State officials, as the very acts that would likely comprise international crimes – 'official' State-sanctioned acts – are those which are protected by the immunity. Whilst there is a growing body of judicial decisions, national legislation, international guidance and scholarly commentary on this issue, its complexities remain unresolved. This has led to a period of stasis in the area of international law immunities. This article seeks to contribute to the literature by providing greater clarity on these matters and in particular when an official might be held individually accountable for breaches of international criminal law. It is argued that, premised largely upon State consent, immunity ratione materiae should subside in cases of international crimes. It will be contended that State consent is implied from a combination of widespread ratification of the Rome Statute, State contributions made towards the development of international criminal law, and a global shift towards accountability and justice and away from impunity. As such, a change to the definition of 'official acts', which attract functional immunity, is proposed to reflect this. While such arguments may appear counterintuitive to pre-existing notions of State responsibility for certain international wrongs, and the inherent State-sanctioned nature of international crimes, it will be concluded that States and individuals can and should both be equally responsible for the perpetration of such crimes.