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Acting on Conscience: How Can We Responsibly Mix Law, Religion And Politics?

Acting on Conscience: How Can We Responsibly Mix Law, Religion And Politics?

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Acting on Conscience: How Can We Responsibly Mix Law, Religion And Politics?

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Apr 18, 2016


Is there a place for personal beliefs in public life?Is a Catholic health minister in a fit position to legislate on women's issues such as the right to an abortion pill? When the prime minister invokes church leaders' support in going to war with Iraq - and those church leaders tacitly approve this - is there a moral issue at stake?In Acting on Conscience Jesuit priest, human rights lawyer and academic Frank Brennan tackles these issues head on. He explores some of the legal, moral and ethical issues that capture the public imagination - and critically examine the figures in public life who pass judgement on them. Issues covered include:The War in IraqSame-sex marriage and parentingLate-term abortionPolitics and the judiciaryThrough detailed analysis of examples from both Australia and the US, Brennan asks: Is there a place for personal beliefs in public life? As citizens and voters, how can we ensure that in the future, our leaders will speak for us - but not out of turn?'In an age of fear and bigotry here is a welcome book of courage and conscience.' SENATOR BOB BROWN, Australian Greens
Apr 18, 2016

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Acting on Conscience - Frank Brennan



A meddling priest’s search for answers

Like-minded, liberal-minded atheists who agreed to live together on a remote island could decide to maximise their individual liberties and minimise government interference with their lifestyle choices. They might succeed in maximising personal choice and liberty for a short time – until there was a need to reach agreement on shared community obligations to assist those who could no longer help themselves. Over time, differences of opinion would emerge. Debates about law, politics and morality would occur. Eventually there would be passionate arguments and a need for compromise.

The scenario becomes more complex when you move from the fairytale island to the reality of a nation state like Australia where there are people of all faiths and none, individual libertarians, communal idealists and strong state interventionists. In the past, we assumed that the Judeo-Christian religious backgrounds and the post-Enlightenment rationalism of most Australians were fairly consonant with the Australian way of doing things. When it came to discussing law or public policy, a person’s religious views were judged to be irrelevant in the public forum unless they could be translated into language comprehensible to the secular humanist. Law, civic discourse, and respect for the other were needed to keep religion and politics in check.

This task became more urgent and more apparent after 11 September 2001. Muslims in Australia, like all other persons on our shores, deserve a fair go. Many of us wonder how we can accommodate Islamic perspectives in our public life. Many of us are awkward in hearing public expression of religious views, no matter what the religion. We often doubt that religious views should have any place at the table of public deliberation. In an age of heightened security, we readily presume that government will act in the public interest without unwarranted interference with civil liberties. But those of us who are not Muslim nor of Middle Eastern appearance probably have little to fear from increasing police powers.

The night the Australian Senate voted to remove Health Minister Tony Abbott’s veto power over the importation of the abortion drug RU486, Abbott said:¹

Many people were saying as a Catholic I couldn’t be trusted with this power. Obviously I do have some views which I have expressed. But my views on abortion are pretty much in sync with the views that have been expressed over the years by such diverse people as the Dalai Lama and Mohandas K. Ghandi. There’s nothing necessarily Catholic about my views on abortion. But in any event as a minister of the Crown, any decision that I make is based on ordinary rational principles of Government.

The parliamentary debate had been complex. Senators with a conscience vote needed to discuss not only the morality of abortion. They also had to consider the appropriate checks and balances in the exercise of state power, resolving whether the decision to approve RU486 should rest with the minister for Health or the Therapeutic Goods Administration. In debates of this sort, there is a need to set down the place and the limits of religion in government decision making. There is also a need to have in place appropriate checks and balances for the responsible exercise of government power. Conscience, civic discourse, the right checks and balances, and community values such as tolerance (which requires respect for minority viewpoints) are needed to keep religion and politics in place. Checks and balances are those constitutional arrangements in a nation state which ensure that the legislature (both houses of Parliament), executive (government ministers and the public service) and judiciary (the courts) have sufficient power to keep one another in check, balancing the will of the majority and the rights and entitlements of the individual and those minority groups who disagree with the majority view.

