Article 18 – The inconvenient right
Listen to Sen. Fawcett as he addressed the Freedom17 Conference in Canberra on 14 June 2017. Here is a copy of the transcript of the his talk:
Senator David Fawcett’s address to the Freedom17 Conference in Canberra, 14 June 2017.
Thank you very much. Some people do question my judgement having left the career of being a pilot to go into politics. And I do recall seeing a table in the local paper in Adelaide once asking, “Who do you trust?” and at the top of the list, or very close to the top of the list, were the pilots, very close to the bottom of the list were the politicians. I must confess to looking at that and asking the same question myself sometimes, “Why did I make that move?” But I made that move because the flying over many years was a lot of fun but the command aspects of my time in the military were fulfilling because you had the opportunity to shape the environment for people, in that case in the military community, to make sure that the frameworks by which they lived and worked kept them safe and preserved the effectiveness of the organisation.
And I see that the role in parliament is similar to that and issues like this are front and centre of what I think are some of the underpinnings of our society, that we need to be prepared to step up, have a voice in, and make sure that we shape, as our community moves forward. And so what I will be talking about today is, just very briefly, some of the background to my interest, specifically about the Senate Select Committee. Not so much to focus on the issue of same-sex marriage but to use it as a magnifying glass, if you like, a looking glass, into some of the thinking and processes and biases that are in our community around the issue of religion and its role in society. And then finish off by just highlighting some of the challenges that we in the Parliament, we more broadly in the community in Australia, have as we seek to move forward, protecting our liberal, plural, secular democracy, but also, the rights of people and organisations of faith within it.
So you’ve heard briefly my background and interest in freedom of religion. I have been engaged for a number of years with particularly what’s happening to people overseas. You’ve probably all seen the stats about the fact that Christians now are the most persecuted religious group in the world. It may surprise you to know, particularly when we’ve just seen some of the horrific events in northern Iraq where there’s essentially been a genocide of Christians in places like Mosul and the old areas of Nineveh. If you look at pure numbers of people who have been killed for their faith, it actually occurs in Commonwealth or ex-Commonwealth countries. Pakistan and Nigeria collectively have seen more Christians killed in the last few years than ISIS has been responsible for. It is quite disturbing.
It’s one of the reasons that Baroness Berridge in the UK has established the Commonwealth Initiative for Freedom of Religion and Belief (CIFoRB), working with the University of Birmingham to see if we can equip parliamentarians and other civil society leaders in Commonwealth or ex-Commonwealth nations to start the slow journey towards improving freedom of religion for minorities in their countries. It’s an important area that I think Australia has a role to play in.
But interestingly, as I’ve done that work I’ve also started to look increasingly at Australia and see the number of issues here where freedom of religion is starting to be called into question. We tend to look overseas and go, “Wow, that’s dreadful”, but if you have a close look at Australia you also see some disturbing trends. And Mark (Fowler) has identified a few of those, with things like the Charities Commission and just the slow creeping change of societal attitudes, which is becoming less tolerant of people who don’t bear its image and people who dare to be different, and particularly where that difference is based on faith.
So to come to the Select Committee, the context of that, you will remember that the government said that we were going to put a plebiscite out to people, the Australian people could have their say on whether or not the “definition of marriage” has changed. As part of that there was an agreement that there would be a draft piece of legislation to give an indication of what a bill might look like as part of what we call the machinery bill that was going to go before the Parliament, which would actually stand up the whole process of having a plebiscite.
And as you are aware that Machinery Bill was voted down and that piece of draft exposure legislation for discussion hadn’t even been through the party room or the Cabinet. It was just a draft for discussion, was picked up by the crossbench and the Labour Party in the Senate who voted together to create a Senate Select Committee to look at the legislation. And the terms of reference included the fact that the government needed to chair it and needed to look at religious freedom and protections. For my sins the Prime Minister decided that that was how I should spend my Christmas, chairing the Senate Select Committee.
You will have seen some things in the media about a consensus report. One of my objectives in chairing this was to try to move away from the normal debate around this issue of same-sex marriage in a society where you normally have two camps of people who dig their trenches and throw stones at each other, or anything else they can lay their hands on. And often the substantive issues are not even identified, let alone debated in detail. And what I sought to do through this process was to say, “Let’s have a civilised, informed debate where both sides can lay on the table the concerns and interests they have, so we can identify, where possible, those areas where we do agree and those areas where we have substantial disagreements that need to be resolved”.
