Address for the Multi- Faith Opening of the Legal Year 2015
Rufus Black
Master, Ormond College, The University of Melbourne
We are people of many faiths gathering here today. Long before our faiths
arrived on these shores there was law in these lands – deep and ancient. Its
nature was formed by the sacred stories and places of the dreamtime. So in
the beginning I would like to acknowledge traditional custodians of that law
and land, the Wurundjeri people of the Kulin nation.
While the relationship between law and religion is very different today,
ceremonies like the one we are holding are signs that in our public life we
have a sense of the enduring importance of the place of the secular within the
realm of the sacred.
Ours is not a simple separation of state and religion. The founders of the
Constitution crafted something far subtler. They established a finely balanced
legal and social ecology that has served us well.
Not for the first time in our history is that relationship is being tested. At such
a moment we might do well to return to the roots of that relationship and to
make the case afresh for the reciprocal importance of religion to law.
Thanks to a marvellous little book by Richard Ely, Unto God and Caesar and
the records of the Convention debates, we can easily return to those roots.
And when we do we find that there is a decisive moment: a single day – 2nd
March 1898 – where less than a few miles from here, the typography of the
relationship between law and religion in Australia was set. That was the day
that leading lawyers of the nation’s early history brought to a denouement a
conflict that had raged in the colonies over the place religion was to have in
the Constitution that would create the nation.
The notion that ours would be a nation with religious freedom and without
an established religion was present from the earliest discussions. Tasmanian
lawyer and Unitarian Andrew Inglis Clark proposed back at the 1891
Constitutional Convention a clause modelled on the first amendment to the
U.S. Constitution.
By the time of the Adelaide Convention in 1897 a move was afoot to include a
feature not present in the U.S. model: the recognition of deity in the Preamble.
It was an idea that would set a different frame for the relationship between
law and religion in Australia. There would be freedom but religion could be a
point of reference in our public and legal life. But this idea, potent with
potential, was defeated 17 votes to 11.
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Defeat, however, sparked a public debate of considerable intensity. Petitions
in the tens of thousands were gathered in support the recognition of Deity.
While they created momentum for recognition, the strength of opposition,
which came as much from within parts of the religious world as from the
secular, also made it clear that no consensus would be found for any clause
that sought to over-claim.
Importantly, the movement also became a more clearly multi-faith project.
Rabbi Davis in Sydney notably spoke at public meetings and it was Isaac
Isaacs who introduced an amendment into the Victorian Legislative Assembly
seeking the recognition of Deity in the next draft of the Commonwealth
Constitution.
Indeed, it was here in Victoria that the debate was most intense. Professor
Lawrence Rentoul of the Theological Hall at Ormond College had led the
efforts to revive the cause of recognition after Adelaide and Henry Bournes
Higgins championed the secular cause. It is a reminder of the manner in
which public life is best conducted that Higgins and Rentoul were in fact
close compatriots and would spend the summers fly-fishing together with
their great friend John Henry McFarland.
When the day finally came for this debate to be settled it was decided in an
important symbol of ecumenism that, given the role Protestants had played in
the public debate, it would be the Catholic barrister Patrick Glynn of South
Australia who had moved the Adelaide amendment who would again move
for recognition of Deity in our Constitution.
His words and those that followed in the convention debate are worth
recalling. They speak of ideals and understandings that it is valuable to
remind ourselves were present in the founding of the nation.
Glynn moved, as the records of that day note, that ‘the following words be
inserted after the word “Constitution” – “humbly relying upon the blessings
of Almighty God”’ and he then explained, and these again are his words,
The words I wish to insert are simple and unsectarian. They are expressive of
our ultimate hope of the final end of all our aspirations, of the great elemental
truth upon which all our creeds are based, and towards which the lines of our
faiths converge.
He then went on to say
In an affirmation of pure reverence . . . adherents of all creeds, sinking their
differences of form and method, can join, and will find the spirit of toleration
in them growing strong under a sense of their common aim. It will thus
become the pledge of religious toleration.
Then came an exchange that is defining of the place of religion in Australia.
Henry Bournes Higgins rose in opposition to recognition of Deity in the
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Constitution saying that the United States Supreme Court, even without such
a statement in their preamble, had declared America a Christian Country so
how much greater was the danger the same could occur here.
