Religion and Australian law

A year or so ago, to the disapproval of some of my family and friends I agreed to appear on Tony Jones's Q&A with Christopher Hitchens. As I said to family and friends at the time, it is part of my day job. Someone has to do it. Something crystallized for me that night when they played a video clip question from a young man Joseph Bromely who according to Jones 'looks enormously like a young Malcolm Turnbull'. Bromely said:

Hello Comrades. Can we ever hope to live in a truly secular society when the religious maintain their ability to affect political discourse and decision making on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment?

Jones and Hitchens were clearly simpatico with this approach, as were many in the audience, but I was dumbstruck, wondering how can we ever hope to live in a truly democratic society when secularists maintain their demand that people with a religious perspective not be able to claim a right to engage in the public square agitating about laws on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment? We have just as much right as our secularist fellow citizens to contribute in the public square informed and animated by our worldview and religious tradition. We acknowledge that it would be prudent to put our case in terms comprehensible to those who do not share that worldview or religious tradition when we are wanting to win the support and acceptance of others, especially if we be in the minority. But there is no requirement of public life that we engage only on secularist terms. And we definitely insist on the protection of our rights including the right to religious freedom even if it not be a right highly prized by the secularists. It was good to see that in Tony Jones's absence from Q&A last week, God made a guest appearance, with Virginia Trioli. It is also welcome that tonight we are launching a Forum edition of the University of New South Wales Law Journal dedicated to the topic of religion and Australian law.

In the Foreword, Keith Mason offers a framework for the issues discussed in this Forum edition. His 'checklist places the onus of persuasion upon the shoulders of the believers who want greater accommodation' within the 'minimalist constitutional milieu operating in a soundly working liberal democracy' like Australia. The Australian Oxford academic John Finnis in his new book of essays Religion and Public Reasons identifies three types of practical atheism: that there is no God, that God is unconcerned with human affairs, and that God is easily satisfied with human conduct or easily appeased or bought off. He reminds us that 'neither atheism nor radical agnosticism is entitled to be treated as the 'default' position in public reason, deliberation and decisions. Those who say or assume that there is a default position and that it is secular in those senses (atheism or agnosticism about atheism) owe us an argument that engages with and defeats the best arguments for divine causality.' Though it might be prudent and strategic to suggest that religious accommodationists carry the onus of persuasion in a public square with a secularist prejudice, might there not be a case for arguing that the representatives of the more populist, majoritarian mindset in the public square need to be more accommodating of religious views? Paul Babie, the experienced practitioner of law and religion makes the point: 'What is necessary in Australia is not further theorising about whether or not religion/spirituality should play a role in the development of law, but rather, concrete, explanatory data that demonstrates that it already does play a role in the lives of individuals and their sociolegal interactions.'

I am constantly bemused here in Australia that whenever I agitate questions of Aboriginal and refugee rights I will usually be well received in liberal circles but the very same receptionists are likely to question my clerical entitlement to speak when I decide to buy into debates on issues like euthanasia and embryonic stem cell research. And if I buy into topics like same sex marriage as I did on the ABC TV program Compass two weeks ago, I will be attacked with equal intensity from both sides – one questioning my right to express a view and the other contesting my standing as a Catholic priest. Just check the website to see that on this topic it is a warzone with little expectation of civility, let alone Christian charity.

Professor Finnis, a Catholic but making a point equally applicable to all faith communities, says, 'Outside the Church, it is widely assumed and asserted that any proposition which the Catholic Church in fact proposes for acceptance is, by virtue of that fact, a 'religious' (not a philosophical, scientific, or rationally grounded and compelling proposition), and is a proposition which Catholics hold only as a matter of faith and therefore cannot be authentically willing to defend as a matter of natural reason.'

For Finnis, much of what John Rawls in his Political Liberalism describes as public reason can be equated with natural reason. Whereas Rawls would rely only on an overlapping consensus not wanting to press for objective reality of right and wrong, Finnis would contest that the only content of an overlapping consensus would be that which can be objectively known through natural reason.

