Culture Clash: The rule of law is essential, even when it’s not popular Adjournment

I wish also to cover quickly some areas here in Australia where abandoning the rule of law and crushing dissent also occur. People would have seen in the media recently the saga of Andrew Thorburn and Essendon, and I want to quickly cover the legality and principle issues of this. Most people will know the story. Thorburn was forced to resign very quickly, within two days, and, in his own words, it became clear to him that his personal Christian faith was ‘not tolerated or permitted in the public square, at least by some and perhaps by many’. This wasn’t on the basis of his personal words or actions; it was because of an association with an Anglican church. Some media reports are saying that the church had controversial views.

The majority of mainstream churches and, I would argue, many mosques and temples are pro life. They believe we should protect the unborn and they believe in the traditional view of marriage and concepts of gender. That is actually quite mainstream around the world, and here in Australia it was perfectly legal to hold those views—in fact, under law, it’s still legal to hold those views—yet the Premier of Victoria said:

Those views are absolutely appalling, I don’t support those views, that kind of intolerance, that kind of hatred, bigotry. It’s just wrong.

Were Essendon’s actions legal? Australia is a signatory to the International Covenant on Civil and Political Rights, which comes from the Universal Declaration of Human Rights, and it makes it unlawful to discriminate against people in a range of clauses.

Legal experts have highlighted that it’s unlawful to discriminate against a person not only because of their religious belief under the Victorian Equal Opportunity Act 2010 but also because of their personal association with, for example, a church under section 6 of the act. It’s not a defence to say that Mr Thorburn agreed to step down. An ultimatum from the club to do so would amount to a constructive dismissal, and a person cannot consent to discrimination against them. So there are, even in our law, legal barriers to what actions Essendon and other groups who have a similar view take. That’s because Australia has signed up to international obligations, such as the ICCPR.

Under article 2 we undertake to respect and to ensure to all individuals the rights of the country without distinction, such as race, colour et cetera, including religion. Article 18 says: ‘Everyone shall have the freedom of thought, conscience and religion.’ This includes the ‘freedom to have or adopt the religion or belief of their choice individually or in community’. Article 19 says: ‘Everyone shall have the right to hold opinions without interference.’ Article 22 says everyone shall have the right to the freedom of association with others. Article 27, which perhaps is relevant after the last census, says, ‘In those States in which ethnic, religious or linguistic minorities exist,’ which you could now classify the Christian church as, members of such minorities shall not be denied the right, in community with other members, to enjoy their own culture, to profess and practise their own religion.

So, the principle: why should we care? We should care because it’s the basis of an open, plural society for these freedoms to exist. In fact, Justices Mason and Brennan of the Australian High Court said that religious freedom is actually the paradigm freedom; the essence of a free society. It’s important also to recognise that the things we value in our open and plural society, such as these freedoms, actually have their roots in Christianity, in the church. The American philosopher Larry Siedentop presents very cogent arguments and is one of many who identifies that the roots of liberalism and the belief in individual freedom were actually pioneered by the Christian thinkers of the Middle Ages. It was the philosophers and canon lawyers from the church—not the Renaissance humanists—who laid the foundation for liberal democracy in the West. We should continue to value that if we want an open and free society.