Experiences from 2016: Freedom of Religion Under Tasmanian Constitution and Anti-Discrimination Law - Freedom of Religion or Belief Conference, Notre Dame University, Sydney

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Home > Archbishop > Addresses > Experiences from 2016: Freedom of Religion Under Tasmanian Constitution and Anti-Discrimination Law - Freedom of Religion or Belief Conference, Notre Dame University, Sydney

I grew up in post-war Australia. It was a time when the Catholic Church was growing strongly. There were plenty of vocations to the priesthood and religious life. Catholic education was emerging from a struggle to receive State Aid and schools were flourishing. Catholics were being freed from the sectarianism of the past and became socially mobile, entering professions and finding general acceptance and even respect.

During this time no one would seriously challenge that Australia was a Christian nation. It embodied Christian morality in its culture and law. It recognised the importance of Sunday as a day for Christian worship -  shops were closed. We lived through a particularly blessed period of economic growth and social advancement.

It was all too easy to forget that what we owed not a little to the   Christian tradition and the contribution that Christianity had made to the culture here in Australia.

We did not properly realise that anything which threatened Christianity and Christian belief would also threaten the very way of life we had come to enjoy, particularly marital and family prosperity and our freedoms.

The contribution of Christianity

We can rightly attribute the freedoms we enjoy to the Christian culture which has shaped our nation. Indeed Western civilisation advanced not only science, technology and economics, but also the social patterns we have come to know. A Christian understanding of the nature of the human person and the nature of human society has shaped the Australian culture.

As Christians, we believe that each human person is a unique creation of God and possesses an immortal soul. We believe that we human beings have the dignity of being created in the image and likeness of God. We believe that social interaction should be characterised by the exercise of the cardinal virtues of prudence, justice, fortitude and temperance. We as a society, influenced by Christianity, have learnt that mercy, forgiveness, humility and self-sacrifice are the keys to human flourishing, harmony and peace among people.

Apart from the First Peoples, contemporary Australia is a nation of migrants who have come initially from Europe and have brought with them the Christian culture. Christianity has made an enormous contribution to the quality of individual and social life that we enjoy.

Threats to our freedom

However, it became more evident from the 1970s that dark clouds were starting to appear on the horizon.

The Western world entered a period of profound social changes. Authority generally was challenged. The so-called sexual liberation movement was a powerful social influence.

The post-war desire for a sound moral basis for civilisation reflected, for example, in the Universal Declaration of Human Rights was being replaced with a radical individualism and a secularism which fostered moral relativism.

We are now at the tipping point. Over the last 50 years the percentage of the population identifying as Christian has dramatically declined, falling from 88% in 1966 to 52% in 2016. At the same time those identifying as ‘no-religion’ have grown from 0.8% in 1966 to 30.1% in 2016. These statistics are alarming. For the first time in the history of European settlement in Australia, we sit on the verge of becoming a majority non-Christian country. The drop in Christian affiliation has for the most part been replaced by those identifying as ‘no-religion’.

Alongside this is a growing aggressive and intolerant secularism. There are forces at work in Australia that are intent on dismantling the very bedrock elements of our society: marriage and family. These forces want to redefine what it means to be human and propose that even the biological sex identity we are born with is open to change. In the name of equality, diversity and inclusion they are demanding that the society abandon what they refer to as “heteronormativity”.

Homosexual activists and activist organisations have undertaken extremely effective social and political campaigns, first to de-stigmatise same-sex sexual activity and second to have the legal definition of marriage changed to include these types of relationships. 

What has come to be more and more evident is that there is a striking intolerance among those who are promoting tolerance. There is a strange denial of value of diversity among those who advocate diversity. There is a lack of inclusiveness among those who demand inclusion. 

Christians, who are still a majority in our nation, are being increasingly targeted. The media has become more and more strident in finding fault with Christians. Legislation is being designed to prevent Christians expressing their faith. Anti-discrimination laws are being used to silence any Christian who dares speak out against these efforts and give expression to what has been universally accepted up to the most recent times.

