Andrew is a lecturer at Moore Theological College, Newtown NSW, and chairman of the Social Issues Executive of the Anglican Diocese of Sydney. He is also part of an ‘oversight committee’ that is coordinating some initial responses to the AHRC. ‘At this stage, the opinions expressed in the presentation are mine alone; however I think my views broadly reflect some existing Diocesan policies.’ – Andrew Cameron

Contents of this presentation:

1. AHRC Project overview
   1. What is the AHRC?
   2. What does the project seek to do/achieve?
   3. What is the project’s timeline?
   4. What is the UN backdrop?
2. Seven areas under review in the Project
3. ‘Big Picture’ questions
   1. ‘Rights’ or not
   2. Nature of religion and belief?
   3. Individual versus communal?
   4. Nature and extent of ‘public manifestation’?
   5. Uses of law in society?
4. Areas of concern?
   1. Relationship to a Federal ‘charter of rights’
   2. Anti‐religious vilification law (and evangelism)?
   3. Changes to anti‐discrimination exemptions?
   4. Attack on ‘Christian Heritage’?
5. Recommendations for action
   1. Check out the project at www.humanrights.gov.au and see Briefing #079
   2. Be alert not alarmed
   3. Use the process: make a brief submission by 31/01/09?
   4. Stay tuned & note 2010/11 in your diary!

If you are new to the areas I will cover in this presentation, it will all seem a bit daunting at first. The Australian Human Rights Commission is set to examine a very wide range of issues relating to religion and belief, all of which have been simmering away in our culture for hundreds, even thousands, of years. That does mean it can take some time to digest what is going on, and to find it all a bit hard at first is quite normal! If you feel that way, you are not stupid; that is just a normal part of finding our way into something complex. The good news is that we all have a few years ahead during which we can learn about the issues and start to form an opinion. This presentation is intended as a start to that journey.

I won’t go through the biblical basis for freedom, or the theological reasons for freedom of religion. Of course I think those discussions are hugely important; indeed, freedom in the modern West has been forged through a history of Christendom, about which there is now a high degree of cultural amnesia! But for the moment I just want to fill you in on what is happening as I understand it.

1. Project overview

a) What is the AHRC?

The Australian Human Rights Commission (AHRC, formerly HREOC) is a body formed by Commonwealth statute. It describes itself as ‘Australia’s national, independent statutory authority which administers Commonwealth human rights laws’ (discussion paper p. 5). Its task is to examine international human rights agreements, and to make recommendations to Federal Government accordingly.

The organisation has always taken time to use a focus‐group style of listening to community concerns. In its various reports, it will often quote stories, opinions and experiences of ordinary Australian at length. In this way it gives a ‘sounding’ of the thoughts and opinions of everyday people who are vocal enough to articulate their views. This is an important role, and should be valued.

However AHRC admits that these stories are often unverified, and it acknowledges that it is often in the business of communicating some community perceptions to government. AHRC recommendations would therefore always need to be weighed against other evidence, and against other legal and social input. That is often what Government and members of parliament often find themselves doing after the AHRC has spoken.

b) What does the project seek to do/achieve?

The AHRC has begun what it calls the ‘Freedom of Religion and Belief in the 21st Century Project’. In September it launched a discussion paper outlining this Project. It can be found via a link toward the middle of the web page overviewing the Project:

http://www.humanrights.gov.au/partnerships/projects/freedom_religion.html

As the AHRC tells it, this project comes out of a ‘National Action Plan to Build on Social Cohesion, Harmony and Security’. It has commissioned three researchers from the Australian Multicultural Foundation to conduct the project and prepare its report. It will build on earlier reports:

• Article 18: Freedom of Religion and Belief (HREOC 1998)
• Religion, Cultural Diversity and Safeguarding Australia (DIMEA 2004)
• Two other reports (2003, 2007) studying the experience of Muslim people will also be relevant.

But why bother with this Project?