In the same week that the Senate took a conscience vote on the abortion drug, Danish embassies burned and western media proprietors debated whether to publish cartoons of the prophet Mohammed which had first appeared in the Danish press. The cartoons caused grave offence to many Muslims. Conceding the right to freedom of speech, many community leaders urged that the right not be exercised on this occasion out of respect for the religious sensibilities of others, and with a concern for law and order. In these situations, rights are not trumps and neither are religious sensibilities. Though religious views should be respected and given their place in the public forum, there are limits on how far religious views (whether of a minority or majority) can be invoked to restrict the lawful actions of others.

We need appropriate checks and balances on state power and on the rhetoric of our mass media and elected politicians. We need a tradition of civic discourse respectful of the views of all people, including those with passionately held religious views. We need a commitment to mutual tolerance accommodating the utterances and actions of others who think differently from the majority. We need to have a special care for the most vulnerable in our diverse society without unduly curbing the liberty and opportunities for those less vulnerable and those with few or no religious sensibilities. We need to prize the individual conscience. We need to value the dissenter. With appropriate checks and balances, and respect for the argued positions of our fellow citizens (even if those positions are premised on religious or other world views foreign to us), we can work together for laws and policies that provide the social order necessary for all citizens to achieve their human flourishing, despite their contentious and argumentative differences.

Having spent twenty years in the public forum calling attention to what I regard as democratically responsible religious views on vexed moral, political and legal questions, I want to unpack some of the complexities of law, religion and politics in contemporary Australia. I have now returned to Australia after living in the United States for a year, including the latter stages of the 2004 presidential election, and seeing how another, very different, western society deals with the mix of religion and politics. I make no claim that my religious views or public policy preferences on particular controversial issues are more correct or preferable to the views and preferences of any other citizen. I do claim that the appropriate resolution of public conflicts would be more achievable and certain if we accorded greater respect to the conscience of each person. We need to better understand the limits on any individual exercising power in the name of the state, to place better checks and balances on those exercising state power, and to engage in more respectful public dialogue being attentive to religious and other world views. We need to distinguish between the public forum (in which, all citizens are entitled to share) and the various communal spaces in the social life of citizens (in which people voluntarily opt in or out of sharing common interests, including religious beliefs and practice). In the public forum, there is a need to distinguish our personal morality from the social mores and laws that are to be imposed on all.

I was a first-year law and politics student at the University of Queensland in 1971. Joh Bjelke-Petersen declared a state of emergency during the Springbok rugby tour so the government could more ruthlessly repel the protests of those demonstrating against the apartheid regime in South Africa. The university’s vice-chancellor, Sir Zelman Cowen, walked a fine, judicious line questioning the need for government to suspend the rule of law and scrutinising the actions of the Queensland Police as they clashed with the protesters. The protesters called attention to racist laws and policies in Queensland as well as in South Africa. For the first time in Australian history, a court had just ruled – in August 1971 – that Aborigines who had come to court seeking recognition of their traditional rights had no land rights that had survived the assertion of British sovereignty. Young agitators from Aboriginal communities came onto the university campus telling horror stories of human rights violations on the Queensland reserves. Church leaders took a stand, urging a fair consideration of grievances in South Africa and Queensland. Many on the left of the political spectrum, regardless of their own religious background or practice, praised the church leaders. Others, including Sir Joh, wondered aloud why church leaders wanted to consort with communists.

My study of politics and law was complemented by a growing religious sensibility. By 1975, I had completed my initial university studies and entered the Jesuit order of the Catholic Church. Ever since, with a mission from my religious superiors, I have been involved in legal and political issues which have a strong moral edge and which invite attention and comment by citizens with religious convictions, sometimes resulting in formal statements and joint action by church leaders. Over the years, I have wondered whether there are rules, principles or prudential guidelines to offer for those involved in public controversies with religious, legal and political elements. I had cause to wonder aloud whether I had breached any of those rules, principles or guidelines in 1998, when Paul Keating labelled me a meddling priest during the Wik debate which followed the High Court’s decision that Aborigines might still have native title rights on pastoral leases in outback Australia. This was the time when the Howard government needed to pass its legislation restricting Aboriginal rights through the Senate, while the staunchly Catholic Senator Brian Harradine held the balance of power.

