The Human Rights Commission has been conducting an inquiry into freedom of religion in Australia for over a year. The only question about its outcome is how bad it will be.
The tone was set when the inquiry was announced in September 2008. The ABC reported the Commission’s Race Discrimination Commissioner, Tom Calma, expressing concern (in the ABC’s words) “at evidence of a growing fundamentalist religious lobby, in areas such as same-sex relationships, stem-cell research and abortion”. I am not a fundamentalist religiously, politically or morally. But I was not aware that being a fundamentalist was against any Australian law; nor am I aware why this should be of any concern to a Race Discrimination Commissioner. This alleged fundamentalism is apparently one of the main reasons for the inquiry, and this attitude—that religious opinion and religious people in the public square are somehow a problem, perhaps even a danger—runs through the discussion paper the Commission issued to commence the inquiry.
In case there was any doubt about the matter, in August Mr Calma and Conrad Gershevitch delivered a conference paper on the inquiry which opened with these words: “The compatibility of religious freedom with human rights is the subject of the most comprehensive study ever undertaken in Australia in this area …” (emphasis added).
Let us spell this out: the clear meaning of these words is that religious freedom is not a human right and may not be compatible with human rights. This is an astonishing claim from a senior officer of the body responsible for the protection and advancement of human rights in Australia. Mr Calma announced the inquiry in a similar vein, comparing religion and human rights to oil and water—substances that do not mix.
There are two obvious fallacies in what Mr Calma is reported as having said. The first is that religion is somehow opposed to reason, irrational. The second is that the opposition to the destruction of human life involved in, say, abortion depends upon premises peculiar to religion, and not upon simple principles of justice common to all humanity.
Mr Calma and Mr Gershevitch conclude their paper by suggesting a greater role for government in managing religious freedom; a role not in “the governance of religion” (of course) “but [in the] moderation of the public sphere in which faith communities necessarily come into contact with each other … As in other domains of human interaction … the hand of government, even if gentle and gloved, may be required to ensure the public good.” No doubt we are to be reassured by the prospect of a nanny state rather than the jackboot. If these individuals have their way, religious people in Australia can expect much more government restriction and interference, “even if gentle and gloved”. All of which simply underscores the need for a different sort of inquiry; not into whether religious freedom is compatible with human rights, but into whether this inquiry of the Human Rights Commission is compatible with human rights.
The problem for the Commission and those who share its worldview is that human rights often get in the road of their particular secular agenda. The rights to life, to marriage, to family; the recognition of the family based on marriage as the fundamental unit of society; the rights of parents to determine the moral and religious education of their children; and the rights to freedom of religion, belief and conscience, are all recognised by the major international human rights agreements. They also stand squarely in the road of the radical autonomy project which the extreme Left, the anti-religious Left, is pushing. This is the main reason why these inconvenient rights have been read down, reinterpreted and displaced by other, newer “rights” such as those to abortion, euthanasia, anti-discrimination and same-sex marriage, and all they carry with them. Is the Commission genuinely committed to human rights as agreed between the nations in the major treaties, or is it actually committed to overthrowing some of them for radically different ideas?
Another incident has emerged in the last week in Canberra which is of some long-term significance for freedom of speech and religious liberty.
In response to the same-sex legislation in ACT, Archbishop Mark Coleridge issued a carefully worded statement opposing same-sex civil unions, acknowledging the rights of homosexual people to justice, but pointing out the differences between desires and rights and the unique advantages the marriage of a man and woman brings to the spouses and their children. In doing so the archbishop was defending the national law of the land on marriage and defending the role of mothers and fathers.
This spurred the ACT Human Rights Commissioner to public utterance describing Archbishop Coleridge’s statement as “unhelpful”, “getting very close to homophobia” and “starting to skate on thin ice”.
“People should pull back and think what they’re saying”; “people need to be careful they’re not getting to the point of inciting hatred or contempt for gay people”, she continued.
The Commissioner has gone too far in this attempt to intimidate, to silence debate from Christians or indeed any person who, as in this case, merely points out the natural advantages and pre-eminence of heterosexual marriage for society.
No official has the right when the speed limit is 60 kmh to name and shame those they allege to be travelling at 58 or 59 kmh. Indeed the rights of Commissioners to enter public debate and rebuke those who oppose their point of view should themselves be examined. Can the Commissioner be a participant in the game as well as the referee, who threatens to send off a player before the game has started? The new laws are not yet in effect.
This sad little incident demonstrates why majority opinion, and especially those people in favour of religious freedom as well as freedom of speech, should be opposed to a federal charter of rights. It will be used, as it is now used in Britain, to threaten and harass those manifesting religion in public life and especially the Christian religion.
Using Rights against Rights
The Human Rights Commission is part of a bigger problem. One way of stating it is to ask: why is it 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?
Let us first note how human rights statutes, such as the Victorian charter, which claim to implement international instruments, such as the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) have often what is at best a promiscuous relationship to those instruments. Important rights, such as the rights of parents to determine the religious and moral education of their children, are not replicated in the Victorian charter. And, further, the right to freedom from discrimination on the grounds of sex is parodied by being associated with ambiguous categories such as “sexual orientation”, and fantasies of the zeitgeist such as “gender identity”.