Since 11 September 2001, Australians have displayed an increased sensitivity to the demands of Muslim Australians that their perspective on pressing social and political questions be heeded. There has been spirited debate in the Australian community about the need for religious vilification laws to protect Muslims from uninformed attack by Christian fundamentalists. During the 2009 National Human Rights Consultation, we heard individuals, even church leaders, expressing concern that a national charter of rights might entail a national religious vilification law similar to that in Victoria. The Victorian law (enacted before the Charter and therefore without the benefit of a statement of compatibility) provides

A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

In my view, the application of the Victorian religious vilification law has hindered rather than helped religious and social harmony. The Catch the Fires litigation in Victoria has placed a permanent cloud over the utility of all religious vilification laws in Australia. These laws cannot be administered with sufficient transparency and neutrality. Even if one were to accept the utility and desirability of racial vilification laws, there is a strong case for stopping short of religious vilification laws or for at least enacting such laws only for criminal prosecution at the behest of the Attorney General. While it is inherently racist for a person to claim membership of the best race, it is no bad thing for a religious person to claim membership of the one true religion. That is the very point of religious belief. That is what religious people do. Within the great religious traditions, there are strands which urge universal respect and love for all persons regardless of their religious affiliation. But the State overreaches itself when it adapts laws prohibiting vilification on the grounds of a physical characteristic premised on absolute equality of all persons regardless of that physical characteristic to laws prohibiting vilification on the grounds of religious belief when there is no necessary presumption by believers that all religions are equally good and true. Given that religious believers might be robustly criticised by non-believers, how are officers of the State to distinguish between those fanatical practitioners who might be rightly reviled or ridiculed from those other practitioners who are to be respected regardless of the errancy of their beliefs or the potential of their beliefs to be misconstrued by others for destructive purposes?

It is at least arguable that the Victorian provision outlawing religious vilification would have been more strictly tailored, respecting freedom of speech, if it had been passed after the Victorian Charter. Helen Pringle provides 'a qualified defence of religious vilification laws' seeing them having more of a place in the modern polity than do I. She rightly insists that religion cannot be distinguished from race on the basis of 'non-indelibility, as if religion were a matter of beliefs or feelings that can be set apart from the identity of the believer.' She makes the point that 'religious bearing, even of reprobate characters....is not necessarily so different from racial identity as to merit completely asymmetrical treatment in discrimination law, or those aspects of it concerned with vilification.' Though I disagree, I do think she mounts a good case that 'religious vilification laws have as much (or as little) validity as racial vilification laws.'

Church groups in Australia have been engaged in a gruelling campaign to maintain what they regard as justifiable exemptions from the provisions of equal opportunity employment laws. Cardinal Pell makes the point nicely:

Should The Greens have the right to prefer to employ people who believe in climate change, or should they be forced to employ sceptics? Should Amnesty International have the right to prefer members who are committed to human rights, or should they be forced to accept those who admire dictatorships? Both cases involve discrimination and limiting the freedoms of others, and without it neither organisation would be able to maintain their identity or do their job effectively. Church agencies and schools are not exempt from anti-discrimination law in New South Wales, and the language of 'exemptions' is misleading. Parliaments are obliged by international human rights conventions like the ICCPR to provide protection of religious freedom in any laws which would unfairly restrict the right of religious communities to operate their schools and services in accord with their beliefs and teachings.

While there may be strong agreement about the need to maintain a Church's right to employ in certain positions only persons who live in conformity with Church teaching, there is plenty of room for disagreement as to how most prudently and charitably to exercise that right. It is not only secularist, anti-Church people who think that Church organisations and leaders would be displaying homophobia by singling out only gays and lesbians for exclusion from employment in some key positions when heterosexual persons are also living in what the Church might formally regard as irregular situations.

In Victoria, the Scrutiny of Acts and Regulations Committee of the Parliament conducted a lengthy review into the exceptions and exemptions to the Equal Opportunity Act 1995. As in the UK, many church personnel here presumed that the Charter (or Human Rights Act) was instrumental in calling into question the existing exemptions. That was not the case. They are quite separate statutes. A case can be made that a Charter espousing the key rights to religious freedom and conscience could assist in setting the appropriate limits on State intervention with Church organisations wanting to employ persons whose lifestyles (hopefully not just sexual) are consistent with church teaching.