Because ‘freedom of religion’ is a U.N.‐recognised human right. The project seeks to map the state-of-play for freedom of religion and belief in Australia. It seeks to find out about the experiences and place in civil society of every religious belief (including ‘secular belief’), and especially that of Muslim communities. It will seek to remedy what it takes to be any infringements of the right to freedom of belief, or any instances where some religious belief and practice is infringing some other ‘fundamental human right’. The Project is an example of the AHRC doing its human‐rights related job, this time in reference to ‘religious rights’.

c) What is the project’s timeline?

• The researchers are taking written submissions from the community until 31 Jan 2009 (and I encourage you to send them something if you have something to say).
• They will consult around the nation with citizens, including religious leaders, during 2008‐2010.
• A final report will be presented to Government during 2010.
• The report and any recommendations would probably coincide with a second‐term Labor government, or a new conservative government.

d) What is the UN backdrop?

Australia is a signatory to the International Covenant on Civil and Political Rights 1966 (ICCPR) Article 18: (based on UN Declaration of Human Rights 1948, also Article 18):

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

There are a few points to note from this U.N. backdrop:

• ‘Religion or belief’: the reference to ‘or belief’ is a deliberate expansion of the concept of ‘freedom of religion, to allow for the rights of those who do not profess to religious belief and/or who profess to non‐religious beliefs.
• ‘Either individually or in community’: There is a clear provision for assembly with like‐ minded others (including intra‐family, point 4). (This community provision is amplified in a later 'Declaration on Elimination of All Forms of Discrimination Based on Religion or Belief', UN Resolution 36/55, Art. 6. However U.N. Declarations are not binding in the same way that Covenants bind signatories.)
• ‘In public or private, to manifest’ religion: There is ongoing controversy over extent of ‘manifest’: see point 3, where religion made ‘manifest’ may not infringe others’ ‘fundamental rights and freedoms’.

Also in the ICCPR, Art. 2.3a states that ‘Each State Party to the present Covenant undertake to ensure that any person whose rights or freedoms ... violated shall have an effective remedy...’

From where the UN sits, that usually means that laws should be enacted to protect people’s rights. Since Australia is a ‘states party’, and since the AHRC is set up to tell Government when it thinks Australia is falling foul of this Covenant, it follows that the AHRC often recommends new legislation to cover what it thinks are gaps in the protection of our rights. As we will see, it has consistently proposed new laws in relation to religion and belief.

Seven areas under review in the Project

I will now go through the Project in a bit more detail to outline what the researchers want to look at.

1) Evaluation of the relevance and impact of the 1998 HREOC report, Article 18: Freedom of Religion and Belief (the recommendations of which are reproduced on pp. 11‐13 of the discussion paper, including the recommendation for a federal ‘Religious Freedom Act’).

This report and its recommendations did not make much headway under the Howard government; but if I were on the AHRC, I wouldn’t want it to go to waste either! There is some acknowledgement that things have changed since it was drafted, and the AHRC wants to hear opinions about whether it still remains relevant. There is also a degree of complexity here, since the terrain covered in Article 18 overlaps with the six areas following ...

2) Assessment of the adequacy of the Australian Constitution’s Section 116 to protect freedom of religion, especially in the absence of a Charter of Rights.

This is the part of our Constitution which prevents our Government from showing favouritism to any one religion, while apparently allowing Government to work with all religions to an extent. Some think there are inadequacies with the protections given by this section of the Constitution. Some think that a new Charter of Rights would be a good way to remediate these inadequacies.

3) Investigation of interactions between religion and the delivery of services (e.g. in education and human services [i.e. welfare]).

There are a number of partnerships in place between government and faith‐based schools, hospitals and care organisations. Of course these are a perennial source of debate for many reasons, often surrounding privileges for and restrictions upon these organisations when taxpayer money is involved. Suffice to say that this section of the Project will set a number of hares running.

4) Consideration of the impacts upon religious freedom of September 11 2001.

This is the point where the AHRC is quite overt about their special intention to examine how Islamic communities are travelling. A previous report in relation to Islam highlighted many stories after 9/11 where Muslim people felt marginalised, vilified and misunderstood. The ARHC is looking for ways to help these communities without necessarily encouraging any sort of extremism.

5) Examination of how religious belief affects political and cultural aspirations (e.g. for gender equality, or in relation to civic responsibility).

