Freedom for Faith Conference 2019, Sydney
It’s humbling to be in a room of people of this calibre and I acknowledge you all – though it presents some technical problems for me. On matters of theology, I am poorly qualified compared to this company. On matters of law, I will likely fall short of Justice Derrington, Professor Aroney, Mark Fowler and others. Nevertheless, I care deeply about both, and will try and bring the two together.
Similarly, your program will no doubt include some detailed examination of the proposed RDA, and so I don’t intend to spend all of my time talking about it, though I will make some comments that I hope you will find useful.
Instead, I’ll go to the context in which we find ourselves participating in this debate, and having to make the case for why we need to have protections for religious liberty.
For too often, those who are doctrinaire secularists will say this is a weapon for Christians – and indeed other faiths but it seems to be Christianity that rouses the animus of the doctrinaire secularist most –to impose their beliefs on those around them.
You have no right to impose your values on others! They will shout. For our public dialogue has become awfully shouty in recent years.
“You just want to force your faith on others!” The undertone, though it isn’t always put into these words, is: “you want to harm people who are different to you.”
And nothing could be further from the truth. It’s a way of shutting down conversations about difficult subjects, and shaming Christians into silence. Telling them they don’t deserve to be heard.
For most people living for most of human history, this would have been a bizarre thing to say.
It also betrays an ignorance about Christianity. For coercion simply doesn’t work: the Lord gave us free will so that we can voluntarily come to Christ, the Holy Spirit being what enables inner change rather than the force of any man-made law. That’s why Christians don’t argue for or against laws just to dominate others.
It’s interesting that the accusation of imposing values on others is applied not just when anyone of a Christian bent – for whatever reason (and not necessarily for a religious reason) seek a law’s enactment or amendment. It is also an accusation cast when – as was the case in the marriage debate – some religious groups advocate in favour of the status quo. That was regarded as Christians improperly imposing their values on others too.
And yet, retaining cultural space for the value of marriage as a lifelong, sexually exclusive union of a man and a woman who are open to children does not betray a desire to oppress those who are in same-sex relationships. Most Christians – me included – acknowledge the commitment and care that so many same sex couples have for one another and that they regularly care for children. To acknowledge and accept that these are good people entitled to their freedom does not mean we need to cast aside the value to society of doing all we can to produce and keep a substantial proportion of families where – to use Rev Dr. Andrew Cameron’s words “stable, loving, harmoniously married men and women are open to bearing and raising children, and that there are likely to be good reasons for a child to have a kind mother and a caring father… A good society must also accept, support and care for families that are not like that, but we can still aim to enable many more to become like that. To concede this cultural space to marriage doesn’t compromise the freedoms of same sex couples.”
To my mind, he puts it so well.
You might think I’m a little crazy to be going over what can seem like the old ground of the marriage debate. But the reality, for present political purposes, is that we are dealing with its hangover in today’s debates. Whether it was the attempt in last year’s push from Labor and the Greens to remove the ability of faith-based schools to teach and operate according to their values when it comes to policies on students and teachers, or the case for the protection of religious liberty in legislative form, each is a measure that reflects the legal consequences of the changing shape of society that has come from the amendment of the definition of marriage. We should be alive to the potential for the many faith-based charities that operate with a traditional view of marriage to no longer meet the public policy tests for charitable status. That would be a devastating blow to the work of many service organisations associated with the Christian faith.
Confronting our attitudes to gender is on the horizon, and it will ask Christians to consider whether the politically correct position that there are no gender differences between the sexes is something consistent with doctrine. Gender differences might be hard to clearly articulate without appearing to lean in to stereotypes, but nevertheless we know there is a real – if sometimes mysterious – difference, and precious, measurable benefit that children get from the presence of both a mother and a father in their life.
Our respect for women, and our comfort with the idea that women are equal to men, is not the same as the idea that women can simply decide to become men and vice versa. I’m sure it was never the intention of feminism to see women’s sport become a farce in which high performing women athletes can no longer fairly compete with biological men who now identify as women. And our desire not to offend people who struggle with their gender identity and biology should not mean that we are too afraid to speak up for those who need it – including the increasing number of children who are being subjected to serious medical procedures and hormonal treatments for gender issues to which it cannot be within the capacity of a child to consent. Adolescence is confusing. Indulging these measures on children amidst the personal and identity growth of adolescence when they lack the maturity to make decisions of such serious consequence is an abdication of responsibility from the adults around them. We wouldn’t let a child drive a car, or sell beers behind a bar, or vote, or sign a contract. Yet, we’ll let them sign up for irreversible gender treatments that lack long term scientific support and have consequences that extend into mental health, fertility and elsewhere. This is about so much more than letting children decide what they want to wear.