Keating wrote in the Sydney Morning Herald, ‘Talk about meddling priests! When Aborigines see Brennan, Harradine and other professional Catholics coming they should tell them to clear out’ He claimed that Harradine and I had ‘saved Howard from paying the price of his folly, and made the Aborigines pay instead’. Keating thought Howard was ‘beatable’ at the polls. He not only thought that Harradine and I had no right to make and act on predictions about the government’s prospects at the polls. He thought Harradine and I were demonstrably wrong in any predictions we might have made. He said:²

Harradine and Brennan have taken the view that Labor, which would take a different approach to Wik, cannot win the election. They have second guessed the electorate. They are like a lot of people in and out of politics: they talk loudly and often about principle, and when the weights are on and permanent interests are at stake they look for a way to slide out.

Unwilling to let the electorate play out the issue – and play out this Government’s role in it – they have done their best to take the pressure off.

If Wik had been left unresolved, Howard would have had no option but to return to the matter after an election in which his proposed legislation would have been an electoral issue, at least in the bush. Howard would have won the election, and Pauline Hanson’s One Nation Party would have obtained a handful of seats in the Senate. One way or another, Howard would have passed his legislation – either with support from One Nation in the Senate, or by a joint sitting of the houses if there were a double dissolution. In hindsight, no-one has seriously suggested that Kim Beazley could have won an election in 1998 with Wik unresolved.

The prudential choice was simple. Aborigines and their supporters had the choice of a bird in the hand and none in the bush. The bird in the hand was Howard’s original legislation, with some added benefits for Aborigines stipulated by Harradine as the precondition for his giving the legislation passage through the Senate. The none in the bush would have been John Howard’s unamended original legislative proposal passed after an election without the Harradine top-up. In theory, this was not a difficult political choice. The hard political choices are when there is a choice of a bird in the hand and two in the bush.

Seven years later, when Harradine was retiring from the Senate, Andrew Bartlett, deputy leader of the Democrats, made this acknowledgment of Harradine’s acumen on Wik:³

The agreement he reached on the Wik legislation was one of the few cases I would point to where John Howard was bested in negotiations.

Whilst the legislative merits of the Wik agreement were less than ideal, the sort of race election, focused on Indigenous people, that our country would have faced in 1998 if that agreement had not been reached would have been far worse even than the one we endured in 2001.

These were complex political issues and I still have a strong self-interest in agitating a particular view of it all. But without resolving all the outstanding questions, we need to ask: Would it have been good enough in 1998 for someone in my position simply to critique the Howard legislation, without working to create the space for Harradine to effect a compromised outcome which was more beneficial to Aborigines – and at the same time avoiding the prospect of a race-based election? Having critiqued the Howard legislation, I could have withdrawn from the political fray arguing that the world of political controversy is no place for a religious person, especially when the controversy is marked by a sharp contest between political parties after all stakeholders have put their case to the public.

Whatever the internal contradictions of the High Court’s Wik decision, I believed that the decision entitled Aborigines to the right to negotiate with mining companies wanting access to traditional lands that were also subject to pastoral leases. The government was wrongly claiming that equal treatment of Aboriginal native title holders and pastoralists required that native title holders have no right to put their case about the effects of mining on their sacred sites and other areas of land used for residence or traditional activities. The Aborigines’ own lawyers had crafted a compromise on the right to negotiate.

Rather than withdrawing completely from the political process, I thought it right to create the space and pressure for government to accept that compromise, thereby avoiding the need for the legislation to be held over until a subsequent election, when a returned Howard government would have been more emboldened to legislate without the compromise crafted by lawyers for the National Indigenous Working Group (NIWG).

It was complex politics. It was complex law. The place of a church person who was not an Aborigine, a miner or a pastoralist was very fraught. I can understand Paul Keating’s annoyance at a cleric’s involvement in the process. Even if I was right in assessing the political outcome of any likely election, was I right to involve myself so intimately in the political process? Mind you, my involvement in the lead-up to the third and critical Senate debate was confined to a series of letters to government which I shared with a senior member of the NIWG. I then absented myself from the country and from the debate for the critical weeks of the final negotiations. That did not deter Paul Keating from telling the Daily Telegraph that the compromise had my ‘fingerprints all over it’.⁴ Ever since, I have had cause to reflect acutely on how to mix law, religion and politics responsibly.

Now, as a professor of Law at the two Australian Catholic universities, I have reason to contemplate the distinctive contribution of religion to Australian law and politics. Since 11 September 2001, these are not idle academic questions, nor are they questions confined to the Christian churches in Australia. We need to understand better the role of meddling priests, meddling imams and other meddling citizens who draw upon religious beliefs in their domestic and international political activity and their commitment to law reform.