7) Scrutiny of instances where religious freedom seems directly to contradict ‘fundamental human rights’ (e.g. for disabled people, or in relation to sexuality).

I find it easiest to take these sections together. This is where the project seeks to examine whether someone’s human rights are being infringed by someone else’s claim to religious freedom. There are several ways in which this might occur. For example, one question in the discussion paper very helpfully highlights the way disabled people simply might not have access to religious meetings or worship, which should obviously be quickly addressed.

But a more controversial reason for this discussion has to do with exemptions to anti‐discrimination law. That is, religious organisations have wide‐ranging freedoms in relation to their employment and other practices, which in other circumstances would be regarded as prohibited forms of discrimination. Some think that these exemptions are necessary for true religious freedom. Others think they are an inappropriate infringement of fundamental human rights. The AHRC’s project seeks to reopen this matter for debate (and in other contexts, influential officers of AHRC/HREOC have advocated against exemptions as they now stand).

6) Consideration of whether media practices and emerging technologies affect religious freedom.

This interesting section is mainly concerned to discover if media organisations are doing any religious groups a disservice.

3. ‘Big Picture’ questions

The Project and its UN backdrop raises some ‘big picture’ questions for me, which I will now pause to note.

a) Rights or not?

A most basic ‘big picture’ question is whether or not ‘rights’ are a fruitful category in which to frame public and social policy.

Now from the perspective of the AHRC and of people who work in human rights law, my comment seems bizarre. After all, the protection of rights seems to be such a helpful way into protecting the little people from the State, and for arbitrating between people’s claims.

At the launch of this project Tom Calma, the AHRC’s Race Discrimination Commissioner, described human rights as ‘both a system of laws and a body of ethics’. But I am not so sure: I think rights are used to list some goods that are worth defending, but I’m not sure they have what it takes to be a whole ‘system’ or ‘body’ of thought.

But the AHRC is tasked to think in terms of rights, so there is not much point questioning their whole reason for being. The matter will however come up in the context of a different discussion, which the Federal Government intends to pursue with the community, about whether or not Australia should enact a Federal Charter of Rights.

b) Nature of religion and belief?

The terms ‘religion’ and ‘belief’ are so broad that the Project has to cover enormous breadth. Because ‘freedom of religion’ also has to encompass ‘freedom of non‐religion’, it then has to take into consideration all sorts of beliefs and opinions in the culture. In various documents the AHRC has had a go at defining ‘religion and belief’ and I am not saying that the attempt shouldn’t be made. I am simply noting that it is very ambitious to conduct a study of so many kinds of thought that have been embedded in human history for so long. It is hard to see how even an army of researchers could do the matter justice!

c) Individual versus communal?

That previous point may seem a bit harsh. After all, there is no harm in trying to talk about the place of complex ideas in a society. But in the discussion paper, religion is spoken of in a way that is contestable in one particular area. I’ll just make a general claim here without giving examples; you’ll have a look at the discussion paper and see if you agree.

It seems that religion is considered primarily to be a matter for individual choice, rather than a communal affair. Religious people often meet together in organised groups, and traditionally the ‘freedom of religion’ has also been a defence of the life and identity of these groups. This concern is reflected in the UN Convention when it mentions the place of religious communities, and when it allows the religious education of children. But I could argue that some questions for discussion are prejudiced in favour or individual rights at the expense of the life of religious communities.

d) The nature and extent of ‘public manifestation’?

We saw that the UN covenant affirms that it is proper to ‘to manifest’ religion ‘in public’. But there are limits: the State also has to protect ‘public safety’, ‘order’, and ‘health’. We might be able to imagine some conflicts between religious freedom and those other areas, but to date, those limitations generally seem workable.

But it begins to get endlessly murky at the other two limits: the limitation upon freedom of religion in order to protect ‘morals’ or ‘the fundamental rights and freedoms of others’.

Now I am not exactly sure what is meant by ‘morals’, but I can see plenty of room for endless disagreement over the State’s estimate of a ‘moral’ over a religion’s estimate of a ‘moral’.

I can also imagine plenty of instances when a religious community is in conflict with the wider community over what constitutes a ‘fundamental human right’.