And so the consensus that was achieved in that report was not—as some people have raced out to the media and claimed—a consensus that we should move towards same-sex marriage, but it was a consensus that there were some important things that we agreed on. And one of those was the requirement for religious freedom. There was a consensus that religious freedom was important and it should be protected. One of the things we didn’t agree on was what does that look like. There was a fundamental disagreement between witnesses and even within the committee as to whether individual religious freedom was as important or as protectable, if that’s a word, as collective, or organizational, religious freedom.
On the issue of belief versus manifestation, there were a range of areas where there are substantive issues still to be discussed. There was some agreement around what we could do with civil celebrants and ways we could shape that to protect their freedoms but also make them an agent of the state as opposed to of the church, even if they have an individual faith or a belief. Probably the most important thing, and this is the one I want to draw on, comes to the issue of how we deal with religious freedom. There was a consensus across-the-board from people on the committee—including those who were same-sex attracted, who had very strong beliefs in this area—there was a consensus on the report that Australia, under international law, was under no obligation either under articles 2 or 26, so either discrimination or equality, we were under no obligation to legislate for same-sex marriage.
Now I think that’s the first time that we’ve had a parliamentary report where people on both sides of the argument actually come to that agreement. Now that’s important because under international law, under the ICCPR and the various guidance notes, the only time you can derogate a human right is if there is an equal, competing right, that you need to find some balance. And there’s various Siracusa Principles and other things that people have put forward as to how you achieve that balance. Professor Parkinson made a very good comment during the inquiry that balancing those rights doesn’t mean that one of them gets completely crushed, it means that you find a way to respect the rights of both groups where possible.
But if Australia is not in breach of articles 2 or 26, because we already have a parallel system of recognising and protecting relationships of people of the same-sex attracted, then there is no competing right that justifies the derogation of article 18. Let that sink in for a minute. There is no competing right that justifies the derogation of article 18. And yet, the discussion in our society is all around, “It’s a human right”, or that you have no right to the manifestation of your belief that might impact on someone else’s sense of equality, etc. And so that’s why I think it’s a useful prism for us to look at this debate in our society around religious freedom, because whilst we have established in this inquiry that Australia is not being discriminatory and there is no lack of equality, people are still happy to see religious freedom either crushed, ignored, or conveniently compartmentalised in a way that doesn’t offend their perception of how things should be in terms of equality.
It probably came home to me most during an interview I did with the ABC after a report, where the reporter having read some of the media releases was saying, “Oh, consensus report, this is fantastic.” She was very enthusiastic. I think she was a bit taken a back when I said, “Well, no, in fact the whole inquiry has strengthened my view that we should support the traditional view of marriage and I don’t actually think we should go down this path. There are untold numbers of issues that need to be resolved.” And when I spoke to her about the fact that under international law there was no discrimination, there was no lack of equality she went, “Oh, sure, but in Australia we feel as though it is and therefore there must be.”
What that says to me is that when our society wants to refer to something like a body of international jurisprudence around other issues, for example refugees – I know I cop a lot of flack from some churches because I’m a member of the coalition government and we have a hard policy on refugees – and many people cite things from the United Nations and European Court of Human Rights and others to justify why we should take action.
But when it’s not convenient, and article 18 is clearly not a convenient right, they’re quite happy just to bat it away and say, “Well, that doesn’t really matter.” Either human rights are universal or they’re disposable. And I think as a society we need to come to a position as to “Do we believe these are universal human rights, and if they are how do they survive in our polity, how do we shape our polity around them and have reasoned and informed discussions as to where the two intersect?” As opposed to just saying, “Well, that one doesn’t apply anymore because some societal views have moved on.” So I think it’s an important discussion we have to have.
I could go into some detail if you like, but I’d encourage you to go and download the report on the internet. You can have a look at the basis for how we came to those conclusions, things like the Joslin case, Joslin vs New Zealand, and the United Nations Human Rights Committee consideration of that. We’ve had a number of decisions now out of the European Court of Human Rights in 2010, 13, 14, 15, and 16, all of which identify that if you have a parallel system to recognise and protect then there is no lack of equality, there is no discrimination, therefore there is nothing to justify the derogation of article 18.
