Introduction
Dean Evans, Ladies and Gentlemen: Thanks for the honour of being asked to be your after dinner speaker at this stellar conference of 'law and religion' scholars sponsored jointly by the Centre for Comparative Constitutional Studies and the International Center for Law and Religion Studies. Thanks to Carolyn Evans for such a gracious introduction.
Could I invite you at the outset to turn and look at the portrait on the far right of the entrance wall. That is John Henley, once Master of this Queen's College, a Uniting Church theologian who at one stage taught me half of the moral theology I knew, I being a Jesuit student here at the very ecumenical United Faculty of Theology. Conversation and reflection across confessional divides came naturally to those of us who studied at the colleges on this Crescent. I am always delighted to return to the Melbourne Law School where my Masters thesis in law was supervised by two of the Melbourne greats, Michael Crommelin and Cheryl Saunders.
That thesis became my first book Too Much Order with Too Little Law which was a study of the draconian laws and policies of my home state Queensland which in those days banned political demonstrations in the name of law and order — at the hands of a state premier who claimed a popular mandate for putting down dissent. As an activist with a slight academic bent I was very spoilt. Some years later, a new state government was elected in Queensland with a commitment to legislating a public assembly law entrenching the right of peaceful assembly. For the first time in my Jesuit life, I accepted an invitation from the State to perform a public function, being the consultant to the committee which proposed the legislation. Alas, not all my writings since have resulted in the reforms advocated in them. It was a great start to life as a churchman in the public square.
Usually I have declined invitations to take on public positions at the request of government or the judiciary. Overseas visitors will appreciate that our indigenous peoples have occupied this continent for tens of thousands of years. But in 1988, we were to celebrate our bicentenary. We did not quite know the bicentenary of what. But it was 200 years since the British claimed the east coast of the Australian colony establishing a penal colony at Sydney Cove, thereby commencing the dispossession of the indigenous Australians. On the eve of the bicentenary, Justice Marcus Einfeld asked me to join him on the Human Rights Commission to investigate the plight of Aborigines living in a remote area of New South Wales. I declined on the basis that 1988 would be a year of much agitation about Aboriginal rights and perspectives, and I thought I should be free from any formal position of public trust or authority so that I might participate at whim in the discussions in the public square. The judge opined that he did not have jurisdiction to force me, a Jesuit priest, to accept the commission. We agreed that it was a good thing to live in a society where there was a strict separation of church and state.
I was a strong advocate for the establishment of a Council for Aboriginal Reconciliation. I declined repeated invitations from the Minister to serve on that Council. I thought it needed someone off it to defend it, and in hindsight I think I was right. I don't know that there is any set of comprehensive rules about when a church person should or should not accept an invitation from the State to discharge a public trust.
I have been asked to address you this evening because of the second invitation I ever accepted from government — to chair the National Human Rights Consultation in 2009. I had the good fortune in 1995 to attend Georgetown Law Center on a Fulbright. The Center is walking distance to the Supreme Court. My own father had struck up a friendship with Justice William Brennan on that court after he had given a judgment on a matter in the Australian High Court. One of the Australian newspapers reported the case but published the wrong photo. Dad had great pleasure in forwarding the report to the American justice pointing out that the Supreme Court judge's fame was so universal that Australian journalists were unaware that there was a judge of that name in their own country. This was good news for me, as it gave me an entrée to Justice William Brennan and his chambers when I arrived in Washington. I dined with the retired judge every two weeks. I had the opportunity to see the workings of your constitutional arrangements for the protection of human rights up close. I did not altogether like what I saw. I returned home and wrote a book Legislating Liberty which I dedicated to Justice William Brennan. In my acknowledgment I pointed out that he had failed to convince me of the need for a constitutional bill of rights in which judges always had the last word. I was attracted to the idea of a statutory bills of rights which set down the key civil and political rights, allowing judges to interpret laws consistent with those rights and their limits, and requiring elected politicians to have a special care about overriding those rights in the public interest or for the common good or so as to preference some rights over others.
