AUSTRALIAN JURISTS AND CHRISTIANITY

Three years ago, my friend Greg Sheridan invoked the wisdom of Monty Python to prove a point. The third chapter of Sheridan’s first book on Christianity uses a rhetorical device that is a straight out of The Life of Brian: “What did we ever get from Christianity – apart from the idea of the individual, human rights, feminism, liberalism, modernity, social justice and secular politics?”

His point is that it is ludicrous to deny the impact of Christian values on societies like ours. It is just as silly as denying the impact of Shakespeare on the English language. It’s part of who we are.

For those who are unconvinced, take a look around: Australia today is a bigger, richer and more complex society than ever before. We are multi-cultural, multi-racial and multi-religious. Yet we are bound together by an idea – this is the land of the fair go and it is governed by the rule of law.

So how did we get this way?

In the ancient world, inequality was the dominant social structure. Some people were rightly born to be slaves and others were rightly born to be slaveholders. Women, on the whole, were little more than chattels.

Like the Americans, we inherited the rule of law from Britain along with doctrines such as human rights and the innate value of individuals.  But while the key concepts of the rule of law were identified by British thinkers such as A.V. Dicey, they are based on much older values.

In his 2018 book God is Good For You, Sheridan argues that almost all of the assumptions we consider to be good in Western political culture come more or less directly from Christianity. That includes a secular polity in which church and state are separate as well as what he refers to as an individual’s large discretionary realm where government has no business interfering.

His point is that even as we strive for the secular, broad Christian values such as fairness have informed our morality and that, in turn, has shaped our civic culture.  Different people will have different ideas about what fairness might require, but few would reject the concept of fairness itself.

This helps explain why the rule of law is so entrenched in this country. Its key concepts – the presumption of innocence and equality before the law – are all about fairness. So it should come as no surprise that only a handful of countries hold the rule of law in higher regard. The World Justice Project’s 2020 rule of law index shows Australia ranks 11th out of 128 countries covered by the rankings.

This country’s economic success is no accident. For the entire period since federation in 1901, investments have been protected by the same key principles that protect liberty – the presumption of innocence and equal treatment under a system of law that applies to everyone.  And those ideas can be traced back to Christian principles.

Douglas Murray made a similar point in his 2017 book The Strange Death of Europe. He argued that Western liberal societies may in fact owe something to the religion from which they arose.

Which brings me to the collection of essays that has been assembled by Geoff Lindsay and Wayne Hudson. It seeks to open up discussion about the influence of Christian values on Australian law by focusing on 24 lawyers, judges and public figures.

They include Andrew Inglis Clark, who helped draft the Constitution, Gough Whitlam, Roma Mitchell, Robert Menzies and Michael Kirby.  Not all of them were lawyers and some would not describe themselves as Christians.

Gough Whitlam, for example, once said he was no more than a fellow traveller. Eddie Mabo seems to have been alienated from the Christian church for years, blaming it for devaluing the culture and traditions of his people.

That, however, provides a good indication of what this book is about. Mabo is included because of his profound influence on law and society.

The first essay, by former NSW governor Marie Bashir, sets the tone: she argues that when Lachlan Macquarie was appointed governor in 1809, his example of tolerance and humanity marked the beginnings of the Australian tradition of the “fair go”- which she describes as the spirit of egalitarianism and fair play that many regard as the defining characteristic of most Australians.

While this book claims to be merely the opening stage of a discussion, and not the final word, these essays leave the reader with tangible evidence that is consistent with Sheridan’s broad thesis. Christian values, as opposed to overt Christian theology, have been the making of modern Australia.

Patrick Keyzer makes this explicit in his essay on Sir Gerard Brennan, the former Chief Justice of Australia. Keyzer is now dean of the Thomas More Law School and professor of law and public policy at the Australian Catholic University. But he was once Brennan’s executive associate and has an unusually deep understanding of the judge and his judgements.

He argues that when Brennan was on the High Court he did not regard himself as having a commission to make Christian judgements – only legally orthodox ones. Keyzer recognises however that Christian thinking is evident in those judgements – particularly those concerning children, parenting and marriage, bodily integrity and human dignity as well as Aboriginal spirituality and religion.

But there is a difference between a judgement that legitimately reflects Christian principles and one in which a judge allows personal religious belief to influence the outcome. Brennan, according to Keyzer, would regard the latter as unthinkable.

Michael Pelly, who is legal editor at The Australian Financial Review, makes a similar point in his essay on Brennan’s successor, Murray Gleeson, who once noted that effective laws have a moral foundation and religion had helped fill a void.

Gleeson accepted that a judge’s individual view should not be apparent in judgements but he believed judges still have choices to make. How they interpret a statute, assess liability at common law, weigh competing rights or sentence an offender will depend on precedent – but it will also be shaped by the judge’s personal beliefs and experiences.

One of the clearest expressions of this approach is in Arthur Emmet’s powerful essay on Sir William Deane, a former High Court judge and Governor-General. Emmett, who is an acting judge of appeal in NSW, writes that Deane’s Christian beliefs were implicit in his judgements. There were undeniable connections, according to Emmett, between his compassion for the disadvantaged and the vulnerable and the influences that came from his Christianity and commitment to the social justice teachings of the Christian church which emphasises the dignity of individuals, the importance of freedom from tyranny, the notion of the common good and the right to private property.

Emmet’s essay destroys the myth that judges are mere technicians, without agendas – even unconscious agendas – of their own. He writes that judges of the High Court only hear those cases they consider to be fit for their attention. And that inevitably means those decisions will be influenced by their own personal beliefs and ethics.

One of the recurring ideas in this book is the continuing impact of Christian principles, as opposed to theology. In Deane’s case, Emmet says it is clear that principles of Christian charity underlay his thinking. He favoured a rights-sensitive interpretation of the Constitution, including the development of a number of controversial implied constitutional rights that limit the power of governments.

The broader debate about judicial method and the legitimacy of the implied rights jurisprudence is beyond the scope of  the book. But for the sake of completeness it needs to be made clear that judges are not free to make law as they see fit – even when motivated by Christian principles.

Recent history has shown that departures from accepted judicial methods will inevitably incur criticism – even from the Chief Justice, Susan Kiefel. This is what happened last year when a bare majority of the High Court introduced a race-based exception to the Constitution’s “aliens” power. That decision means parliament’s power to make laws with respect to aliens does not extend to those with Aboriginal ancestry – even if they are citizens of other countries, were not born in Australia and have been convicted of crimes that would lead to the deportation of other foreigners.

The discipline of orthodox judicial method means there is little chance that Christian principles will send this country hurtling towards some sort of theocracy. Those principles have actually produced the reverse: a stable, secular state that has found room for other religions.

The editors of this book have also pointed to another factor that needs to be considered when assessing the essays on four of the former High Court judges who appear in this book. The tenure of Brennan, Deane, Gleeson and Kirby coincided with an historically unique period following the commencement of the Australia Acts in 1986. These statutes marked the last step in Australia’s legal independence from Britain and meant the law of this country would be considered afresh.

To sum up, this collection of essays is a natural companion to Sheridan’s earlier book on Christianity. Together they point to a set of principles that have formed the framework for modern Australia. Fairness and equality before the law are fundamental, but so is the autonomy of the individual and the idea that government has a higher purpose than merely controlling the governed.