The Enduring Ideas of a Visionary

Gabriël A. Moens AM is Emeritus Professor of Law at the University of Queensland. Confined to his home office last year, he went through his dusty files. He found many papers and speeches, written in the 1990s and earlier, which have never been published. To our great profit he has collected twelve of these papers and published them as a book. He has also included three recent papers that deal with current topical issues.

These papers, placed in chronological order, dealing with issues that are still very much debated in Australia. For example, one of the acrimonious debates that took place in Australia from the 1960s to the 1980s involved the right of people to disobey laws. Although some academics argue that civil disobedience should always be non-violent, Professor Moens reminds us, in “On Civil Disobedience”, that there are instances of grave injustice which can be remedied only through non-peaceful means:

In general, civil disobedience becomes a societal problem when the normal channels of social change do not function properly any more or whenever serious grievances are not heard. It could be argued that a system does not function adequately any more when some groups have entrenched power positions in society and use their power to impose their will on weaker or vulnerable classes of people …

When the opportunities for change which are provided by the legal system are deficient, civil disobedience is often an effective and expeditious way to challenge the law. It is the function of civil disobedience to close the gap that exists between social reality and the law … Civil disobedience, in summary, is strong medicine which renders a society, which otherwise may become less democratic, more responsive to its problems.

In the late 1980s and 1990s, Professor Moens regularly spoke at meetings of the National Civic Council. In September 1989 he addressed a community forum about “the new intolerance”. Some of his reflections are incorporated in Chapter 3 of this collection, which provide a parents’ view on the introduction of “Values Clarification” courses in Australian schools. For example, in Queensland in 1988, the Education Department issued “Interim Guidelines for Human Relationships Education” (HRE). These guidelines, according to Professor Moens, were nothing but “a sophisticated scheme which makes it possible to attack traditional values cherished by many families”. The paper refers to a booklet for Queensland teachers which conveyed the postmodernist message that “there are no absolute values, and that behaviour can neither be described as right or wrong”. On this view, “in matters of sex, drugs and personal behaviour, a child is only liberated if he or she can make an independent decision”. As Professor Moens pointed out: 

HRE is nothing else but the imposition upon students of a humanistic, relativistic lifestyle which denies that absolute standards are necessary to maintain a cohesive society, which in turn, is indispensable for the creation of prosperity. Of course, the proponents of HRE, to the extent that they argue that the impartation of absolute moral standards deprives a child from attaining moral autonomy, are themselves guilty of elevating relativism to the status of an absolute principle.

Professor Moens spent the first half of 1991 at the University of Notre Dame in Indiana. There he contributed a paper to a conference on the rights of ethnic minorities. He identifies a tension between the inalienable rights of the individual and the legal protection of so-called “rights of the group”:

some persons may not view themselves as members of the group even though they are perceived by others as members of that group. It is not surprising that discussions about ethnic conflict today are replete with fallacious reasoning because proponents and opponents of the group protection approach too readily assume that a group is a monolithic entity …

While still at Notre Dame in Indiana, Professor Moens witnessed a proposal to the University Senate to honour the contribution of mothers to the family. He wrote a letter in full support of the proposal, which appears as Chapter 5 in this collection. He argues that such proposal was deeply commendable because, using the language of Pope John Paul II, “the mentality which honours women more for the work outside the home than for their work within the family must be overcome”: 

an academic with a full-time wife and mother at home himself deserves a substantial salary increase to compensate him for the additional energy and competence which he may bring to his University work. This, in turn, also indirectly compensates the academic’s wife for she knows that her efforts in maintaining a happy family home and nurturing of children leads to, or results in, greater family prosperity.

Professor Moens’s conclusion was eminently reasonable, especially in times where tax policies increasingly burden the single-income family.

Chapter 6 is based on his speech celebrating the National Civil Council’s fiftieth anniversary in 1991. He reminds us of the NCC founder, Bob Santamaria, a man of great vision and moral integrity who was able to identify the highly oppressive nature of communism. Santamaria countered communism’s pervasive influence, inter alia, by establishing the Industrial Groups in key trade unions. His heroic struggle for freedom was carried on initially with the providential support of the legendary Archbishop of Melbourne, Daniel Mannix.