I then promptly forgot about the book and got on with my work advocating rights for Aborigines and refugees, here in Australia and in places like East Timor and Cambodia. They were torrid political times culminating in retired Prime Minster Paul Keating describing me as 'the meddling priest'. Ten years later, a Labor government was elected in Australia having amended its party policy from commitment to a Human Rights Act to an undertaking to conduct a public consultation about the protection of human rights in Australia. I was asked first to be a member of the committee, and then a week later I was asked to chair the committee. I knew there was no James Madison in the Australian government agitating strongly for a human rights charter. I also knew that the government had no commitment to anything other than a consultation, there being no guarantee that the recommendations of the consultation would be adopted. So for the second time in my life, I thought it appropriate to accept a government invitation to serve all citizens and not just my co-religionists, and on vexed questions about how best to protect human rights. I was known to be an agnostic fence-sitter about the Victorian Charter of Human Rights and Responsibilities Act. Five months before my appointment, I had given a speech observing:
In the legal academy there is presently a great evangelical fervour for bills of rights. This fervour manifests itself in florid espousals of the virtues of weak statutory bills of rights together with the assurance that one need not be afraid because such bills do not really change anything. It is a pleasant change for me to be cast in the role of the sceptical agnostic insisting that the promised parousia of enhanced human rights protection be backed by hard evidence of tangibly different outcomes. Those of us with a pragmatic, evidentiary approach to the question are now well positioned given that two of Australia's nine jurisdictions have now enacted such bills of rights with the double assurance that nothing has really changed and that things can now only get better.
The trouble with much human rights discourse is that it is too readily reduced to assertions just about individual rights and non-discrimination. Human rights discourse needs to be more subtle when it comes to a conflict of rights situation or when the law is having to consider the public interest or the common good as well as individual liberties. In the public square, human rights discourse is usually conducted against a backdrop of presumed atheism and, in Australia, without much serious consideration for the rights of religious freedom and conscience.
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.'
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 crystallised 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.
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 last week, I will be attacked with equal intensity from both sides — one questioning my right to express a view and the other contesting my Catholicism. 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.
Diverse church views during the national Human Rights Consultation
In 2009, I had the opportunity to take a bird's eye view of the nation, chairing the diverse committee charged with reporting back to government the community's thinking about human rights protection in Australia.
It is fashionable to claim discussion about an Australian human rights Act is just the concern of elites, the fetish of lawyers and citizens with an axe to grind. 35,000 people made submissions to us. More than 6,000 came through the door and sat down for a two-hour discussion with us, as we conducted over 60 community roundtable discussions the length and breadth of the country. Of the 35,000 people who sent submissions of any sort, 33,356 expressed a view for or against a human rights act. 87 per cent of those who expressed a view were in support. The overwhelming majority of those 6,000 persons who attended a community roundtable supported such an Act. The independent research resulting from a random telephone survey of 1200 persons turned up 57 per cent in support, 14 per cent opposed, and 30 per cent undecided. Many of those surveyed and participating in our processes would have been Christians.
In all those months of discussion, and with every conceivable controversial issue being raised from varying perspectives, only one person got up and abused the audience. This speaks well of the Australian democratic spirit and our tolerance for differing viewpoints. At times, that tolerance verges on apathy and irresponsibility. But usually it demonstrates a fine national ethos for tolerating difference and respecting the other whose worldview and life experience is so different.
Another heartening aspect of our inquiry was that we were able to tap the concerns of the average Australian, conceding that the 40,000 who chose to participate in our processes were not necessarily a representative sample of the community. Detailed focus groups and the telephone survey revealed that 64 per cent of us think that human rights in Australia are adequately protected. This is a great country to live in, and we know it. But there are some groups for whom we have a strong concern. More than 70 per cent of us think that people with a mental illness, the elderly, and persons with disabilities need greater protection of their human rights than they are presently receiving. A majority of us also think that people living in remote areas (especially indigenous Australians) and children wherever they live need greater protection. We are split on the rights of asylum seekers. While 42 per cent think we have got the balance right, 30 per cent of us think that asylum seekers need less protection of their rights, 28 per cent thinking they need more protection. A third of us would favour greater protection of the human rights of indigenous Australians living in urban areas. But 55 per cent think we do enough in that regard and 13 per cent think urban Aborigines and Torres Strait Islanders need less protection of human rights.