So what are some of the learnings and considerations that come out of that and how people are responding? Well, firstly I was struck by the lack of religious literacy in many of our organisations, our expert bodies, people who came before me in a number of respects. Many of the lobby who are pushing for a change to the definition of marriage were saying, “This is so much a part of who these people are.” And it’s like, “Well, so is somebody’s faith.” The very definition of someone’s identity means if you’re prepared to do something that is perhaps to your financial disadvantage, or perhaps places you in a position where you’re serving others for no great reward, or any tangible reward for yourself then it’s not something that you can just lightly give up. It’s clearly part of who you are.
And yet there is a great, either, lack of understanding or insight in much of our society that this is an aspect of faith for people, or an unwillingness to actually understand that. So I think we have a job to do to help people understand why it is. Mark (Fowler) was just talking about all the PBI’s that are faith-based and working effectively. Why do those people … why right back to Emperor Julian who noted that these “flipping Galileans, they care for their own people and for ours more than we do?” Why is it that right back into antiquity through to today the church is actually out there helping and supporting others? That is the positive aspect of faith, and yet so often we define ourselves and we allow others to define us by what we oppose rather than what we are for. And I think that’s an important lesson because that will then help people understand the heart, that sense of my identity that is tied up with my faith.
Secondly is literacy around structures. Most people came in and assumed that every church was like the Catholic Church and the Anglican Church, that you had a bunch of people here who reported to that level there, who reported to that level, and right at the top was someone like the Pope, and if you spoke to the Pope everyone else would fall in line. And so when we started talking about religious freedom in terms of people conducting marriages the concept of a congregationally governed church was quite foreign to many of the expert witnesses who have dealt in law and governance for many years who came before the committee. And as someone who’s grown up in the church, particularly as a Baptist where we’re fully congregationally governed, we’re used to that. But was a shock to me to find out how little, many informed voices—or influential voices—in our community know about church structure and governance and how it works.
Now, that doesn’t just apply to Christendom. There’s a whole area that we’re discussing at the moment around security and counter-terrorism. People look at the Islamic faith, the fact that they don’t have an overarching structure. They have local people who can essentially hang out their shingle and say, “Well, I’m an Imam and I’m going to do this, teach these things.” And that’s a challenge for people to get their head around that there is not necessarily a structure. So I think along with really highlighting the things that Christians are for, the benefit we have brought to community and to society over many decades and centuries, I think the other important aspect is for people to help the society around us to understand the different forms of governance in the church. It’s probably not going to make headlines for the local paper, but go and engage with the local human rights group or lawyers, the law association in your states, whatever, to help them understand how these things perhaps differ to what they consider it to be.
One of the other things that struck me was we live in a society where when you’re debating legislation or the community’s looking for a reference point we have expert bodies, we have people like the CSIRO or the chief scientists. Alan Finkel has just handed down his review into climate change and energy policy. You might think that those people are going to be facts-based, unbiased, independent, a line in the sand that you can go to. What struck me was how many of these supposed reference groups in our society are no longer authorities, they are advocates. And if they are captured by a particular view they advocate that view unashamedly.
One of the things that really highlighted this for me was not just the number of people, law societies and others, who had subcommittees who are dedicated to seeing the change in the definition of marriage. But even the Australian Human Rights Commission came, and in talking about the United Nations Human Rights Committee’s consideration of article 23 said, “They considered this really narrowly” and undermined the judgement. I’m paraphrasing here, you can go and read the actual words, but essentially they dismissed the UN consideration, whereas it was actually quite a detailed consideration.
And if you look at some of the guidance notes and other things written it was a detailed, explicit, consideration of the difference between male and female and marriage and everything else. And yet the average person in the street would look at the Australian Human Rights Commission, a government-funded body, and assume that they are an impartial, unbiased, authority as opposed to an advocate. And that’s something that we collectively, the broader community, polity, people in Parliament, need to try and make sure that we bring these groups … if the taxpayer’s going to fund them, they should be impartial.
So for example, I’m challenging the Human Rights Commission on why they fund a specific LGBTQI adviser but they don’t fund somebody who does that sort of research on religious freedom issues. One of the reasons that I’ve asked Kevin Andrews, my colleague, who chairs the Human Rights Subcommittee to conduct the inquiry into religious freedom in Australia, is so that we can actually have a look at where is society going, where are our resources going, what is the attitude, what’s the legal basis, what are people’s perceptions, how do we actually try and find a baseline that everyone acknowledges that on the basis of facts this is where we stand? As opposed to allowing lots of perceptions to drive how people interact with this discussion.