During the National Human Rights Consultation, Bob Carr (ex Premier from New South Wales) told a conference convened by the ACL and the Catholic Archdiocese of Melbourne that one of the chief advantages of not having a Charter was that church leaders could deal directly with government. He told the story of the two Archbishops of Sydney coming to see him as premier when there was discussion about a proposed Bill to restrict the freedom of Churches to employ only those persons living consistently with Church teachings. He was able to give them an immediate assurance that their interests would be protected. Once again it is a matter for prudential political assessment. But I think those days have gone. It is a good thing for society that elected political leaders and church leaders are able to meet and talk confidentially. Whatever the situation in the past, it is now not only necessary but also desirable for church leaders to give a public account of themselves when seeking protection of freedom of religion within appropriate limits, especially when they are in receipt of large government funds for the provision of services to the general community, and not just to Church members. Church special exemptions regarding employment are all the more defensible when church personnel including bishops and those with the hands-on directing of church agencies are prepared to appear before a parliamentary committee and provide a coherent rationale for those exemptions, rather than simply cutting a deal behind closed doors with the premier or prime minister of the day.

Having successfully fought off the prospect of a national human rights Act, 20 key church leaders met with Prime Minister Gillard on 4 April 2011 to plead for freedom to employ in church agencies personnel living and acting in accordance with the religious beliefs of the sponsoring churches. After the meeting, Cardinal Pell briefed the media about the meeting. He was reported in The Australian having told Ms Gillard: 'We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called 'exemptions and exceptions' in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists' table. What is needed is legislation that embodies and recognises these basic religious freedoms as a human right.' That sounds suspiciously like a Human Rights Act to me.

Patrick Parkinson in his piece 'Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace' asks, 'What is the place of religion within the legal system of a secular society?' He rightly concedes that it cannot be a place of privilege, and he rightly insists that it cannot be a place of invisibility either. Patrick who has been a long time, careful adviser to churches on these contested questions, says:

Religious faith is profoundly important to many people in Australian society, and their right not only to believe but to manifest that belief in how they live is a fundamental human right. Employment is an important part of most people's daily lives and cannot be entirely a faith-free zone. Like all rights, the right to manifest belief is subject to limitations but not to abnegation. A winner-takes-all approach to the conflict between conservative religious belief and gay and lesbian rights would be a loss for human rights generally. No amount of soothing talk about 'balancing' can disguise when one right is allowed to eradicate another.

The Murdoch press has already been having a field day with the article by Ann Black and Kerrie Sadiq entitled 'Good and Bad Sharia: Australia's Mixed Response to Islamic Law' According to Chris Merritt and the Murdoch editorial team, there is only bad sharia.

The recognition of universal human rights and the proper delimitation of such rights does not necessarily entail all persons being treated the same before the law of the State. The Archbishop of Canterbury, Rowan Williams occasioned great controversy in his 2008 Address at the Law Courts of London entitled Civil and Religious Law in England: A Religious Perspective. He raised the issue of British Muslims being able to invoke Sharia law:

I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework. At the moment, one of the most frequently noted problems in the law in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon.

Williams has no difficulty conceding that citizens can boast 'multiple affiliations' within the nation State. There are instances when a citizen ought to be entitled to resolve a conflict within his own ethnic community or according to the laws and tradition of her own religion.

Consider the case of traditional punishment in a remote Aboriginal community in contemporary Australia. If an Aboriginal person has caused injury to another Aboriginal person and both persons consider themselves bound by their local customary law, why shouldn't they be able to agree to resolve the conflict between them according to that local customary law? Why should they have recourse to the State authorised courts only? The matter would be different if one of them were not a practitioner of the local customary law or even if one of them expressed a preference for dispute resolution before the State authorised court. But if all parties affected by the injury and party to the injury agree to alternative dispute resolution according to local customary law, how could there be any undue interference with the rights and dignity of all parties? If the injury warranted a traditional punishment such as a spearing in the thigh, the accused may still prefer that punishment to months or years in detention in a jail situated well away from his traditional country and family. The European Australian who regards spearing as barbaric should at least concede that an Aboriginal Australian might regard long term detention in a prison cell equally or more barbaric.

There is a need for some limits on when those with multiple affiliations might opt out of the state's regulatory regime. Though an old Aboriginal man might claim traditional marriage rights to a young girl whose family expresses no objection, the State still has an interest ensuring that the young girl's dignity is protected by banning marriage without informed consent and requiring court approval for any marriage of an under-age girl, regardless of the race of herself and suitor.