Since our report has been released, the Churches have been identified as the chief critics of a human rights Act in any form. This is an unfortunate and incorrect caricature of the situation. The major concern expressed by some Church leaders is the threat that a human rights Act could be to freedom of religion. Cardinal Pell has pithily expressed the concern 'that human rights statutes, such as the Charter of Rights and Responsibilities in Victoria, seem to end up violating and diminishing some human rights rather than protecting them'. That concern, if well founded, would be good grounds for opposing the introduction of a federal Human Rights Act.
I have spent many years making submissions to government and parliamentary committees. This was the first time that I had been on the other side of a public inquiry process, trying to respond to the various Church voices putting sometimes contrary views on an issue of law or public policy. For example, what was one to make of the varying formal positions on a Human Rights Act put forward by the governing bodies of the three major churches?
Let's consider the evidence, bearing in mind that Catholics are 26 per cent of the population, Anglicans 21 per cent, and Uniting Church 7 per cent.
The Australian Catholic Bishops Conference submitted:
In considering the question raised by the terms of reference of the National Human Rights Consultation, it is noted that much discussion has been about whether or not there should be a Charter of Rights. On that particular issue, the ACBC does not take a particular stand at this stage.
In their submission, the Australian Catholic Bishops Conference restated: 'The Australian Catholic Bishops Conference does not have a position as to whether or not there should be a Charter of Rights.'
The Anglican General Synod submitted:
We support the enactment of human rights legislation because this has the potential to have a beneficial effect on government policy and the legislation and administration, which give effect to that policy. Legislators and administrators will be compelled by such legislation to consider the impact of their decisions on all Australians, especially the most vulnerable. Further, the existence of human rights legislation could encourage greater understanding of human rights in the community.
The Uniting Church National Assembly submitted:
The Uniting Church believes that a Human Rights Act, operating within Australia's system of open and democratic government, will provide greater protection for fundamental rights and freedoms, promote dignity, address disadvantage and exclusion, and help to create a 'human rights culture' in Australia. Furthermore, it will serve to promote Australia's commitment to human rights in the Asia-Pacific and globally, and formalise the current Government's commitment to the United Nations by those putting it into effect.
As if that is not confusing enough, consider that in contradistinction to the submission of the Australian Catholic Bishops Conference, the Archdiocese of Sydney (Dr Michael Casey) submitted:
There are initiatives which could be taken to better protect and promote human rights in Australia, but there are serious reasons for doubting that a statutory charter of rights is the best way of doing this.
This submission followed upon Cardinal Pell's address to the Brisbane Institute the previous year when he stated his opposition to a charter of rights in any form. He told the Brisbane Institute:
The suspicion of majority — that is, parliamentary — rule, the preference for judicial, as opposed to political, determination of fundamental questions, the unacceptable transfer of responsibility from the parliament to the courts, and the unspoken assumptions which inform not only these tendencies but the particular social and political agenda which a bill of rights is intended to implement, are some of critical problems with proposals for a bill or charter of rights. These problems are compounded by confusion over the foundations of human rights, freedom and truth.
Moving beyond the neutral position of the Australian Catholic Bishops Conference, the Archdioceses of Sydney and Melbourne co-operated in activities with the Australian Christian Lobby (ACL) during the inquiry. The Lobby was opposed to a Human Rights Act in any form. The Anglican Archbishop of Sydney, Peter Jensen, joined forces with other church leaders opposed to a Charter in any form, despite the submission from the Anglican General Synod supporting a Charter. For me and my committee members, it was difficult to get a handle on just who the ACL represented.