Then in reply John Quick, one of the great shapers of the Constitution, took to
his feet. He argued that the very generality of the clause made it clear our
Constitution did not establish Australia as a Christian nation but as one
where people of all faiths could feel truly secure because faith itself was
respected here.
As he made this argument Quick listed some of the religions whose place in
Australia was secured by this clause. He was at pains to emphasize it was not
just Christians but Jews and Muslims as well. And elsewhere in the debates it
is clear that he also had Hindus in mind and no doubt with time he would
have added others.
So when dark forces suggest any particular religion is un-Australian or not
compatible with who we are, we need to remind them that the founders of
our Constitution were clear that we were a nation for all religions and they
put that beyond doubt by naming them explicitly.
In an act of skilful consensus creating chairing, which is appropriate to such a
clause, Glynn’s amendment was agreed to without a vote.
Later that day Higgins would move for the inclusion of a clause very similar
to one Inglis Clark had long ago proposed. It passed easily 25 votes to 16.
Patrick Glyn would write in his diary, ‘To prevent any doubt as to whether
[the words of recognition] authorised the imputation of Christianity as the
law of land, or religious intolerance in legislation, Higgins succeeded in
getting a Provision against any legislation either establishing or suppressing a
Religion, or imposing a religious test.’(Ely, p.86)
At the end of that day a balanced place for religion in relationship to law in
Australia had been established – a balance that a series of High Court cases
interpreting s.116 has done much to cement. It is a balance that has served us
well.
But understandings of law shift as the continents of ideas upon which they
rest move. So it is important, if we are to preserve that balance, to continue
the public conversation, which was so vigorous when our Constitution was
formed, about why religion remains important to law. Today, I want to touch
very briefly on just two notions.
The first is that systems of religious belief are important to sustaining
substantive understandings of justice. In philosophy one of the conditions for
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establishing something as true is how well it coheres with the relevant
background knowledge.
When it comes to notion of right and wrong, justice and injustice, that
background knowledge is the understanding of the nature and purposes of
human life and society and even of existence itself. The broader, deeper and
richer those understandings are the easier it will be to secure more
substantive understandings of what the good is.
The roots of the common law are deep in the soil of religious belief systems. It
grew out of natural law theory, which itself has roots in Jewish
understandings of law and the extraordinary late Medieval conversation
between the Aristotelian texts that returned to the West via Islamic
scholarship and pre-reformation Catholic theology.
By contrast there is always a danger in a reductive secular scientific account
of the human person. If, for example, we reduce the human person to notions
like the selfish gene or we become mere products of our social environment,
we risk rolling back the obligations born of neighbourliness and the dignity of
human choice.
Second, whether or not you even believe in the divine, a notion of deity
reminds us that there are proper boundaries to what it is human to do and to
be.
A prayer in public life is a reminder not only of the worthy and higher
purposes of our institutions of government but also of its limits. There are
matters that humans should never make laws about; freedoms that when we
seek to curtail them we are overreaching what human should ever do.
With no bill of rights to protect our freedoms and few constraints like s.116 in
our Constitution it is especially important that we maintain our traditions that
create a culture of constraint on any inhuman aspirations of our legislators.
Perhaps too the recognition that our laws find their place in greater scheme
meaning might embolden judges in a time to need to conclude as Justice, later
Lord, Cooke’s did in Taylor v New Zealand Poultry Board that, ‘I do not think
that literal compulsion, by torture for instance, would be within the lawful
powers of Parliament. Some common law rights presumably lie so deep that
even Parliament could not over-ride them’.
Cook’s thought has deep roots in the common law notions, finding its echo in
Sir William Blackstone’s great 18th Century commentary and ultimately in
Thomas Aquinas’ subtle argument that an unjust law is not a law simpliciter.
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At the very least such notions support judges to read laws down so that they
are within the bounds of the deeply grounded notion of what is human and
what is just.
No doubt in these two sketches alone of why religion is important to law
there is much to debate. If our history is any guide then the very thing that
the maintenance of the healthy relation between law and religion requires is
discussion. But as we conduct that debate let the tolerant ideas of our nation’s
founders ring loud in our ears.
Key References
Richard Ely, Unto God and Caesar: Religious Issues in the Emerging
Commonwealth 1891-1906 (Melbourne University Press: 1976)
Melbourne Constitutional Convention Debates Transcript
(http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;
orderBy=customrank;page=0;query=third%20session%20Dataset%3Aconvent
ions;rec=10;resCount=Default)
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