Anti-Discrimination law

Through this period of great social change there was a great effort to address many very serious forms of social and political discrimination, in particular racial and sex discrimination. There is no doubt that action was required. There was clear discrimination against Aboriginal people and those of colour, and against women.  But these movements went far beyond eliminating unjust discrimination as they sought to radically change society according to what is now described as “identity politics”. 

A new way of seeing the human person was being proposed. For some (socialists) this meant the state become the new ‘god’ while for others (liberals) it was unfettered human freedom. These diverse social movements all seem to have one thing in common: an effort to reject Christianity and the influence it has had on Western society.

I believe that modern anti-discrimination law in Australia, while instituted with the best of intentions, poses a very real threat to human freedom. I further contend that the attack on Christians being able to publicly express their beliefs represents the first major battle in this attack on human freedom.

While the Catholic Church may not be perceived as the great defender of freedom through history, properly understood Christian belief is perhaps the original defender of human freedom. Christianity converts by presenting its teaching, it does not convert through the sword. When those who had been following Jesus walked away or could not accept his teaching, he did not get his disciples to threaten them with violence until they believed. In fact the whole nature of the Christian faith was that to be genuine it had to be a free personal decision, a free act of the will.

In political terms, it was Christianity that separated the civil authority from the religious authority in the society. Prior to Christ, both were unified or invested in the ruler who was both chief and god. Christianity freed human beings from the absolute rule of arbitrary human authority. Christ radically limited the proper authority of civil rulers, they could no longer claim to be Divine and all powerful, and impose their absolute rule on the society. The Divine moral law now limited what political rulers could do. The Church now invalidated the exercise of civil authority when it promoted a course of action that directly contradicted the Divine moral law.

The rise of anti-discrimination laws, not just in Australia, but in Western countries, arose from a growing interest in social justice in Western societies in the 1960s and 1970s. This was perhaps most clearly demonstrated in the United States with regard to the civil rights movement which challenged racial discrimination; in particular, the policy of segregation.
The movement to end unjust discrimination against people of colour was supported by those holding a range of different political and religious beliefs. From extreme socialist groups, to feminists organisations, to libertarians groups and the Christian Church.

However, the Anti-discrimination legislation which was used to overcome clearly unjust discrimination soon began to be applied more and more widely.

It is interesting to note that in the 1977 Tasmanian Law Reform Commission Report on Discrimination on the Grounds of Sex resulted in a majority and minority report. The majority report advised that, “Discrimination could be adequately addressed through present legal mechanisms,” and it recommended against passing specific anti-discrimination legislation. The minority report argued for such legislation and commissioner to oversee its operation.

The fear was that an Anti-Discrimination Act would give the government increased powers to control the beliefs and actions of citizens and impose its own ideology on its citizens. One member of parliament at the time likened it to ushering in totalitarian rule, arguing it was like something you find in a dictatorship.

The exercise of justice in the area of discrimination is fraught because there can be different views about the nature of justice. For some, justice is simply the rule of strong, while for others there is a natural universal standard of justice which can be grasped through the use of human reason. For others, justice is about absolute equality.

Justice, or rendering of what is due, first presupposes a particular understanding of the nature and purpose of human existence. From a Christian understanding, rendering what is due can only be understood in terms of God’s plan for humanity. While men and women are equal in dignity, they are radically different emotionally, biologically, psychologically and spiritually.

It would therefore not be unjust to treat people differently depending on the particular matter at hand. For example, in the matter of conscription for frontline combat in time of war. Traditionally, governments have held that it is not unjust to conscript only men for frontline combat national service during wartime. This presupposes an understanding of sexual complementarity, that men and women are different.

What is clear is that, with the loss of the social influence of Christianity, an essentially atheistic, materialist conception of the nature and purpose of human existence has come to dominate society. So much so that virtually any differential treatment of persons due to particular attributes or characteristics is deemed to constitute unjust discrimination.  This simply is not the case.

I am not opposed to law that has the intention and effect of addressing the problem of unjust discrimination in society, understood in terms of the Christian understanding of justice and the human person. The government has a clear duty to prevent such unjust discrimination in our society.