Once church leaders join forces with a group such as the ACL, it is then difficult to know how to assess the earlier formal statements of the church leaders which may not be fully consistent with the Lobby's implacable opposition to a measure such as a Human Rights Act. During the course of our inquiry, the Lobby's Victorian State Director Rob Lord who is here with us this evening explained the Lobby's profile to the Victorian Parliament in these terms:
The Australian Christian Lobby occupies a somewhat different space from some of the other church and church-related groups .... We are not a church, we are not a peak body seeking to represent schools or welfare agencies, we are certainly not a political party and neither are we a denomination. The Australian Christian Lobby has a vision, in that we seek to see Christian principles and ethics accepted and influencing the way we are governed, the way we do business and the way we relate to each other as a community.
We are, in the most commonly accepted term, a parachurch group, with a goal of speaking particularly in the political and public policy areas at both state and federal levels ... Parachurch organisations are, by definition, Christian faith-based organisations which work outside and across denominational boundaries. As such, the Australian Christian Lobby is in a unique position, I believe, to reflect to the committee today the depth and breadth of concern felt across the wider Christian community over some of the proposals contained in the Options Paper. Here in Victoria my role with the Australian Christian Lobby is as state director. As such, I caucus quite widely and am engaged with a number of different groups across the Christian community, ranging from Catholic to Pentecostal, to Baptist, to Anglican — quite broadly.
Given the diversity of opinion expressed by the ACBC and the Catholic Archdiocese of Sydney, as well as the diversity of opinion between the Anglican General Synod and their Sydney Archbishop, and given the ambiguous role and relationship between the ACL and some church leaders, it became too complex a task to try and represent in the report the viewpoint of the various churches on a Human Rights Act. Thus we omitted all reference to same. I daresay this will become a common response by public inquiries which doubt the public's interest in investigating the complex arrangements now in place for church leaders to express views under various guises. After our report was published, one Church leader wrote to me saying:
The decision to exclude different views expressed by the churches seems to suggest that on social issues, if the churches cannot speak in one voice they will not be given a say at all. You clearly foreshadow that this is what can be expected from similar sorts of public inquiries in the future. All this would do, if it were to happen, is to call into question the good faith of those conducting such 'consultations'.
I do not agree that the impugning of the standing of the consultation would be the only consequence; in fact it might not be one of the consequences at all. One consequence might be the churches condemning themselves to irrelevance.
Specific church concerns with the Victorian Charter of Rights and Responsibilities
During the course of our inquiry, we heard strong church concerns about three issues which people thought to impact unduly on religious freedom in Victoria, the main Australian jurisdiction with a human rights act: (1) the religious vilification laws in Victoria; (2) the compulsory referral clause in the Victorian Abortion bill; and (3) the exemptions for church bodies from the discrimination laws.
So the appropriate issues for inquiry were: do these three laws and policies unduly limit the right to freedom of religion? If so, would a Charter of rights help or hinder the protection and enhancement of the right and the due setting of limits on the right? In each instance, I concluded that there was an attempt to unduly limit the enjoyment of the right, but that a Charter in each instance would have helped or would have been irrelevant. I could not see the Charter itself and its faithful implementation working any harm to the freedom of religion. Given that some church leaders thought the Charter contributed to an undermining of the freedom of religion in these cases, it is worth considering them in some detail. Note: I am not putting the case for or against a Charter. Our report does that even handedly in Chapters 12 and 13. I just want to test the key anti-Charter arguments put by the Churches, to see whether freedom of religion could be enhanced or undermined by the enactment of a Charter.
Religious Vilification
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. At some of our community consultations, 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 laws (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. How are officers of the State to distinguish between the religious belief which might be robustly criticised and some of whose fanatical practitioners 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.
Compulsory referral for abortion
Prior to my appointment to chair the National Human Rights Consultation Committee, I had some involvement in the Victorian debate about section 8 of the Victorian Abortion Law Reform Act 2008 which provides:
If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.
I thought such a provision was in flagrant breach of right to freedom of conscience, religion and belief, could not be justified, and would not pass muster if the bill to Parliament was accompanied by a statement of compatibility as required by the Victorian Charter. The provision is not only lacking all proportionality; it is completely unworkable and unnecessary — unworkable because there is no way that a doctor can reasonably be expected to know the circumstances in which fellow practitioners will or will not have a conscientious objection to performing an abortion, and unnecessary because no referral is required for an abortion in Victoria.
