The Coalition government of Scott Morrison has tasked the Australian Law Reform Commission to review current legislation around religious freedom. This was in response to the recommendations put to the government by the findings of the Expert Panel into Religious Freedom in 2018. As debate continued over what the legislation might look like, Labor’s Senator Kimberley Kitching, Deputy Manager of Opposition Business in the Senate and Shadow Assistant Minister for Government Accountability and Tim Wilson MP, Liberal Member for Goldstein and a former Human Rights Commissioner, to offer their views on the discussion. Senator Kimberley Kitching and Tim Wilson addressed The Sydney Institute on Wednesday 7 August 2019. 

RELIGIOUS FREEDOM – TWO VIEWS

KIMBERLEY KITCHING

I’d like to acknowledge the Gadigal People of the Eora Nation as the custodians of the land on which we meet and pay my respects to their elders, past, present and emerging. 

Like Tim, I thought about the Welcome to Country, and I thought about the spirituality of indigenous Australians, their connection to the land and the complexity of the Dreamtime. And, of course, they are not alone in having developed an ancient belief system. 

Human kind has had systems of belief from early times; whether they be arctolatry, or bear worship in the northern hemisphere through to the ancient Vedic texts of Hinduism, through to the current day when, as I speak, the Hajj journey to Mecca is being undertaken by pilgrims.

What I would posit is that through the millennia, faith or having a system of belief, is a part of being human. The very part of us today that looks to the welkin as we have done since we could raise our heads and look up, and wonder at the stars, and think of stories of the stars or of a God above, connects us through the ages and to each other.

What I would posit is that through the millennia, faith or having a system of belief, is a part of being human.

So how has this very “human-ness” manifested itself in our society?  By our society, I mean a Western liberal democracy, which is pluralist and which is tolerant, and which is secular. 

So, firstly some threshold definitional context. When I say “secular” I do not mean “secularist”. I mean “not bound to a religion or an ideology”.  When I say I do not mean “secularist”, I take secularism as a belief system that rejects religion. I do not accept that my society should be secularist.

When I say “secular” I do not mean “secularist”. I mean “not bound to a religion or an ideology”.

I also do not mean a secular integralist society – so a society where there is a fully integrated social and political order and sometimes additionally national or ethnic unity.

As an historical example, in the nineteenth century, there was a Catholic integralist movement in Western Europe, which held that there are two powers that rule humanity: a temporal power (represented by the state) and a spiritual power (represented by the Catholic Church). 

Integralists believe that since man’s temporal end is subordinated to his eternal end, the temporal power (the state) must be subordinated to the spiritual power (the Church). The world in all its aspects is to take shape only under the direct or indirect action of the Church. This is obviously an anti-pluralist movement.

Integralists believe that since man’s temporal end is subordinated to his eternal end, the temporal power (the state) must be subordinated to the spiritual power (the Church).

Fortunately, Australia rejected anti-pluralism very early on. At first, the Church of England was the established religion in the colony of New South Wales and, during the early years of transportation, all convicts were required to attend Anglican services on Sundays. This included Irish Catholics as well as Jews. 

Similarly, education in the new settlement was Anglican church-controlled until the 1840s. Although, I note that the first Catholic School was established in Parramatta in 1820. The Church of England lost its legal privileges in the Colony of New South Wales following the Church Act of 1836. Drafted by the Catholic attorney-general John Plunkett, the Act established legal equality for Anglicans, Catholics and Presbyterians and was later extended to Methodists. (This piece of history does remind me of the 1960s comedian Dick Emery’s joke that “there are two things I abhor – religious intolerance and Methodists”.)

The Church of England lost its legal privileges in the Colony of New South Wales following the Church Act of 1836.

Australia, by welcoming people from all around the world is a pluralist society. What we have seen, however, in recent years is a discussion in Western liberal democracies – for the very reason that they are tolerant societies – in which there is a view in some quarters, that an agnostic or atheist belief should be privileged because it is more rational. That is, they desire that our society should be secularist (that is, a society that rejects religion).

What I would say, what I was struck by, particularly during the Religious Freedom inquiry, undertaken by the Legal and Constitutional Committee of the Senate, was the lack of depth of understanding of mainstream religious doctrine and practice.

What I was struck by, particularly during the Religious Freedom inquiry, undertaken by the Legal and Constitutional Committee of the Senate, was the lack of depth of understanding of mainstream religious doctrine and practice.

I sometimes wonder whether this is a lack of intellectual curiosity amongst secularists. Indeed, I have found that some of the most hostile to the protection of religious freedom, are the most lacking in intellectual curiosity.

“When I was a child I spoke as a child, I understood as a child, and I thought like a child; but when I became an adult, I put away childish things”. [1 Corinthians 13:11]

There is another angle of this discussion formed from the suspicion of some (and indeed, I often reflect on this on a Sunday morning when I see Gerard Henderson sharing a couch on television with a fellow commentator) that see the power of the Christian Church, historically, as occupying a position of privilege as an integral part of the State. 

I do not want this either – and I think as politicians we are very aware because of the wide variety of events we attend – whether it be a particular church or a particular belief such as atheism, none should be privileged in our society.

Whether it be a particular church or a particular belief such as atheism, none should be privileged in our society.  

A further reflection on secular integralism is that I am reminded that in the last century and in this one, in authoritarian or autocratic regimes, that political party symbols have been placed behind altars of worship. Indeed, it is happening in some parts of the world today. 

I would also add that it would be nearly impossible to have a totally secularist society or indeed a secular integralist society today. As Felipe Fernandez Armesto writes in his Out of our Minds: What we Think and How we Came to Think it  – “God matters. If you believe in Him, He is the most important thing in or beyond the cosmos. If you don’t, He matters because of the way belief in Him influences those who do”.