Being a Christian, I am a member of the largest religious grouping in Australia. Given that discriminating between religious groups merely on account of their size would be unacceptable, any place we carve out as the appropriate realm for Christians bringing their religious beliefs to bear in the public forum, must also be an appropriate realm for all other religious believers. The same limits should be applied to all religious believers, regardless of their creed, and to those other citizens who hold comprehensive world views not shared by their fellow religious citizens.

Being a Catholic, I am a member of the Christian denomination whose leaders claim the most definitive authority to give answers to moral questions as well as questions about religious faith. If we can get the rules right for Catholics engaging in the public forum, especially setting the appropriate limits on the Catholic Church’s involvement of its leaders in legal and political controversies, we will have gone a long way towards setting down limits appropriate for all religious authorities.

It is non-negotiable in the public forum of the democratic nation state that we accord primacy to the individual conscience of the citizen in the search for truth. In a moral political controversy, our fellow citizens are more likely to respect a position enunciated: ‘In good conscience I believe that X is the situation and we should do Y and avoid Z’. There will always be room in a pluralist democracy for the citizen who says, ‘I believe that we should do Y and avoid Z, not because I in good conscience have decided that this is the case. Rather my religious leaders have told me that we should do Y and avoid Z.’ That may be a good enough reason for a religious believer of that particular group to do Y and avoid Z. It is no reason at all for other citizens who are not members of that religious group. Nor is it a sufficient reason to make a law or policy insisting that all citizens do Y and avoid Z.

In the light of my twenty years’ experience in Australia and my one year’s close observation of the United States during an election year, I argue that religion once again has a place at the table of public discussion on law and policy. All citizens are self-determining individuals who have the capacity and desire to seek the true and the good for themselves and for their fellow citizens in community. For many of these citizens, their religious view of life and the world contributes to their perception, understanding and search for the true and the good. That is why religion deserves a place at the table of public deliberation. However there will always be contested views about the true and the good. In a democracy, there will always be public dispute. That is why religion’s place at the table must be rightly circumscribed.

We establish that place by first according primacy to the conscience of the individual who makes decisions about what is right and wrong. It is right and proper that citizens who unthinkingly repeat the moral claims of their religious leaders about contested legal and political questions will carry little weight in any public resolution of conflict. In raw political terms, they may make up a constituency that has to be accommodated. But where political debate is about contested moral questions, citizens or politicians who accord primacy to their religious leaders’ declaration rather than to their own conscience formed and informed especially by the teaching authority of their own church will not be regarded as self-determining political actors. They will be sidelined as being accountable to external authorities who have no right to dictate the terms of public debate in the nation state.

We then set limits on religion’s place at the table by asking what public trust is exercised by the person either as citizen, legislator, administrator or judge. That place is subject to constitutional constraints. The place of religion is subject to political and social constraints which require religious citizens and religious authorities to exercise caution in distinguishing principle from strategy and tactics. Right judgment, prudence and political savvy all have their place. That place is fraught by the public’s mistrust of church statements that are not matched by church action and institutional arrangements which themselves fall short of the ideal espoused in the statement, whether it be self-determination for Aborigines or equal rights, due respect and dignified recognition of minorities. That place is fraught by the politics of compromise, including the self-interest of stakeholders suspicious of what Paul Keating during the Wik debate called ‘the goody-goody brigade [who] display their Catholicism like a lamp’.

That place is fraught by the lack of expertise, lack of specialist and confidential knowledge, and by the sensitivities of government at times of high security – as with the public controversy over the Iraq war or new anti-terrorism laws. That place is fraught by the morality of politics where a democratically elected government thinks it must do evil to some in order to do good for the majority, and where government is influenced by a utilitarian calculus, often embracing the Caiaphas principle that it is better that one person suffer for the people. In recent times that one person has included the asylum seeking child held in long-term detention so that a message might be sent to others not to breach our ordered migration barriers. That place is fraught by the emotion and rhetoric of politics, especially at election time. That place is fraught by the differing conceptions of morality and the common good. But we are fortunate to live in a society where we can mix law, religion and politics responsibly. We need to keep religion in its proper place in the Australian public forum of law and politics. We also need to ensure an adequate separation of powers, with workable checks and balances so that executive government does not trample the rights of unpopular and powerless minorities.