Citizens who are Jewish often exercise the option to have their marriage and commercial disputes resolved by the Beth Din rather than approaching the State courts. When a marriage has broken down, a Jewish couple might opt to have the rabbi or the Beth Din resolve conflicting claims. In principle, there can be no objection to a Muslim couple having recourse to Sharia law to resolve such claims. Rowan Williams' lecture occasioned great controversy at the time of its delivery. Five months later, Lord Phillips, now President of the Supreme Court of the UK, who had chaired the Archbishop of Canterbury's lecture, gave his own endorsement:

It was not very radical to advocate embracing Sharia Law in the context of family disputes, for example, and our system already goes a long way towards accommodating the Archbishop's suggestion. It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. Those who, in this country, are in dispute as to their respective rights are free to subject that dispute to the mediation of a chosen person, or to agree that the dispute shall be resolved by a chosen arbitrator or arbitrators. There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales. So far as aspects of matrimonial law are concerned, there is a limited precedent for English law to recognise aspects of religious laws, although when it comes to divorce this can only be effected in accordance with the civil law of this country.

The State can still insist on monogamy, prohibiting the contracting of more than one marriage and criminalising bigamy. That is because the State has a legitimate interest in restricting marriage such that equal dignity and respect is accorded all parties to the marriage. There would be good reasons of public policy for the State to refuse to apply any sanction to a religious person wanting to enforce an agreement involving a polygamous marriage. State recognition of monogamy and criminalisation of bigamy are justified even when some citizens hold religious beliefs permitting bigamy. The civil law can properly override religious belief and practice when such belief or practice is counter to the fundamental equality of all citizens. Black and Sadiq highlight one gray area: when Muslims (or any other persons) decide not to have their marriages performed by an authorised celebrant and registered under the Commonwealth Marriage Act. There may be issues with a person entering into multiple de facto marriages or even of entering into a de facto marriage with a person under the lawful marriage age. These problems should be addressed by the law in the same way whether or not any of the parties are Muslim. Black and Sadiq note the government and community acceptance and interest in allowing and fostering banking and financing laws and practices consistent with Sharia. Just as there has been some 'tweaking' of commercial law, they plead for some 'concessions or tweaking in other areas, particularly family and inheritance law'. They highlight the censorious claim of Chris Bowen, Minister for Immigration that 'anybody who calls for Sharia law is not doing so in the name of multiculturalism. They are doing so as extremists and extremists need to be dealt with, whatever their creed.' Perhaps the Archbishop of Canterbury and President of the UK Supreme Court should be careful if they are ever to visit Australia.

Religious individuals and organisations can make a good case for opting out of the State regime when there is no risk to the fundamental human rights or human dignity of any party affected by the action. There are sure to be border line cases. For example, the UK has now decided to insist that all registered adoption agencies within the jurisdiction, including Catholic ones, provide a non-discriminatory service such that adoption would be as readily available to a same sex couple as to a man and woman wanting to adopt a child into their family. It would be no interference with the rights or dignity of gay and lesbian couples if some religious adoption agencies acting on their religious beliefs gave preference to married heterosexual couples when determining adoptive parents for a child, provided always that the agency was acting in the best interests of the child. This is a case of legislative overreach by the state insisting on uniformity of policy contrary to the religious beliefs of some without the demonstration of a countering public interest such as the protection of the fundamental rights and the equal recognition of the human dignity of all citizens.

Ladies and Gentlemen, time does not permit me to offer springboard observations on the other papers in this collection. Those I have singled out just happen to relate to topics which I profess to know a little about. Some of the others I knew nothing about. In Salim Farrar's essay, you will find all you could ever hope to know about Islamic banking and finance. You would think that Alex Bruce foresaw the crisis with live cattle exports. He provides a very thorough overview on the legal regulation of religious slaughter of animals. Marion Maddox looks at church state questions arising with the growth of new Christian schools which set their own curriculum in science. And Kieran Hardy asks why the need to include the option of a religious motive in the definition of terrorist acts. I commend Emily Rumble on a splendid Forum edition of the University of New South Wales Law Journal, trusting that both law and religion in Australia will be the better for this publication.