RELIGION, CHARITY AND HUMAN RIGHTS

Transcription

1 RELIGION, CHARITY AND HUMAN RIGHTS For the first time in 400 years a number of leading common law nations have, fairly simultaneously, embarked on charity law reform leading to an encoding of key definitional matters in charity legislation. This book provides an analysis of international case law developments on the evergrowing range of issues now being generated by clashes between human rights, religion and charity law. identifies and assesses the agenda of moral imperatives, such as abortion and gay marriage, that delineate the legal interface, and considers their significance for those with and those without religious belief. By assessing jurisdictional differences in the law relating to religion/human rights/charity the author provides a picture of the evolving culture wars that now typify and differentiate societies in Western nations, including the United States, England and Wales, Ireland, Australia, Canada and New Zealand. kerry o halloran is Adjunct Professor at the Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane. He is a professionally qualified lawyer and social worker. His 22 books and many other publications include The Church of England: Charity Law & Human Rights (2014), The Profits of Charity (2012), The Politics of Charity (2011), Modernising Charity Law (2010), Charity Law, 2nd edition (2009), Charity Law & Social Policy (2008) and Charity Law and Social Inclusion: An International Study (2006).

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3 RELIGION, CHARITY AND HUMAN RIGHTS KERRY O HALLORAN Queensland University of Technology

4 University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. Information on this title: / Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data O Halloran, Kerry, author. Religion, charity and human rights /, Queensland University of Technology. pages cm ISBN (hardback) 1. Corporations, Religious Law and legislation English-speaking countries. 2. Charitable uses, trusts, and foundations English-speaking countries. 3. Religious trusts English-speaking countries. 4. Freedom of religion English-speaking countries. 5. Religion and politics English-speaking countries. 6. Religion and law English-speaking countries. 7. Human rights English-speaking countries. I. Title. K3280.O dc ISBN Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

5 This book is dedicated to the memory of Rosemary C Dickson ( ). Her commitment as a Quaker, to religion and charity, was a support and inspiration to many.

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7 CONTENTS Acknowledgements page viii Introduction 1 part i Background 7 1 Religion, charity and the state: concepts, precepts, relationships and boundaries 9 2 Charity law and religion: the common law context; historical background 42 3 Competing frames of reference: domestic constraints 74 4 The international context: religion, human rights and charity law reform 110 part ii Contemporary international perspectives England and Wales Ireland The United States of America Canada Australia New Zealand 427 part iii Future directions A conflicts of laws: canon law, charity law and human rights law 467 Conclusion 509 Index 515 vii

8 ACKNOWLEDGEMENTS Sincere thanks are owed to Professor Myles McGregor-Lowndes, Director of the Australian Centre of Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane, Australia for his support and friendship, and to the Australian Centre for Philanthropy and Nonprofit Studies for offering me an academic base to conduct the research for this and other books. For his companionship and that of other colleagues, and for all their many acts of friendship to my wife and self during our visits to the Centre, I remain extremely grateful. Thanks are also due to those who offered comment on draft chapters. In particular, I much appreciated the helpful feedback received from the home team: Myles McGregor-Lowndes, Dr Matthew Turnour, Managing Director, Neumann & Turnour Lawyers, Brisbane, QLD, Australia and Director of the Australian Charity Law Association, and Fr Brian Lucas, General Secretary of the Australian Catholic Bishops Conference; the latter s patient observations were certainly challenging. Among those who made helpful contributions from further afield were: Putnam Barber, a renowned Seattle-based writer and commentator on public policy issues affecting the work of nonprofits (United States); Dr Michael Gousmett, Founding Trustee, The New Zealand Third Sector Educational Trust and co-author of The Law and Practice of Charities in New Zealand, andsuebarker,directorofsuebarkercharitieslawand co-author of The Law and Practice of Charities in New Zealand (New Zealand); and Laird Hunter QC, recognised by Lexpert as one of Canada s leading practitioners in charity and nonprofit law and retained by some of Canada s leading charitable foundations (Canada). I am very thankful to Cambridge University Press for the vote of confidence that resulted in the publication of this book. Religion, Charity and the Law was completed during my tenure at the Australian Centre of Philanthropy and Nonprofit Studies, and there may be some overlap of material with other books also written during that period such as The Church of England: Charity Law & Human Rights (Springer, 2014), The viii

9 acknowledgements ix Profits of Charity (Oxford University Press, 2012), The Politics of Charity (Routledge, 2011), Modernising Charity Law (Elgar, 2010), Charity Law & Social Policy (Springer, 2008) and Charity Law and Social Inclusion: an International Study (Routledge, 2006). Despite editorial diligence, some mistakes, inconsistencies and other faults of omission or commission may have found their way into print, in which case, responsibility for same, as for all views expressed, must rest exclusively with me. Thank you as always, Elizabeth, but especially for putting up with this in the midst of what for you has been a particularly stressful year.