The upshot of all this is that the nature and extent of acceptable ‘public manifestations’ of religion is far from clear. I am told by one legal expert that on the whole, international jurisprudence invariably tends to judge the right to ‘public manifestation’ as the lesser right.

This problem area is much bigger than the AHRC of course. From where I sit, I cannot help wondering if they too have been saddled with some unclear thinking at the UN level.

e) Uses of law in society?

I noted that in accordance with the UN, the AHRC tends to recommend new law as a solution of choice. Don’t get me wrong; they often have much longer lists of very sensible solutions for how a diverse society can learn to live well with each other. But to show you what I mean, here is the main reason for their proposal to introduce religious anti‐vilification law (from the 1998 report):

‘[L]aws are expressions of the values which the community considers important. Australian society abhors violence or intolerance for any reason. Equally as abhorrent is the incitement to violence on the basis of race, religion or belief. The implementation of legislation proscribing such behaviour would be a positive expression of community distaste for and disapproval of this type of behaviour. It is also required by international law.’ (Article 18, p137)

There is a specific question, which I am still learning the answer to, of whether existing laws against violence obviates the need for specific laws against religious vilification. But that’s not the point here. I simply want you to notice two things.

Firstly, law is needed to articulate a community’s ethics. (A former president of HREOC once said that she thinks laws should lead the community rather than merely follow the community.)

Secondly, we are told that we need a new law because international law tells us so. But I’m not convinced that this is a good reason for a new law. As one legal thinker puts it,

‘Where ... governments impose standards of behaviour through law on a reluctant population, they risk more than they gain. ... [T]he legislation undermines belief in a shared community of interest between governors and governed. ... Legislation defines legality and illegality, but legitimacy is something different. ...It is the legitimacy of law, and not its constitutional legality, which matters most for stable and harmonious societies.’ (Patrick Parkinson)

To my mind the AHRC has not always adequately demonstrated the need for new laws. Yet new law can be a tempting shortcut for the legislation‐factories that our parliaments have become. They can be a cheap, easy policy fix. They can make it seem that something is getting done; they look good on the world stage; but they may or may not have anything to do with actual conditions in society.

4. Areas of concern that Christians have already signalled

The Project touches on some areas that conservative Christians are usually edgy about. Here are that mains ones:

a) Relationship to ‘rights’ and a Federal ‘charter of rights’?

It is hard to know exactly what the interaction will be between this Project, and the discussion of a Federal Charter of Rights (in which the AHRC will also play a part). Those who have doubts about the value or ‘rights’ in law, will also have some doubts about this project.

b) Anti‐religious vilification law and evangelism?

The AHRC has repeatedly recommended Federal laws to prohibit religious vilification. Christians are quick to worry that this will put the brakes on criticising other religions as false. To be fair, those who propose these laws want to make it possible to discuss the truth of falsehood of religion and religions. However in practice, I don’t know if that will prove as easy as they hope. The law may distinguish between inciting hatred of persons and criticising their beliefs. In practise though, strong condemnation of a belief system can end up feeling and looking like an attack upon the believer.

This is a complex area that I find myself thinking about a lot lately, so I won’t say too much more. I am not a fan of this kind of law, and I can think of many strong arguments against it. At the same time, it may be helpful to have a law to state the ‘outer limits’ of free of expression. But I find this hard to think about and am currently trying to understand lawyer‐thinking about this area.

c) Changes to anti‐discrimination exemptions?

I’ve already mentioned those above.

d) An attack on ‘Christian heritage’?

Some Christians argue that Australia is a ‘Christian country’ since it was founded on Christian principles and grew from British Christian stock. As a result, any attempt to shift the national status‐ quo away from Christianity and toward some other religion or belief, is wrong. For these Christians, the AHRC’s project is likely to be considered an attack on our ‘Christian heritage’.

Yet many Australians deny the Lordship of Jesus Christ, do not profess to follow him, and know nothing of repentance and forgiveness before God. Hence evangelicals tend not to call Australia ‘a Christian country’, because that would mask the way this generation of Christians needs to show other Australians how Christ is good news for them.