When Lord Joffe's Assisted Dying for the Terminally Ill Bill was first drafted in the United Kingdom it contained two clauses similar to section 8 of the Victorian Abortion Law Reform Act 2008. Clauses 7(2) and (3) of the original Joffe Bill imposed a duty on physicians who invoked their right to conscientiously object, to 'take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection'. The Westminster Parliament's Joint Committee on Human Rights remarked:
3.14 We consider that imposing such a duty on a physician who invokes the right to conscientiously object is an interference with that physician's right to freedom of conscience under the first sentence of Article 9(1), because it requires the physician to participate in a process to which he or she has a conscientious objection. That right is absolute: interferences with it are not capable of justification under Article 9(2).
3.15 We consider that this problem with the Bill could be remedied, for example by recasting it in terms of a right vested in the patient to have access to a physician who does not have a conscientious objection, or an obligation on the relevant public authority to make such a physician available. What must be avoided, in our view, is the imposition of any duty on an individual physician with a conscientious objection, requiring him or her to facilitate the actions contemplated by the Act to which they have such an objection.
3.16 In the absence of such a provision, however, we draw to the attention of each House the fact that clauses 7(2) and (3) give rise in our view to a significant risk of a violation of Article 9(1) ECHR.
The UK bill was accordingly amended to provide that 'No person shall be under any duty to refer a patient to any other source for obtaining information or advice pertaining to assistance to die, or to refer a patient to any other person for assistance to die under the provisions of this Act' (cl. 7(3)). Under the revised UK provision, the doctor with a conscientious objection would have no additional legal duty other than 'immediately, on receipt of a request to do so, transfer the patient's medical records to the new physician'. (cl. 7(6))
When confronted with cl 8 of the Abortion Law Reform Bill, it was not surprising that the Victorian Scrutiny of Acts and Regulations Committee saw a need to provide parliament with a compatibility statement and drew attention to the equivalent attempted provision in the UK, the response by the UK Committee, and the amendment proposed in the UK Parliament. The Victorian committee noted:
Clause 8 sets out the obligations of health practitioners who hold a conscientious objection to abortion, including (in clause 8(1)(a)) an obligation to refer women who request an abortion to another practitioner who has no conscientious objection. The Committee observes that some practitioners may hold a belief that abortion is murder and may regard a referral to a doctor who will perform an abortion as complicity in murder. The Committee therefore considers that clause 8(1)(a) may engage the Charter right of such practitioners to freedom of belief.
The Committee rightly observed that the compatibility of this clause with the Charter 'depends on its satisfaction of the test in Charter s. 7(2), including whether or not there are less restrictive means available to achieve the purpose of the clause'.8 The Committee then very properly referred two questions to Parliament for its consideration:
1. Whether or not clause 8(1)(a), by requiring practitioners to refer patients to doctors who hold no conscientious objection to abortion, limits those practitioners' freedom to believe that abortion is murder?
2. If so, whether or not clause 8(1)(a) is a reasonable limit on freedom of belief according to the test set out in Charter s. 7(2) and, in particular, whether or not there are any less restrictive means available to ensure that women receive appropriate health care?
No credible answers were provided by Parliament. The questions could only have been answered, Yes to the first and No to the second.
The offensive s.8 would never have been adopted by Parliament had a statement of compatibility been required. To this day, no one has been able to draft a coherent statement of compatibility for this clause. The strong advocates for a national Human Rights Act modelled on the Victorian law would do themselves an enormous favour were they to convince the new Victorian Attorney General Robert Clark to repeal s. 8 or were they to produce a credible statement of compatibility. While s.8 remains on the statutes books, religious critics of a federal human rights Act will remain convinced that such a human rights regime is applied only selectively and ideologically, impairing the fundamental rights of religious persons. If the Victorian Charter distinguished between derogable and non-derogable rights (one of which is freedom from coercion or restraint in relation to religion and belief) opponents of s.8 would have been able to claim that the provision was a flagrant breach of a non-derogable right, causing Parliament to reject such a provision.