The other reason I guess I asked Kevin to run that inquiry is that I’m very concerned about the things that Mark (Fowler) was talking about before and, again, he presented to the subcommittee in Melbourne just last week. Looking at the consequences of this kind of change in our society, in the marriage debate there were lots of witnesses who came forward and said, “Look, we’re concerned that if you make this change, we’re already seeing people in the workplace who are being pilloried or harassed or dismissed because they expressed a view in support of traditional marriage. And it’s the law. Heaven forbid, what will happen if the law changes and says that the definition has changed. Where to religious freedom for that individual in their workplace then?”
So that and the whole concept of PBI’s and interaction with tax deductible status, whether the government will work with a faith-based body to deliver social programmes and receive government funding, all of these kinds of consequences flow from an understanding of a separation of church and state. What does section 116 of the Constitution really mean if a faith-based body doesn’t hold to something, for example adoption by same-sex couples of children. Where is that line? Where is that intersection? How much can we allow a divergence of plurality of opinion within our democracy? So I think it’s an important discussion that we do need to have, because otherwise those who dominate the increasingly advocacy-based groups, those who dominate debate, will reshape our society in their image. As opposed to the plurality that says, “Sure, they have a place, but so do we. So do others”. We need to find those places to work together.
So some of the challenges: How do we protect religious freedom? Internationally, I talked a little bit about CIFoRB. We have advocacy groups, the International Parliamentary Panel, it has a pure advocacy role. When something happens we get notification of somebody who’s been arrested, whether it’s on a blasphemy charge, an apostasy charge or some other charge, we just quietly, below the radar, get on with actually advocating with their representatives in this country, their ambassadors writing directly to their parliaments and their Attorneys-General in other countries to say, “Hey, you know what? The world is watching. You’re a signature to the ICCPR. We are concerned about what’s happening with this individual.” We don’t have 100% success but along with many others, and I’m sure there’s many of you here, who are involved in that kind of advocacy, all our voices count. And there are many people who’ve been going, “You know what? They’ve been through a rough patch but they are at least free again as a result of the advocacy.”
The work of the Commonwealth Initiative to try and look for sustainable change by changing the mindset of their civil society, their judiciary, and their legislature, I think is an approach that is a good long-term approach. We’re at the point now where we’re looking to engage. We appointed a number of commissioners of different faiths, including one just recently out of Malaysia who is a Sunni Muslim but believes in a range of things that probably mirror what President Sisi said a number of years ago where he said, “Guys, we’ve got to change. If we keep this mindset and alienate the rest of the world it’s actually going to bring the Muslim community undone.” So there’s a range of people who are working as commissioners to go into countries and to discuss with their civil society, with their judiciary, with their legislature, what is it you need, how can we help you, what can we do to help resource movements to reform?
Here in Australia one of the things the inquiry highlighted is there’s kind of a spectrum of thinking about how we protect human rights. At the moment for religious freedom it’s basically an exemption. Equality, anti-discrimination, are absolute, and if you’re really lucky you might get an exemption for religious freedom. And that varies state-by-state by jurisdiction. Federally as well, depending on what you’re looking at. Other people go, “Well, no, we actually need to ramp it up a little bit. We need to have a no-detriment law. We need to sort of say, “yes, they’re protected.’ But, sorry, you cannot have suffered detriment because of your religious belief or association or manifestation.” Others say, “No, we should ramp it up even a bit more. It should actually form part of our anti-discrimination law. Your faith should be a protected element within discrimination.” And still others ramp it right up and say, “We need a bill of human rights so these things are protected absolutely.”
I’ll just put on the record right now, I’m not a fan of a bill of human rights. If I had to describe something I’d rather see a bill of responsibilities. I would rather understand my responsibility to Andrew sitting in the front here as opposed to his right for my considerations. I think the rights-based, drives a very litigious world where everyone’s fighting for their rights as opposed to a responsibilities-based, which is “What is my responsibility as his fellow citizen to look out for his interests?” So, big spectrum, the last time anyone seriously looked at addressing that was Nicola Roxon as the Attorney-General under Prime Minister Gillard. She looked at trying to align anti-discrimination law across the nation. Mark Dreyfus, who took over from her as the Attorney-General, basically said, “We’re going to put this on ice for a while because this is really hard and there are lots of areas that will need a lot of discussion to balance the competing views and interests.” And so nothing much has progressed from there.
So this is a very real debate from a Parliamentary perspective as to how do we protect religious freedom, and it’s certainly one of the areas that Kevin Andrews and the subcommittee is looking at to understand how does our Parliament, how does our nation, want to find this balance?