Then it pays to look at the small print. The rights included in the Victorian charter can be limited or redefined according to whatever is required “in a free and democratic society based on human dignity, equality and freedom”. Imagine the fun Calma and Gershevitch (and the ACT Commissioner for Human Rights, Dr Watchirs) would have if they were defining a “free and democratic society”! This sounds fine and reasonable, but in fact it is a recipe for trouble and oppression. It significantly exceeds the limitations allowed in international instruments such as the International Covenant on Civil and Political Rights, which only permits some rights to be limited in times of genuine national emergency or when absolutely “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (Article 18 (4)).
Even in times of “a public emergency which threatens the life of the nation”, some rights can never be qualified or reduced (Article 4). These include not only the right to life, and the rights not to be tortured or enslaved, but also the right to freedom of religion and conscience. Other important rights, such as those to free association, free expression, the right to a fair trial and due process, are not included in this category of fundamental or basic human rights, and can be qualified in a time of genuine public emergency. But not the right to life or freedom or religion and conscience. This priority of rights is regularly ignored, and the law decriminalising abortion in Victoria in 2008 is probably the worst recent example that we have seen recently.
The International Covenant on Civil and Political Rights makes it clear that necessity is what permits fundamental rights to be limited in some circumstances, not discretion or preference. But as Professor Patrick Parkinson has pointed out, the clause in the Victorian charter which allows rights to be limited by whatever is required “in a free and democratic society based on human dignity, equality and freedom” gives judges and other decision-makers an enormous discretion to reinterpret, redefine, or simply ignore human rights if the government of the day has other priorities.
The effect is that while human rights are of varied and limited importance, they become secondary to public policy, to the particular values or priorities of governments. Human rights, and especially human rights charters, are to be read in the light of public policy imperatives and applied accordingly. This is how human rights commissions understand their task and explains why they often produce strange decisions which fly in the face not only of the intention but also of the plain meaning of human rights as set out in international agreements and treaties.
Public Policy and Freedom of Religion
Setting public policy is one of government’s most important responsibilities. Government is a creation of civil society; government does not create civil society. In Catholic social teaching we speak of the concept of subsidiarity. Its basic principle is that, wherever possible, social responsibilities should be carried out at the lowest and most local level of organisation, unless this is beyond their capacity and resources. This principle of subsidiarity is directly opposed to the totalitarian principle in which the individual is understood to exist to further the purposes of the state.
So, defence is obviously a national responsibility. Police forces and hospitals can be a national, state or local responsibility. Education, however, first of all resides with families, and only then with local, district, provincial or national government.
Public policy miscarries unless it is informed by the principle of subsidiarity. The role of that principle is to foster key values which are essential to the flourishing of civil society and the common good. It used to be and still should be an important principle of public policy to support and protect marriage, as the basis of strong families and strong communities. This was reflected in the administration of government (for example, through tax concessions for families), and in the administration of law (for example, the decision of the US Supreme Court in the 1870s which prohibited polygamy). In the late 1960s and 1970s, again in the USA, the principle of racial equality was made a priority of public policy, so that colleges or community organisations which were based on racial segregation lost whatever concessions or privileges for which they would otherwise have been eligible.
In Australia today anti-discrimination is becoming a de facto priority of public policy. The particular hay bale flying around at the moment is the approach taken to the protections for religious freedom and freedom of conscience under different anti-discrimination laws at the state level. The churches have had something of a win in Victoria recently, where there was a proposal to eliminate the so-called exemptions in Victorian law which allow religious schools and agencies to exercise a preference in employment for people who share and live out their faith. We have to stop using the word exemptions because it suggests that religious freedom is a government grant or concession, not a fundamental human right. We should insist these rights are protected.
Christians believe that everyone should be free from unjust discrimination, but anti-discrimination laws which do not respect fundamental human rights, such as freedom of religion and conscience, are unjust laws. We should not be afraid to say this. We have a right to foster religious communities. Those who want to cancel out this right need to show why this right should be removed.
In Britain, the situation is difficult. The London barrister Paul Diamond, who visited Australia last month to talk about the charter of rights, has explained that anti-discrimination has become an official priority of public policy in the UK, with serious consequences for the rights of Christians as people who are held to be inherently “discriminatory”.
In the United States, scholars have been turning their minds to the public policy implications of same-sex marriage, which is of course a part of the anti-discrimination agenda. If courts and governments were to decide that the general recognition and acceptance of same-sex marriage should be an important principle of public policy, the consequences for religious freedom could be enormous. Marriage preparation, relationship counselling, decisions about medical treatment by next of kin, school enrolments, sex and relationship education in secondary schools, the hire of parish, school and church facilities for functions and events, and arrangements for married couples in emergency housing, retreat, conference and aged care centres are only the most obvious examples of where Christian beliefs about marriage could collide with public policy on anti-discrimination which prioritises the equal treatment of same-sex marriage.
These great matters must be decided politically and we should not let our minority opponents shuffle them off to the courts, much less to commissions.
The USA and Britain are still a long way away from where we are now. And that is where we want to keep it. We need to be clear about what is happening elsewhere in the world and be vigilant and confident in protecting all human rights, including the right to religious freedom, especially through the parliaments. When the human rights industry starts to treat religious freedom as a problem, it makes itself an ugly Goliath. But we should not be cowed. Due to age and arthritis my running days are gone but speaking metaphorically, we should remember instead the example of David, and start running at the foe. We should also remember that David felled Goliath.
This is the text of the Australian Christian Lobby National Conference Dinner Address that Cardinal Pell, the Archbishop of Sydney, gave in Canberra on November 20.