For the purposes of the AHRC project, then, I think it is best to say that Australia ‘is not a Christian country, but is not a blank slate either’. Australia needs to find a way to share cultural space between people of different beliefs, while never pretending away the depth of its Christian roots. It follows that any attempt to banish public manifestations of Christianity is a silly denial of our past. (Of course neither should we attempt to banish public manifestations of other beliefs.)

5. Recommendations for action

a) Check out the project:

• See further http://www.humanrights.gov.au/partnerships/projects/freedom_religion.html (alternative address http://www.hreoc.gov.au/frb).
• At the bottom of this main page, see also the related set of enquiries with discussion papers and calls for submissions: e.g. http://www.hreoc.gov.au/frb/hw/index.html.
• See also Social Issues Briefing #079

b) Be alert, not alarmed.

There is enough time for us to make our voices heard, and to develop wide, considered responses to this Project and its outcomes.

c) Use the process!

Why not make a brief submission by 31/01/09. (See the AHRC discussion paper for details on how to submit.) We are being ask for an option now! It will not do to say nothing at this stage, and then get upset when the process is nearly complete.

d) Stay tuned

Note 2010/11 in your diary! That will when the final AHRC report comes in, and when any recommendations to Government are considered by Government. The Social Issues Executive will be keeping track of the matter as it unfolds.

1. Introduction. The 2020 Summit has raised the profile of a human rights framework for the Federal legislature. The new government may introduce plans to develop such a framework. This possibility has triggered what will become sprawling and complex community debate.

If Christians can discern the main issues, we will have much to contribute to the debate. This paper is offered as a first step in that process. The SIE is thankful to the Archbishop and Standing Committee for the opportunity to participate.

2. Cautionary notes. We understand that due to time constraints, some members of the Committee may be unable to read the entire paper. However we urge that at least the following cautionary points be noted:

1. Complex issues that deserve close study are at stake.
2. A church’s task is primarily to speak theologically (see para. 38)
3. More will need to be said than simply that ‘rights talk is unhelpful’ (see para. 43).
4. ‘Rights talk’ is a ‘lingua franca’ for ethics, and must be challenged with care (para. 7).
5. ‘Rights talk’ does not always involve an evasion of ‘responsibilities’ (see para. 8).
6. Rejection of human rights law carries some risks (see paras 7, 44, 46).
7. Familiarity with competing legal models is essential to an informed response (see para. 45).
8. Ongoing monitoring and reflection will be required (para. 49).

3. The contents of this paper are as follows (paragraphs):

I. The difficulties of rights language (4‐8)
Some semantic complexities surrounding the discussion of human rights.

II. Overlap of Bible, ‘rights’ and ‘human rights’ (10‐17)
Texts and themes in the Bible that conceptually resemble modern discourse.

III. A short history of rights-discourse (18‐28)
A sketch of the evolution of ‘rights’ and two significant ‘atheological moments’.

IV. Common objections to a human rights framework (29‐38)
Standard non‐theological objections to an Australian human rights framework.

V. Towards a Christian response (39‐49)
Provisional suggestions for a considered Christian response.

Appendix: UN instruments (50‐55)
A glimpse of some important UN documents.

I. The difficulties of rights-language.

4. Context. We offer some provisional definitions (para. 4), but discourse about ‘rights’ and ‘human rights’ contains complexities that need to be noted. This section also observes some of these complexities.

5. Definitions. For purposes of this paper, we offer the following working definitions (acknowledging that disagreements can be found in each case):

‘Right’: a ‘moral claim’; a form of entitlement asserted by or for someone.

‘Differential right’: a right applicable to a particular person (but not necessarily to all people).

‘Universal right’: a right applicable to all people everywhere.

‘Human rights’: a legal and moral specification of, and a discourse about, universal rights.

‘Bill of rights’, ‘charter of rights’ (often used synonymously): legal instruments that list and protect human rights.

‘Human rights framework’: a general term to describe the application of human rights as a controlling element in a legal system, but without specifying the actual legal model used (e.g. via either a ‘constitutional’ or ‘statutory’ arrangement).