And yet – most of us wouldn’t want to restrict the freedom of an adult to do whatever they want to their body.
It makes me think of the difference between acceptance – a virtue Christians should and mostly do strive for – and affirmation. Accepting those that are different is a world away from acceding to a demand from those who are different that we endorse their choices uncritically.
The fact that so little of this complexity is engaged with or understood in the conversations that play out in our media or in most of the debates led by our political class reflects the shallowness of wider society’s intellectual engagement with the issues of our day. And it makes it easier to shut down and shame into silence anyone whose view is not in vogue. But, as GK Chesterton said, fallacies do not cease to be fallacies because they have become fashions.
So, as we engage with the question of the terms and scope of the RDA that has been proposed by the government, we are called on again to answer the accusation from doctrinaire secularists – “How dare you impose your beliefs on others! What about the separation of Church and State?”
Already Equality Australia has claimed that the draft RDA “hands privilege to people of faith over everyone else” and says that this is something unacceptable in a secular, egalitarian society.
It shows how far apart these two cultural views are at present. For no one in the religious community has asked that they be privileged over everyone else, nor does the draft act do so. The ask is simply that they be able to live according to their deeply held personal identity – which for a Christian is an identity in Christ. That should not be regarded as anything lesser than the rights of a person whose person identity is deeply connected to their same sex attraction. For a Christian, it is no more optional than the person claim of the LGBTIQ person that “this is deeply who I am”.
And the call on the secular in that statement harks back to persistent misunderstandings about what we mean by the separation of Church and State.
As I’ve mentioned earlier, the hysterical claims from doctrinaire secularists of the rise of a religious right cannot entail the eradication of the church-state distinction for the simple reason that it is not consistent with theology. I wish more people understood that.
At the time of the concept of the separation of church and state was fleshed out by minds like Jefferson and Locke there were real challenges on the table to the concept.
At the time of Locke’s 1689 “Letter on Toleration” religious leaders were using power over body and property to punish people who did not believe, and at the time of Jefferson’s letter there were taxes levied on Baptists in Connecticut because they were not of the legally established congragationalist denomination, though I understand they had a right to seek an exception they found the fact of having to do so an affront. Neither problem – nor anything like it – is on the table in Australia.
There is no hint of any compulsion to believe, and no suggestion of a state religion, in our political consciousness as a nation.
Instead the phrase “Separation of Church and State” has become a code for a demand to keep religious beliefs away from politics, whatever that means.
Even mentioning God in the public square is unacceptable to doctrinaire secularists.
There’s a world of difference between separating church ministry from government responsibilities, and trying to take faith out of the public life of our community altogether. The first was achieved long ago, the second is simply not possible without the substitution of the imposition of an alternative and unofficial state religion: a type of atheism.
It constitutes the demand that anyone who contributes must act as if there is no God, and set aside the influence of any belief in Him they hold.
This is not a religiously neutral position – it is aggressive and exclusionary. And it underpins much of the public commentary we see on issues of sexuality, gender and marriage.
Australian society and community cannot be disentangled from its Christian roots, though its relationship with those roots will evolve with our history. The demand to adopt doctrinaire secularism – to force a disentanglement – reflects a misunderstanding about the nature of representative democracy.
It’s not fair, practical or reasonable to expect all representatives to discard their faith in doing their duty. We shouldn’t demand that representatives are a plain average of the views in their community. They are not a mere proxy. A good representative brings, as Edmund Burke explained so long ago, their best judgment. Just as a good doctor brings good judgment on matters of medicine, a good plumber brings good judgment on water and pipes, a good representative brings good judgment on matters of policy and society, informed by their efforts to talk to and understand their constituents.
I don’t pretend that is done equally well by all. But it is what a good representative looks like, and what we should aim for.
For an individual who is a Christian, the effect of belief is real. The bible affects our thoughts. Our identity is in Christ. That is significant, real and not merely a set of facts that can be set aside when performing particular tasks. Demanding it is no more than asking a Christian to pretend, to hide their beliefs.
But that’s a big part of the social trend at the moment. The idea that faith is something that should be permitted only in private, and that it should not be shared. Shame it out of the public square, the workplace, the social dialogue, and lock in in churches and the private home alone.
