Principle and Pragmatism

In these remarks, I will confine myself to observations upon the two chapters in this section of the book.

The first, a collaborative effort by Bruce Baer Arnold, Wendy Bonython and Skye Masters, addresses “Law, Cultural Exceptionalism and the Body”.

So, one might ask, why do the traditional churches still have such a big say in Australian legislation and public life? Why, for example, in a supposedly secular country, have the churches been so successful in securing funding for private and religious schools? A recent report showed that, in terms of government subventions for religious schools, Australia is the third in rank in the OECD, just behind Belgium and Chile. Most Australians would think of their country as secular. In the nineteeth century, Roman Catholics established their own educational system. For a very long time it was entirely self-funded by persons of that religious denomination. However, in the 1950s, the Menzies government made an exception by providing a special grant to Catholic schools for science laboratories. This soon expanded into ever-growing federal grants. In the aftermath of the Great Split in the Australian Labor Party in the 1950s, both sides of Australian politics offered increasing funding for Catholic schools, in order to win the denominational vote.

Then in the 1990s, also in pursuit of political advantage, the Howard Government not only increased the federal grants to private and religious schools. It did so in what was, respectfully, a specially objectionable way. It funded the National Chaplaincy Program. Not only did this help to underwrite religious activities in private schools, but it also introduced school chaplains into public schools. From the 1880s, they had observed a principle of secularism so that all children, religious or non-religious, would feel comfortable in the school space. In pursuit of votes, the Rudd and Gillard governments have continued the chaplaincy scheme. Nearly $500 million has so far been expended on it. This is so, despite the serious neglect of infrastructure and financial support for public schools in Australia. The proposals of the recent Gonski committee enquiry are designed, in part, to redress the disadvantage public schools have suffered in governmental funding.

That is not an end to it, as Bruce Baer Arnold points out. Although repeated opinion polls in Australia have shown that majorities of citizens are comfortable with the idea of marriage equality for gay, lesbian, bisexual, transgender persons in Australia, the Howard government introduced into the Marriage Act 1961 (Cth) a provision limiting marriage in Australia to the union of one man and a woman. Copying the successful strategy of Karl Rove in the United States, this measure was designed to pander to the demands of religious organisations and to ignore the civil rights of sexual minorities and their families and friends.

The role of organised religion to browbeat politicians, to threaten and bully them will one day be told. The story is not a pleasant one. It is the more surprising because of the secular traditions of Australia, and before that the secular bequest of British constitutionalism reflected in the Australian Constitution of 1901, and specifically in section 116.

Although the conference of the Australian Labor Party altered its national platform to include a commitment to marriage equality, a vote on the issue in the Australian Federal Parliament resulted in the overwhelming defeat of a Bill to amend the Marriage Act. This coincided neatly with moves to amend the law on marriage in the United Kingdom, New Zealand and France. Already, many developed countries have embraced marriage equality, including the Netherlands, Belgium, Spain, Portugal, Canada, South Africa, Argentina and more than 10 states of the United States of America.

Once, Australia would have regarded itself as a secular State. Its population may still do so. But religious organisations want to keep their control over the human body and to impose, by law, discriminatory restrictions that forbid sexual minorities to enjoy the legal status of marriage, with its obligations and privileges. To many Australians, gay and straight, this is a shocking state of affairs. Given the powerful evidence of the physical, emotional and spiritual benefits that stable human relations can bring to those who enjoy them and given the now incontestable evidence that people do not choose their sexual orientation and cannot change it, these acts of discrimination are very wrong. But they persist in contemporary Australia. And the prospects of their changing, with a change of government, look bleak. So the democratic course has run its race. Absent a national Bill of Rights or charter, there is nowhere for the citizens most personally affected to go. The law offers them no remedy or redress against the injustice that they feel.

Skye Masters examines another aspect of spirituality in Australia.

An autopsy is a procedure often required by a coroner (the most ancient public officer in the English legal system) where there is some concern about the manner and cause of the death of the deceased. Sometimes the autopsy is ordered where foul play is suspected, so as to enhance the possibility of criminal process. Sometimes the autopsy is ordered for reasons of public health or community safety. Accordingly, a demand that an autopsy should be forgone because of its offence to traditional customs and beliefs runs headlong into the competing demands of society expressed in its criminal, health and other laws. Once the feelings of an Indigenous family would have been waved aside as incapable of overriding community interests. However, by analysis of recent cases in the Northern Territory of Australia, Skye Masters has shown how the Australian judicial system has become more sensitive and more nuanced in its respect for Aboriginal customs.

Wendy Bonython extends this analysis to another attribute relevant to Australia’s multicultural society, namely blood transfusion in the case of an adherent to the Christian denomination of Jehovah’s Witnesses. She does so by reference to Australian experience, specifically by illustration from a case before the Irish High Court relating to an African woman from Congo who was a Jehovah’s Witness and who preferred not to receive a blood transfusion because it was contrary to the religious instructions of her faith.

Cases where transfusion of a child is presented for judicial decision are somewhat easier to resolve. The Crown or the State is regarded in law as the parens patriae of the child, or its ultimate guardian. The child can be made a ward of State for the relevant proceedings. A judge can then, if convinced and paying due respect to the views of parents and the consequences on the child, authorise blood transfusion in the name of the whole community.

But what of the case where the person requiring transfusion is an adult of full capacity? In such a case, what is the duty of medical practitioners? What is the authority of courts of law to force a person, if necessary with restraint, to receive blood against their sincere religious beliefs?

The decisions in the cases of autopsies and blood transfusions are not absolute. They involve pragmatic evaluations by the courts of the multiple considerations that are in play. Those considerations will include the instruction of particular religious beliefs. But they will also include perceptions of the best interests of the patient concerned. The point that each of the chapters in this section of the book demonstrates is that pragmatic examination of problems by an independent decision maker, guided by law and precedent, but weighing the various considerations presented, is the best mechanism that societies have yet devised to reach conclusions in such sensitive cases that are at once principled and pragmatic.

Similarly, in the case of autopsies, the mere fact that a parent (Aboriginal or non-Aboriginal) is upset by the idea of an autopsy on a family member is not enough, of itself, to warrant a court forbidding an autopsy. If a crime is suspected or if interests of public health are raised, a court will give those considerations its attention. Likewise, in instances of blood transfusion for those whose religion regards it as biblically impermissible, the law will give due respect to religious views. Sometimes they will prevail. But not invariably.