6. General ‘rights’ and ‘human rights’. Modern ‘rights’ discourse encompasses a huge semantic range and the term is used in a variety of senses.

‘Human rights’ discourse is a subset of rights discourse. It seeks to describe, protect and uphold rights common to all people everywhere (although the normative specification of rights, and the assessments of universality, are disputed.) There is a massive literature on human rights.

A ‘right of reply’ or a ‘consumer right’ are examples of rights that are not necessarily ‘human rights’, because they are ‘differential’ rights pertaining to particular people and circumstances.

7. A ‘lingua franca’ for ethics. Philosophical disputes about the validity of ‘rights talk’ may not be very helpful in popular or public discussion. Rightly or wrongly, the wider community assumes that ‘rights’ are valid as a general concept. It is generally held that the concept of a ‘right’ is not in need of discussion. It follows that those who question the validity of rights discourse are likely to be misunderstood or misrepresented.

Indeed ‘rights’ and ‘human rights’ have become a widespread language for the discussion of ethics itself. It follows that those who are ‘against rights’ or ‘against human rights’ can be misheard or misrepresented as being in favour of unethical behaviour.

There may be some value in questioning the limitations of rights discourse and in observing its abuses, but the matter will need to be approached with care. The political goal of such questioning would also need careful consideration.

8. Rights versus responsibilities? A common objection to rights discourse (see para. 30) can imply that rights are contrary to responsibilities. It should be noted that rights theorists often try to take account of this point, and that rights discourse is arguably ‘maturing’ in this respect. For example: it is recognised that no ‘right’ in a civil society may be ‘infinitely’ asserted against another person or against another right; and that in reality, a right is only defended in a civil society when other parties undertake the responsibility to defend it.

Of course we also note that it is quite proper to observe that a right usually entails a responsibility. This important insight seeks to defend civil society, where care for each other (‘responsibilities’) obviates the need to bicker over the special interests (‘rights’) of the self. However, that insight may not be a strong defeater of a human rights legislative framework. The specification of human rights, and a framework for their defence, may presume and uphold reciprocal social responsibilities without formally specifying them.

9. Conceptual spheres. Human rights language is used in different conceptual spheres. For example, two important U.N. ‘covenants’ concern different aspects of the relationship of a State to its citizens. (Each covenant is briefly described in the Appendix, below.)

• The International Covenant on Civil and Political Rights (ICCPR) limits government intrusions into people’s lives.
• The International Covenant on Economic, Social and Cultural Rights (ICESCR) lists various human aspirations that governments should assist people to achieve.

The logic and philosophy of these two broad spheres is quite different.

II. Overlap of Bible, ‘rights’ and ‘human rights’.

10. Context. Christians are rightly suspicious of ethical claims to ‘know good and evil’ without reference to God. Yet Christians also affirm some secular ethical discussion. We may do so for the good of a neighbour, to explain the Christian worldview, or to commend the gospel.

Likewise, human rights discourse can present itself as an exercise in godless human autonomy. But it offers opportunities to protect neighbours, to explain a Christian worldview, and for gospel engagement. This is so because rights‐discourse overlaps with biblical concepts and with a Christian theology of ethics.

11. Biblical language equivalents? The biblical languages have no direct equivalent to our modern ‘right’ or ‘human rights’. The large semantic and conceptual range of rights discourse also complicates our discernment of where it overlaps with biblical language and concepts.

12. ‘Rights’ in English bibles. Modern translators use English ‘rights’ for a variety of Hebrew and Greek terms. It is not found in the KJV (although ‘the right of’ often appears there), and RSV uses the term with less frequency than NIV. This gradually increasing frequency in newer translations parallels its emergence as the ‘lingua franca’ of modern ethics. Intentionally or not, these translational choices implicitly endorse modern conceptions of rights.