Professor Moens explains that it is “common knowledge” that a revolt against pro-communist infiltration in the Australian Labor Party resulted in the creation, by union organisers, of the Democratic Labor Party. This important development was responsible for a split that fortunately kept the Labor Party in opposition for eighteen years, until 1972. When Soviet-style communism collapsed and the moral bankruptcy of such socialist models was revealed, Professor Moens wisely noted in 1991:

The Left aggressively imposes a social agenda in which it seeks to mandate conformity with its relativistic and humanistic values across the range of human behaviour. Thus, we find that traditional human behaviour is vilified as a vituperative expression of sexism or racism. Encouragement for the vocation of homemaker is described as a particularly odious form of sexism. Instead, feminism, preferential treatment, alternative lifestyles, infidelity, and politically correct speech, just to name a few, are variously described as desirable or even liberating orthodoxies.

These new orthodoxies … create a climate of intolerance, and instil a sense of genuine fear into a great number of decent people. Interestingly, the similarities between Communism and the present orthodoxies are more striking than their dissimilarities. By this I mean that both Communism and many of the so-called “progressive” ideas in our society assume that Man can fashion the ideal world. Those who are deemed to be enlightened enough to see the value of these new orthodoxies then proceed to impose them upon the other members of society.

He explained that these “new orthodoxies” are “sophisticated manifestations, like Soviet-style Communism until its spectacular collapse, of an obsession to create the ‘ideal’ World which is totally divorced from God”. He notes “progressive” ideas that do no more than “progressively erode our ability to freely express our opinions”:

There are many pieces of legislation which, collectively, amount to an impressive and sustained assault on freedom of expression. These pieces of legislation, if assessed individually, may sound deceptively reasonable and innocent. But their collective impact upon freedom of expression is profound. Other pieces of legislation increase the extent to which people become dependent on the Government, thereby relieving individuals from the responsibility to look after their own welfare. It creates an all-powerful Government and an impotent, submissive, and obedient group of citizens …

Chapter 7 provides a critical assessment of Australian education from 1992. Professor Moens laments the demise of the teaching of grammar in schools and universities:

Some students finish high school without being able to distinguish between an adjective and an adverb. Many people, including some who consider themselves to be educated, do not realise that their linguistic abilities are deficient. Even a perfunctory reading of newspaper articles reveals that they are replete with many grammatical errors.

Professor Moens identifies a huge failure in Australia to reward academic excellence. Too much emphasis is placed on extra-curricular activities, he says, “to the point where being bright at school almost certainly leads to unpopularity”. He observes “a climate of mediocrity”, which he regards as the by-product of a faulty education philosophy that is heavily promoted in our schools and universities:

The educational philosophy which requires the discouragement of high achievers is aggressively promoted by many teachers in this country. Those who dare to question the desirability or propriety of implementing this philosophy are usually regarded as reactionaries who are out of touch with some modern, yet largely untested, education teaching theories … How is it possible to inculcate in students the values of excellence, achievement and pride if these values are treated with hostility by increasing number of teachers, who often are only interested in imposing upon students their preferred ideological and philosophical rhetoric?

Chapter 8 focuses on the concepts of “diversity” and free speech in the context of institutions of higher education. Professor Moens explains that “policies of diversity” inevitably engender racial and all sorts of other group conflicts. Those who benefit under such a discriminatory environment will always be envied by outsiders who view such achievements as the sole products of a preferential admission program. Unfair discrimination is the inevitable outcome of “affirmative action” policies that effectively exalt the members of a favoured group regardless of personal merit or achievement. And yet, issues of “diversity” are difficult to address because “those who dare to question the prevailing policy are ostracised and harassed”.

A related issue is the adoption by most universities of restrictive speech codes. Professor Moens contends that such attempts by university administrators to regulate and enforce social etiquette generate an “artificiality of discourse” that inevitably results in a serious obstacle to true openness and authentic academic freedom.

He provides a few examples of obstacles to academic freedom, and explains that these examples are not isolated, but are part of what he regards as “a disturbing and appalling trend towards the imposition of politically correct views on students and staff”. In his opinion, “such imposition is incompatible with the idea of a University as a place where even unpopular and idiosyncratic views should be discussed without fear or favour”.