Another challenge I would throw out to those of you here, it comes back to this issue of same-sex marriage. I think it’s good that we have conferences like this. I think it’s great that many of you have come and appeared at Parliamentary inquiries to speak up, to give voice, to protect particularly the individual right of freedom of religion. But my challenge is to you, if we lose that fight, for example on same-sex marriage, how do you respond?
There are some, such as the Catholic Church in England, when the whole thing came up about same-sex couples and adoption, “That’s it, we’re out of the sector, we can’t support it”. Lots of people saying, “I’d have to get out of the florist business”. “I couldn’t be a baker”, or “I couldn’t be a photographer.” Can I put to you, here’s a challenge for you to take home and think about over lunch: In Jesus’ day there was an authority, the Roman Empire, who imposed an obligation of service on people. It wasn’t particularly pleasant. When a soldier came along, said, “Hey, mate, carry my pack for a mile.” And Jesus didn’t say “Well, if you see the Romans, rack off, don’t be on the street.” He said, “Go up to them with a smile and say I’ll carry it for an extra mile. I’ll go above and beyond.”
My challenge for the Christian community of Australia is by all means let’s speak up, let’s fight for this right. I hope we find that balance that appropriately protects the rights of the individual, but if we don’t I actually think the counter-cultural approach would be to say, “You know what? I’m going to make you the best wedding cake ever. Love you as an individual, don’t support the process, the institution of same-sex marriage, but I will serve you well and bless you by making the best cake ever. Or taking the best, most artistic, photos ever.” That’s a challenge for many in our community. But I’d encourage you to think about it because I actually think that again speaks to the community about what we are for, at the heart of God, as opposed to just saying what we’re against. I’ll leave that with you.
Finally, from a national security perspective. As well as the Foreign Affairs, Defence & Trade Committee I chair, I’m also on the Intelligence and Security Committee, so we oversee our agencies. They’re involved in a whole bunch of counter-terrorist work. You undoubtedly heard Prime Minister May last month saying after the attacks in London, “Enough is enough. We need to convince people that the British pluralistic values are better than their intolerant beliefs.” Kind of echoed what Prime Minister Cameron said in 2015 where he said, “You don’t have to support violence to support extreme intolerance, which is what breeds the violence. And that extreme intolerance often comes out of religious teaching, a separation from and no support for democracy or pluralism.” Right through to President Sisi’s New Year’s Day speech in January 2015 where he identified that there are religious teachings that can be the birthplace of those intolerant and extreme ideas.
You’ve probably seen the announcements by the Prime Minister and Minister for Immigration around the citizen test and requiring people to actually say, “We support Australia’s plural, liberal democracy, freedom of association, of speech, of faith.” That is at odds with people like Hizbut Tahrir who say, “Well, no, our teaching shouldn’t have to bend to those things.” So one of the challenges for our society, particularly for the government, section 116 of the Constitution, we will make no religious test, we won’t interfere with the operation of churches. How do we then deal with that?
So Judges Mason and Brennan have given us some guidance in the past, they’ve said, “Look, the general laws for the preservation and protection of society will overcome pleas of religious obligation that would do society harm.” And so people like Augusto Zimmerman from the West have written some very interesting papers around this. But I’d just ask you to reflect on the fact that we’ve just had however many speakers this morning and myself for the last 20 minutes talking about how we should protect the collective and individual rights of people to religion and their beliefs and manifestation, but there are valid times when the state does need to challenge that. Probably some in the sphere of Christian churches and potentially some for other faiths. That’s a challenge we need to work through both as a government and as a community.
So in summary, the Senate Select Committee I think was a landmark development because we have now got a new baseline in the sand in terms of what is or is not legal under international law, which then really shines the spotlight on how is our community thinking about religious freedom. And I think what has come out of it is that there are a lot of advocates for other causes who view article 18 as a very inconvenient right that they can just push aside because it no longer suits their world view. And we have a role to advocate for what is good about faith.
Certainly, speaking as a Christian I think throughout history where the church has become religious and diverted from the fundamental teachings of Christ we have done harm. But where individuals have held closely to the fundamental teachings and the nature of Christ we have done untold good and we have shaped our society in innumerable ways for the better. And I think that’s a story we need to keep telling as we work with our secular, plural democracy to say what is the role, what is the voice of faith in our modern society? Thank you very much.