In 1998, I published Legislating Liberty in which I opposed the creation of a comprehensive constitutional bill of rights for Australia. In the United States, the Supreme Court has become very politicised with its modes of appointment and procedures. This is in part because the court has such political power to strike down laws which offend the very broad due process and equal protection clauses in the US bill of rights. These clauses give the judges the last ‘say’ in many political disputes that are controversial precisely because there is as yet no emerging moral consensus in the community. It is invidious for unelected judges to make such decisions. I did propose a statutory scheme for the recognition of specified rights and entitlements, permitting the Parliament specifically to infringe on a right or entitlement if Parliament adverted to the issue and decided that some greater good needed to be legislated. I thought this modest addition to Australia’s constitutional machinery of rights would be adequate because, at the time, executive government was constrained by a number of factors which are no longer in play.

At that time, the government did not control the Senate. Control of the Senate by the Opposition together with the minor parties resulted in the government of the day having to be accountable to the Senate, providing compelling public rationales for the government’s legislative program. As the Mabo debate in 1993 demonstrated, this fetter on the government could work to the government’s advantage. When crafting the original Native Title Act, Prime Minister Paul Keating had to negotiate with all key stakeholders including Aborigines, mining companies, pastoralists and state governments. These stakeholders had access to the Senate, including the committee processes. They were able to put their case, exert influence and be heard. Early in the negotiations, the Aboriginal leaders rejected Keating’s legislation on the basis that it was too favourable to the other interests. It was only because Keating did not control the Senate that it was possible to craft an outcome which was owned by the Aboriginal leaders, who hailed Keating a hero at the end of the legislative process.

By late 2005, John Howard controlled the Senate. It would have been easier for Howard to convince the broad spectrum of public opinion that he had struck the right balance with industrial relations legislation or anti-terrorism laws if he had run the gauntlet of a hostile Senate, where he would need to give a public account of the necessity for novel measures. Without such transparency in the parliamentary process, the public is left dependent on a handful of rebel backbenchers who have abandoned all hope of preferment in the ministry to call the government to account.

Prior to 1998, the Australian government had shown that it was committed to honouring the decisions of international tribunals that heard complaints from Australian citizens who had exhausted all domestic remedies, claiming an infringement of their rights set down in various international treaties to which Australia was a party. The Howard government reversed this commitment and has made a habit of disregarding the findings of international bodies that comment adversely on Australia’s human rights record.

In those days prior to 1998, the High Court of Australia had also demonstrated a willingness to be guided by international human rights instruments to which Australia was a party, especially when there was an ambiguity in a statute or there was a need to develop the common law. Where there was a choice available to the judges, some of them were willing to exercise the choice consistent with the developing international jurisprudence. Since then, all equivalent countries including the United Kingdom have subscribed to their own bills of rights. The Australian judiciary is left isolated. The High Court is less assisted by other final courts of appeal which resolve difficult political challenges through the interpretation of their own bills of rights. In 2004, the High Court reached the stage of authorising the indefinite detention of a stateless person, without judicial review or supervision. Such detention could possibly be for life. One of the four judges in the majority said the result was tragic, but without a bill of rights he could do no other.

A government which is less constrained by the Senate, the High Court and international tribunals is a government that risks thwarting more readily the rights and entitlements of minorities and those who hold an unpopular view of the true and the good. With party machines that enforce tighter discipline than in other countries, such as the United States and the United Kingdom, we Australians then become more dependent on the magnanimity and vision of the prime minister and his advisers. In the long term, this is dangerous for democracy.

The terrorist threat, combined with the tight discipline of the government parties and the unwillingness of the parliamentary opposition to invest much political capital in protection of minority rights, contributes added potency to the call from the community for a statutory bill of rights. A bill of rights can consolidate the checks and balances needed in a modern democracy regardless of the strength of the government parties and the weakness of the opposition parties.

As we have seen recently in the United Kingdom, a statutory bill of rights provides no automatic right answer in striking the appropriate balance between security and liberty. But it does provide a template for public discussion which must precede any novel legislation interfering with long-cherished rights and freedoms. The ACT has now legislated a statutory bill of rights and the Victorian government has announced its intention to do likewise. There is a national community initiative led by John Menadue and Susan Ryan called New Matilda. They are proposing a national Human Rights Bill that would provide some practical checks and balances on executive power. This initiative ought to have appeal to any political party wanting to ensure that Osama Bin Laden does not make further incremental gains, by default or by proxy, in stripping away the freedoms we cherish. The New Matilda draft contains modest and sensible proposals,

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