One of the major debates in Australia in the 1980s and 1990s focused on the concept of “multiculturalism” and the claim that our nation should develop a language policy for a “Multicultural Australia”. Being “ethnic” himself, Professor Moens offered his own contribution to that important debate. In Chapter 9 he comments on the manner by which “ethnic tensions arise when attempts are made by ethnic leaders to increase the political leverage of ethnic groups”. The concept of multiculturalism becomes problematic, “if it is interpreted as anti-assimilationism and ethnic separatism, involving, but not limited to, the demand often heard nowadays that linguistic groups have the right to have their own language, and its corresponding values, supported by governments”.

Professor Moens is a Roman Catholic, and Chapter 10 is about the authority of the Pope. This paper was written in 1993, in the context of a campaign by left-wing academics in Catholic universities to discredit the authority of the Pope in relation to birth control and abortion. He notes that Catholic universities are fully entitled and have the perfect right to repudiate any claims which are incompatible with traditional Catholic values and principles. In fact, Professor Moens, echoing Professor Ralph McInerny’s views, firmly believes that “Catholic universities should reaffirm their strong support for the ethos and values upon which these institutions are based”. This, in his opinion, “is eminently reasonable and could be regarded as an exercise of a University’s institutional academic freedom”.

When he was an associate professor at the University of Queensland, in 1994 Professor Moens wrote “Our Free Australian Society: Promise or Reality?”, which appears in Chapter 11. One of my favourite papers in this collection, it begins: 

In the past, freedom of speech has been taken for granted by most Australians. However, there has recently been an increasing number of attempts, by governments of both persuasions around Australia, to restrict the right of Australians to freely express their opinion. Even if Australians speak out on issues of concern to them, their views are sometimes ridiculed and not taken seriously by our leaders.

Professor Moens explains how Australia was “developing into a society where governments, policymakers and trendsetters seek to impose their view on others, thereby effectively impeding the right of others to express their views with impunity from punishment”. Although he was encouraged to see the 1992 cases whereby the High Court at least acknowledged a freedom of political communication derived from the nature and structure of the Constitution, Professor Moens expressed concern about “a wealth of legislation and practices which impedes attempts by Australians to speak out about controversial issues”. For example, in 1989, New South Wales under a Liberal government had enacted the Anti-Discrimination (Racial Amendment) Act, which provided for the imposition of criminal sanctions on people whose speech appeared to incite “hatred towards, serious contempt for or severe ridicule of others”. The maximum penalty was six months in prison. As Professor Moens stated:

This legislation is obnoxious because a person could be punished under it even if he or she did not intend to incite racial hatred. The legislation does not require that intent be proved: all that is required to be established beyond the expression that it is “threatening, abusive, or insulting” is an objective likelihood that hatred will be stirred up. It overlooks that the emergence of hatred may be an indirect and completely unintended effect of the utterance and may be the product of a totally unreasonable and irrational response on the part of listeners.

Professor Moens is suggesting here that the more a person is bigoted and intolerant, thereby deserving to be robustly criticised, the more he or she might use such laws to silence different points of view. He was prophetic in this paper in predicting that, rather than resolving the problem of racism or other forms of unfair discrimination, such provisions would eventually be used “to justify grave interferences with freedom of speech, and it could become a dangerous means of censorship of ideas unpopular with current intellectual orthodoxy”.

Professor Moens refers to a number of notorious, yet not isolated, examples of the contempt in which Australians are held by many politicians whose actions indicate that, in their view, the people of this country are too “ignorant”, “bigoted”, and ultimately “unable to make decisions for themselves”. He explains how the political establishment and cultural elites “assume uncritically that they know what is best for the people of this country, rather than letting the people speak for themselves”. Such privileged individuals take a special delight in imposing their “progressive” policies and views, for example, by encouraging favoured minorities to complain about mainstream Australians.