After our inquiry concluded, one church leader wrote to me conceding that I had done much during the abortion debate two years previously to highlight the need for faithful application of the Charter thereby amending the conscience clause in line with the UK precedent. He wrote:
This is precisely one of the greatest problems with charters of rights. Their authors may have the noblest intentions and the highest ideals of what a 'faithful' implementation of a charter should mean, but in the end it is not up to them to make this call. It is judges and tribunals, or in this case governments, which decide what is and is not faithful or coherent with a charter of rights, or even whether they come into play at all. To say that the Victorian Charter should have prevented this abuse of human rights, but did not, provides no reassurance on this point and merely underscores concerns about charters in general.
Exemptions from employment laws
Church groups in Victoria have just emerged from a gruelling campaign to maintain what they regard as justifiable exemptions from the provisions of the Victorian Equal Opportunity Act 1995. A similar issue has been playing out in New South Wales. 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.
Government and Opposition members of the Victorian committee actually decided that the Charter provisions had no role to play in determining the appropriate exemptions to be provided to the churches. Even the government members of the committee decided not to recommend that the exemptions for Churches be put through the Charter test. They observed 'that whilst such a test would allow the balancing of the non-discrimination right against right to freedom of the religion in each specific case, there is a more compelling need for clarity in the law in an area where many charitable and volunteer based organisations operate.' The Catholic Church ran a strong campaign to retain the existing exemptions (with some minor exceptions in relation to discrimination on the grounds of race, impairment, physical features or age which could never be justified as being consistent with Church teaching). The government responded to the Church pressure with the Attorney General publicly guaranteeing the retention of the key exemptions two months before the parliamentary committee reported. The Attorney General Rob Hulls was able to tell the public, 'These proposed changes follow consultation with religious bodies and have the support of the Catholic Church.' Definitely no adverse impact of the Charter in this case! Basically the politicians agreed with the evidence of Bishop Prowse to the parliamentary committee that 'the exemptions and exceptions which are an integral part of the existing legislation provide the right balance between freedom of religion and freedom from discrimination.'
During our public inquiry, 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.
So where are the Christian Churches on human rights, and where ought we be? If there is to be legislation recognising religious freedom as a human right, are there other freedoms which should be similarly protected? If not, why not?
Conclusion
Even those church people concerned by the secularizing tendencies of governments in the Australian democracy need to concede that the absence of a human rights Act does nothing to arrest those secularizing tendencies. It just leaves members of parliament free to respond to community pressure (including its secularising demands) without the added constraint of ensuring compliance with the rights listed in a human rights Act including the right to freedom of conscience and of religious belief.
Within our broad churches and religious communities, there is plenty of room for a diversity of views. But we need to have a more unified voice and provide more coherent arguments in the public square if our concerns about the interface between human rights and religious freedom are to count. It will be a mistake if churches come to view human rights as the privileged discourse of secularists who insist on individual autonomy of the strong at the cost of the public interest, the common good, public morality and interests of the weak.
Through my participation in the National Human Rights Consultation I was convinced that the Churches and religious leaders will be in better standing in the community if they consistently espouse the need for elected politicians to respect the human rights of all persons, without opposing proposals for human rights Acts on the basis that such laws might allow unelected judges to interfere with the privileges which church leaders have negotiated with elected politicians. I also think the churches and their leaders should take a more consistent position on the need to protect and respect the right and duty of a person to form and inform their conscience, and to that conscience be true.
I thank you for the opportunity to participate in your splendid conference and look forward to digesting the published papers.
The above text is from the speech given by Fr Frank Brennan SJ, titled 'The Role Played by Religious Groups in the Australian Bill of Rights Debate', at the 'Law and Religion: Legal Regulation of Religious Groups, Organisations and Communities' Conference Dinner, Melbourne Law School, Queens College, University of Melbourne, 15 July 2011.