But I am opposed to anti-discrimination law that is premised on a defective conception of justice and the human person and maintains that any differential treatment based on physical characteristics or belief is necessarily always unjust. 

The application of Tasmanian anti-discrimination law has moved in this direction.

A problematic aspect of Tasmanian anti-discrimination law is the move to establish a ‘subjective’ basis for individuals or groups to claim discrimination. It is one thing to establish clear objective grounds for unjust discrimination but quite another to maintain that the state should seek to prevent individuals and groups from feeling hurt or upset by the comments or actions of others. Setting such a low bar for discrimination constitutes an attack on fair and respectful freedom of speech within our society.

I came to understand the social significance of the anti-discrimination legislation when I found myself reported as causing offence when I distributed a text approved by the Australian Catholic Bishops Conference on the subject of Catholic teaching on the nature of marriage. It was distributed to parishes and to parents with children in Catholic schools in Tasmania. In doing this I was fulfilling one of my most basic duties as a bishop, my obligation to teach the Catholic faith.

I never really thought it possible that anti-discrimination law could be used to try and prevent me, as a bishop, from teaching Catholic teaching to my Catholic community in Tasmania. This is indeed the most worrying aspect of the case against me.

What I learnt from this experience was that the anti-discrimination law in Tasmania sets the lowest bar in Australia for speech or actions that are claimed to be discriminatory. 

Section 17 of the Act refers to actions or speech that “offends, humiliates, ridicules or intimidates”. This phrasing is modeled on the troubled Section 18c of the Commonwealth Racial Discrimination Act.

The problem with section 17(1) is the use of subjective terminology, in particular the concept of “offence”. The concept of ‘offence’ is a vague notion which refers to a feeling, a subjective emotional state where one is ‘annoyed or upset’ by something that has been said or done.  While the inclusion of the word 'offence' was motivated by good intentions to ensure fair treatment of all, it has set an unreasonable standard by which to limit speech.  Offence is ultimately a subjective emotion which one experiences in response to words or actions; some may take ‘offence’ to particular words or actions that others actually find profound and insightful. It depends largely on the life experience of the person and the state of their emotions.

Should the desire that no one feels offended become the criterion for the exercise of free speech in Tasmanian society?  I believe that this is an unreal and unobtainable expectation.

Author Salman Rushdie has commented:

The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: do we want to live in a free society or not? Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions.

In a later section of Tasmania’s Anti-Discrimination Act (Section 19) there is a clear prohibition of speech or actions which incite hatred towards any individual or group within society. Here we have a clear objective standard by which to judge behavior, one that requires clear intent by the person held to have committed such an act.

The case against me was finally dropped. This means that there has been no resolution of the issue. All are still uncertain about how section 17(1) of the Act can be interpreted.

In many ways this ‘chilling effect’ is the most serious problem created by the low bar of section 17(1). Tasmanian Christians are now worried about publicly expressing their religious beliefs for fear of someone reporting them to the Anti-Discrimination Commissioner. They do not have the resources or time to defend such a complaint against them so they simply avoid speaking publicly about their belief concerning marriage. Over time, pressure not to speak publicly about one’s beliefs allows the increasing rule of ‘political correctness’ and the further loss of freedoms.
For these reasons I have recommended to government the repeal of Section 17(1) of the Tasmanian Anti-Discrimination Act.

Conclusion

Personal freedom, even within a democratic society like ours, is a fragile thing. There is always a tendency within the state to seek to control individuals. At the present time there are forces at work which seek to weaken mediating institutions which may inhibit the free exercise of power within society, in particular the family and the Church.

Lest democracy fall into tyranny, religion is needed to moderate its absolutist tendencies. Alexis de Tocqueville, in his brilliant critique of the American experiment in democracy, commented that democracy will only work if it allows religious belief.

He states, “Despotism may govern without faith, but liberty cannot. Religion is much more necessary in the republic … than in the monarchy … How is it possible that society should escape destruction if the moral tie is not strengthened in proportion as the political tie is relaxed? And what can be done with a people who are their own masters if they are not submissive to the Deity?” 

Archbishop Julian Porteous
February 2018