That’s why the primary political right for which every Christian person should stand is freedom of speech. Because it is the ability to share God’s word, and contest ideas in light of that understanding, that is core to our task on Earth. Without the right to speak freely on all issues – because one’s faith affects our understanding of all things – there is no freedom for faith. It rolls into freedom of assembly, to meet and gather and worship, to share the gospel. And together, these are the heart of the movement for recognition of religious freedom. The social trends that have been championed by doctrinaire secularists are in real terms jeopardising the ability of people of faith to live according to truth and to speak and share that word in the way that God intended.
It is reasonable to ask whether a religious discrimination act is the best vehicle through which to do that. If I am frank, I don’t think it is. It would be far better to remove the tools through which there has been effected an encroachment on freedom of speech and related natural rights. It is probably obvious from that statement that I am not an enthusiast for hooking too much expectation to the promise of international human rights instruments, either.
Because so many of the arguments made in favour of protection of religious freedom are made on the basis of consistency with international law, I wanted to say a little of my reasons for that view.
The international instruments we now call human rights law were put together at the end of the Second World War. It’s impossible to think about those without recognising the impact that the two world wars themselves and the ideological circumstances of the era had upon the psyche of the time.
The horror of the persecution of the Jews was fresh in the mind. The clash between Nazi fascism and Soviet communism was acute.
The concepts of rights that evolved to this point emerged from the natural rights tradition. At their heart, natural rights are about the moral autonomy of the individual, and states are only formed to maintain those general rights. Rather than specifying what a person is entitled to, natural rights stand against anything that encroaches upon them.
But international human rights law is different. It’s specific, itemised, and purports to be exhaustive. Instead of setting out the core general principles, they list out everything the drafters regard as worthy causes, conflating negative and positive rights. Put another way, human rights law jumbles together protection for the individual against state action and demands that the state act. There’s a world of difference between the protection of an individual’s right to pursue his or her own goals without the interference of the state so long as they aren’t bugging anyone else, and a demand that the state tax other people to provide you with particular things you (but not necessarily others) think matter.
International attempts to protect freedom of expression were hampered by this confusion.
The 1948 Universal Declaration of Human Rights stated unequivocally that everyone has the right to freedom of opinion and expression – but it didn’t impose any obligations on states. It wasn’t a treaty as such, just a declaration.
Dissatisfaction with the UDHR led to the International Covenant on Civil and Political Rights.
It was adopted in 1966, and in Article 19 included an apparently bold right to freedom of expression. However, article 19 was undermined by caveats permitting restrictions to “respect the rights or reputation of others” “the protection of national security and public order” and the protection of “public health or morals”. The last one is particularly broad.
More troubling still, article 20 laid the foundation of a new class of censorship. “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Now, incitement to violence had always been a limit on speech under the common law, but it was never contingent on having “national, racial or religious” hatred at its core.
Incitement to discrimination or hostility had no precedent, no foundation, in the history of freedom of speech.
At first glance, this might appear a reasonable evolution given the horror of WW2. But Article 20 had a much more political object, reflecting the clash of two worldviews that were competing for dominance: that of the West, with its belief in individual rights and liberties, and that of the Communist bloc, which absolutely did not.
Marx had expressed his theoretical support for a free press, but the political system he devised was antithetical to free speech. Communists believed it could represent the “general will” and provided ample ideological justifications for limiting speech. 20th century communist states cracked down hard on freedom of speech, because by its very design communism could not tolerate dissent.
The very day of the October revolution, a major liberal newspaper was shut down, its equipment seized, and two days later 20 more papers were suppressed. Draconian restrictions on speech lasted until the collapse of the Soviet Union.
Remember, Lenin is the guy who said: “Why should freedom of speech and freedom of the press be allowed? A government would not allow opposition by lethal weapons. Ideas are much more fatal than guns.”
In the negotiations of the ICCPR the soviet bloc opposed freedom of speech being included. They did not believe people with beliefs with which they did not agree should nevertheless have a right to express themselves. They repeatedly attempted to insert a provision that said freedom of speech and the press should not be used for propagating fascism, aggression and hatred between nations. That might not seem so controversial if you think of fascism as Nazism – but their definition of fascism included liberal capitalist speech. It became apparent in the debates that to the communist bloc, fascism meant anything that was not communist. It revealed that there was a desire on the Soviet side to include sufficient exceptions as to facilitate whatever restrictions dictatorships wished to impose on expression, in a way that would have rendered the more fulsome articles null and void.
In article 7, a restraint on speech was included. After saying that all people are equal before the law was added a states that says all people are entitled to protection against any incitement to discrimination.