As Jonathan Haidt writes in his influential book The Righteous Mind: Why Good People are Divided by Politics and Religion: “Religions are moral exoskeletons… Societies that forgo the exoskeleton of religion should reflect carefully on what will happen to them over several generations.”

So, one might know the commandment “thou shalt not kill” in many forms of words, and in many languages. But the commandment rests because it is a basic rule of living in a society.

One might know the commandment “thou shalt not kill” in many forms of words, and in many languages. But the commandment rests because it is a basic rule of living in a society. 

Parliamentary inquiries

Very briefly, there were two committees of inquiry in the 45th Parliament, namely, the Senate Select Committee into Amendments to the Marriage Act (the Same Sex Marriage inquiry) and the Senate Standing Committee on Legal and Constitutional Affairs inquiry into Religious Freedom. The reason I raise these briefly is that these committees raised matters that are very complex and very difficult to address. 

I was a member of those committees for both of those inquiries. The first committee – the inquiry into Same Sex Marriage – had, I think it’s fair to say, the full spectrum of views as embodied in the Committee members. I would say we were extremely fortunate to have Senator David Fawcett, a Liberal Senator from South Australia, as the Chair of that Committee. He is infinitely patient and even-handed. 

Despite the range of views on that committee, the committee members were incredibly respectful of each other and each other’s views. I’d like you to think about this whenever you see a particularly fractious Question Time, and to know that it isn’t always like that. It was a privilege to be on that committee and to come to learn each other’s views and how my colleagues had arrived at deeply-held convictions.

Despite the range of views on that committee, the committee members were incredibly respectful of each other and each other’s views.

But this committee also exposed the question what are we trying to fix?

But this committee also exposed the question what are we trying to fix? 

Although this committee was looking at amendments to the Marriage Act, it was impossible to undertake that task without also examining philosophical questions, for example, what is a belief system? One committee member has friends who are animists and, as Animism is a belief system, should we be hearing evidence from animists? Senator James Paterson, another committee member and a Liberal Senator for Victoria – and I have his permission to quote him – said at one point, “I’m not particularly religious but I do live my life by a set of principles, and that should be respected as well as religious belief.” So, again, one must ask not only what are we trying to fix, but also what are we trying to protect?

This committee could have met and met and met. But in the end, the government decided to have an expert panel look at religious freedom. This is more colloquially known as the Ruddock Review into Religious Freedom. 

The report of this expert panel was severely delayed in being released by the government and, indeed, all of the recommendations were leaked before being formally released. In the meantime, a reference for an inquiry into Religious Freedom by the Senate Standing Committee for Legal and Constitutional Affairs was accepted as the recommendation from the Ruddock Report around the Sex Discrimination Act exemptions, particularly around students, created a great deal of discussion. 

During the rather febrile Wentworth by-election (how long ago that seems!), Scott Morrison joined with the Labor Party to promise discrimination law amendments to make clear no student at a faith-based school should be expelled by removing the exemption which relates to the ability of faith-based schools to discriminate against students based on their sexual orientation, gender identity, marital or relationship status or pregnancy.

Scott Morrison stated at the time that “our Government does not support expulsion of students from religious non-state schools on the basis of their sexuality”.

Scott Morrison stated at the time that “our Government does not support expulsion of students from religious non-state schools on the basis of their sexuality”. 

Again, there is a balancing of rights in this instance: the rights of the student, the rights of the parents, the rights of the faith-based school. Some parents have argued that where they send their children is an extension of their pedagogical rights to raise their children. There are some in religious communities, for example the Sikh community, who are sending their children to Catholic schools. 

However, members of the government are at an advantage here; certainly the Attorney-General, Christian Porter has been conducting sessions with backbenchers to discuss the Religious Freedom Bill.

Christian Porter has been conducting sessions with backbenchers to discuss the Religious Freedom Bill. 

The Leader of the Opposition, Anthony Albanese, has made it clear that he is “prepared to work co-operatively on issues which should not be the subject of partisan politics and that includes that issue (that is, religious freedom).”

It is unclear, as yet, whether the Bill that the Attorney-General is proposing covers the exemptions in the Sex Discrimination Act or not, or it may be responsive to the Expert “Panel’s central conclusion that there is an opportunity to better protect, promote, and balance the right to freedom of religion”.  We shall have to wait to see what grounds the Bill covers. Of course, what it may not contradict is the protection in sec. 116 of the Constitution.

We shall have to wait to see what grounds the Bill covers. Of course, what it may not contradict is the protection in sec. 116 of the Constitution.

The Labor Party

And for the Labor Party, Chris Bowen has said that the failure to address the concerns of religious Australians is an existential problem for the Labor Party. 

He has said, “I mean, most religions, as you say, preach love and respect and tolerance and understanding, and justice. We might use different words, but it’s what we’re about as well. But we’ve lost the connection with people of faith, and we must get it back. I don’t mean to be melodramatic. I regard it as an existential crisis.”

There will always be a contest of ideas about where we came from and where we are going – this has no end and no laws are able to absolutely define what makes us most human.   

If a statute for religious freedom is able to enhance a pluralist, secular society and optimise opportunity for everybody, then I am all in favour of it. This should not pander to the extremes or the integralists on either end.

If a statute for religious freedom is able to enhance a pluralist, secular society and optimise opportunity for everybody, then I am all in favour of it.

The simple truth is that shared Australian values, including respect for people of faith, should be a unifying shield against those who preach division or hatred within, or threaten hostility and instability from beyond our shores.

In a complex and rapidly changing world, we ought to remain steadfast and strong about what we value and are fighting every day to defend.

Religious freedom – including the right not to believe – is just as important as all our other Australian freedoms and traditions. It is well worth defending. 

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