Professor Moens then endeavours to describe his own vision of an ideal Australian society. Such a society, he argues, “is a society where there is no attempt by governments or lobby groups to sanitise the expression of people”. It is a society where there is genuine freedom of choice and “which adheres to the principle that the people themselves, as opposed to the government, know what is best for them”. His ideal society is foremostly “a society where governments only interfere with people’s lives when necessary to prevent serious harms to others”. He concludes: 

My ideal society is a society where the people should be given a chance to look after their own interests, rather than having these interests determined by governments. The best government is the government that governs least. This will only be possible if the size of the elaborate welfare state, which has been created during the last decades, even with the help of the Coalition, is substantially reduced. Government largesse creates dependency on the government … The welfare state, in turn, creates and fosters the establishment of mighty bureaucracies, the members of which can hardly be restrained by law. Such a system is fundamentally opposed to a desire, among people, to take the future in their own hands, without being unnecessarily restrained by Big Brother. I think it’s time to speak up!

Even in 1994 Professor Moens was realistic enough to understand that his ideal would not come into fruition. He deeply lamented that in Australia there are too few politicians who really care for the principles of constitutional government and the basic rights of the people. He was unconvinced that we would have the kind of conservative leadership that is capable of confronting the Labor Party: 

I have heard it said on numerous occasions by Coalition politicians that there are no longer pronounced ideological differences between the Coalition and the Labor Party. Nevertheless, the Coalition wants us to vote for them because they claim to be “better” economic managers. Such reason results … in the absence of ideological differences between the two main political protagonists, [and] voters do not have compelling reasons to vote for the Coalition.

Professor Moens has always been interested in the theoretical and practical aspects of management. When he was the Dean of Law at Murdoch University, he revolutionised that institution and was determined to avoid the notorious mistakes made by the previous “managers”. I had the privilege to work with him as a legal academic and eventually as Associate Dean for Research during those golden days of Murdoch Law School.

Chapter 12 focuses on actions and practices by senior management which may result in the mismanagement of their organisations. In particular, Professor Moens identifies at least three management practices which, in his experience as university administrator (he also served as Pro-Vice-Chancellor at Murdoch), constitute instances of “mismanagement”: first, the appointment of managers to their level of incompetence which, in turn, may lead to occupational stress and low staff morale; second, the appointment of employees who are deemed to be less “intelligent” than, or “inferior” to, the appointers; third, the centralisation of resources which requires constant restructuring and associated change management.

One of Professor Moens’s main areas of expertise is the interplay between law and religion. He has written a number of important academic articles on the subject in law journals in Australia and the United States. He was thrilled when I invited him to write the preface to my three-volume collection The Christian Foundations of the Common Law. He later launched in Brisbane the Australian volume (Volume III) of this collection. In his powerful speech, which is reproduced as Chapter 13, he concentrates mainly on the relevance of Christianity in Australia. He soberly reminds us:

the foundational values and traditions of this country are being eroded, dismantled, and in any event, seriously questioned and attacked. Everything has changed in the last twenty years or so. These changes have affected our lives, from cradle to grave. They include, and relate to, how and when we are born, how marriage is defined and extending to the way in which and when we die.

In our universities and intellectual circles, there is hardly any discussion of the Christian, historical and philosophical foundations of the common law. These institutions routinely and aggressively promote secular ideas and ideologies as the only acceptable views. In law schools, the teaching of legal philosophy and history is practically non-existent. Hence, we are creating a generation of lawyers who are largely ignorant of the Christian heritage of our common law. Moreover, there appears to be a determined effort to smear these traditions. Whatever was taken for granted until recently, and deemed necessary for a happy and satisfying life, is severely questioned by our policy-makers, legislators and trend-setters.

At the time of preparing this collection, Australia was facing the COVID-19 pandemic. Chapter 14 considers the role of the state in the protection of public health. First, the draconian measures imposed on people to allegedly combat the coronavirus are examined. Professor Moens characterises such measures as deeply paternalistic, having an enormous and deleterious effect on the basic rights of people, including unintended consequences for the protection of their own health. Finally, he assesses the legality of these measures, particularly in the light of their perceived unconstitutionality.

Professor Moens’s Enduring Ideas: Contributions to Australian Debates is one of the finest books I have ever read. I can hardly express the importance of this splendid collection to a better understanding of contemporary Australia and the great challenges we face as a nation, and potentially for a very long time.

Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, in Perth. He is the editor of the festschrift A Commitment to Excellence: Essays in Honour of Emeritus Professor Gabriël A. Moens (Connor Court, 2018)