An examination of the ways that the votes on the ICCPR went showed that the soviet bloc was dominant in this process.
Of course, at this time, in the UK and other western nations, there had been no need for legislation to compel action against incitement to discrimination. Culture, the force of public opinion, had always been sufficient to deal with any attempts to so incite.
When 2 decades later it was time to negotiate the final and binding version of the ICCPR, it was the Soviet approach that was on the ascendancy. The west sought to limit restraints on speech to those which were an incitement to violence. The Soviets sought an extension of those restraints to “incitement to hatred”.
The Australian delegation argued that people could not be legislated into morality. But the west lost the vote, and an expansive version of article 20 that banned “incitement to discrimination, hostility or violence” was adopted.
During the drafting of the International Convention for the Elimination of Racial Discrimination (1966), the west went down even worse. It requires that all signatories must “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination”.
You cannot overestimate the size of this culture shift. Now, instead of ensuring liberty, states were responsible for the elimination of intolerance and discrimination, something which could not be achieved without suppressing freedom of speech.
Let’s not allow the soviets to get away with their hypocrisy here. At the time their constitution enshrined the right to freedom of expression and a free press – which would have been a joke if so many people were not suffering, and 2.2 million people were in the gulag.
The increasing emphasis on criminalising words that wound, offend or hurt is the brainchild of the very totalitarian states with which western European states were battling in the cold war.
Soviet advocacy for restrictions on hate speech and discrimination were a play for human rights law to approve the suppression of dissent.
In the decade following the west passed legislation prohibiting hatred and discrimination. On the US refused to do so in full.
The Whitlam government felt it could advance the multicultural project by adopting the 1966 convention. The debate about the 1975 Racial Discrimination Act showed how uncomfortable liberals were with the impact it would have on expression.
After its amendment in 1995 the RDA made it unlawful to “offend, insult, humiliate or intimidate another person or a group of people … because of the race, colour or national or ethnic origin of all or some of the people in the group.”
It has been this model which has formed the basis of other discrimination acts passed since. And they are a terrible problem if core to your ability to practice your faith is true freedom of speech.
To my mind, then, the pure solution lies in the rolling back of these restrictions on speech. But I don’t pretend we live in a world where the pure is possible. A religious discrimination act is in some senses entrenching more of the same problem – based on all of the arguments I have just made. And yet, it is probably the most appropriate tool at a time where the rollback of these other encroachments is not realistic, and a bill of rights would not be effective in meaningfully providing protection.
It is tricky to draft something of this nature well, without contributing to the problems that led to its necessity. And yet, it is not impossible. I’m working – along with many of you and my parliamentary colleagues, to make sure the draft is improved so that it is able to deliver meaningful protection of religious liberty.
I don’t want to say a lot about the bill lest I prejudice those efforts – but I expect an audience of this nature won’t allow me to get away with that entirely. So let me make just a few observations.
It does a good job of framing the right to religious belief and practice in the positive, and I know that is culturally important for many in this room.
It attempts to tackle the worst of the encroachments from state and territory laws, in what I will call the Archbishop Porteous problem.
It attempts to deal with what I will call the Folau problem, but with limits that reflect the need for workplaces to get work done.
There is an attempt made to provide certainty for faith based charities.
There are, however, some limitations that need adjustment, and some matters that are missing. I will mention just four.
The first, is that there is no process provided for the reconciliation of competing rights. The siracusa principles – which in a moment of irony that is not lost on me – have their origin in international law and have been tested in other jurisdictions. They were recommended by the Expert Panel. They or something of a similar nature should be incorporated.
The second is that it leaves for judges to decide what are the core tenets and beliefs of a faith. I’m not comfortable with that, particularly given how it played out in the Cobaw case. There should be a process, even in the form of an evidentiary rule, in which a faith can determine for itself what its core beliefs are, and how that will affect its practices.
The third is the exclusion of words that “vilify” from the Archbishop Porteous provision. This section already excludes words that incite hatred or violence. What more would be added by this term, other than to allow the elastic exclusion of words which a particular listener doesn’t like? I’m concerned that this is a gap that would be well exploited simply because the term’s meaning hasn’t been pinned down in a way that has clear boundaries, or that clearly does not overlap with the existing matters which are covered.
The fourth is that it is not clear that faith based commercial activity conducted through a corporate vehicle would be covered.
There are other areas in which I seek improvement – and no doubt many of you will have other items on your lists too. But my overall view is that it is a decent foundation, and it can be shaped into a meaningful protection for the freedom of people of faith into the future. And that is something worth joining together and working for.