13. Biblical ‘differential rights’. Of the verses where English ‘rights’ is employed, some refer to what we could perhaps call ‘differential rights’, including the inheritance due to a firstborn, the particularity of care of due to a spouse, and the authority pertaining to the office of king or apostle. (RSV: Exod. 21:10; 1 Co. 7:3; 9:15. NIV: Exod. 21:9‐10; Deut. 21:16; 1 Chr. 5:1‐2; 1 Co. 9:4‐5, 15, 18; Gal. 4:5; Heb. 12:16.) Arguably, some of these translational decisions may camouflage important nuances in the biblical logic of justice and authority. (For example, the NIV use of ‘right’ in Rev. 2:7 and 3:21 shifts the emphasis away from the gracious authority of the Lord Jesus toward an implication that ‘righteous’ people may claim certain rewards.)

14. Biblical ‘human rights’. Another cluster of such verses evinces the discussion of universal ‘human rights’, where ‘rights’ translates a cluster of Hebrew terms for the ‘just judgements‘ due to weak and vulnerable people. (RSV: 1 Sam. 10:25; Prov. 29:7; 31:5, 8f; Jer. 5:28. NIV: Job 36:6; Ps. 82:3; Prov. 31:5, 8‐9; Eccl. 5:8; Isa. 10:2; Jer. 5:28; Lam. 3:35.) One translation even goes so far as to use the modern phrase ‘human rights’ (New Jerusalem Bible: Lam. 3:35).

15. Creation and rights. But most Christian discussions of human rights do not begin with such translational choices. They point to the biblical anthropology introduced in Genesis 1‐2 and continued throughout the Bible. According to this view, the first parents of humanity are created in the image of God and as co‐equal vice‐regents over the planet. It follows that no human may treat another as less precious than themselves before God (cf. Gen. 4:10f; 9:6). It also follows that humanity is to be treated with even greater care than that due to the created order. Both entailments are seen in subsequent biblical law and ethics. The concept of ‘human dignity’ evolved as an expression of both these entailments. The concept of ‘human rights’ is a legal expression of human dignity, based in part upon these biblical beginnings. It is now ‘shorthand’ for how we may not treat anyone as intrinsically inferior to ourselves.

Although this argument has much to commend it, we should also pause to observe the sovereign role of God in biblical morality. Any moral order that is evident in the creation derives ultimately from the character of God, and so any ‘rights’ that people have are contingent upon God’s goodness in creation. Even human life itself is not ‘sacrosanct’ in Scripture, since God is at liberty to withdraw it, and occasionally authorises others to do so. A thoroughly scriptural account of the ‘rights and wrongs of rights’ will need to take this authority of God into account.

A key question becomes: may we endorse the ‘shorthand’ without compromising God’s name?

16. Equality and rights. Human rights become problematic when applied to the inequalities between people. But this problem is actually the continuation an older disagreement over the nature of ‘equality’ and its relationship to ‘justice’.

It can be argued that the Bible expresses justice by strict equality in extreme situations, such as impending death, dire social exclusion, or when facing legal judgment. But in the normal orderly conduct of society, justice is expressed as appropriate responses to differences between people (e.g. differences of office, of giftedness, or of work performed). Justice then determines what response (e.g. honour, recognition, or payment) the difference calls forth.

The task of judgment becomes to discern when strict equality of action toward all is required, or when the appropriate response to each person’s particular situation is required. Human rights discourse will require the same task of discernment.

Some argue that human rights discourse is well‐suited to bring justice in extreme situations, such as dire social exclusion (e.g. extreme poverty), at legal trials, or when death threatens (e.g. extreme ill‐health or during natural disasters). But others argue that human rights discourse lacks nuance, because it conflates the ‘justice as equality’ that is needed in extreme situations with the ‘justice as appropriate response’ that is needed in recognition of human differences.

(The reception and implementation of the UN’s ICCPR has been less controversial than that of the ICESCR. Perhaps that is because very broadly speaking, the ICCPR is mainly concerned to avoid or remedy extreme situations, whereas the ICESCR promotes many aspirations and institutions to enhance the normal orderly conduct of a society.)

17. Tyranny and rights. Modern human rights frameworks also seek to defend against government tyranny. Several Old Testament references routinely limit the actions of Israelite kings, particularly in comparison to contemporaneous ancient near‐eastern despots; and after Christ’s victory over all other authorities (1 Cor. 15:24; Eph. 1:21; Phil. 2:9; Col. 2:10), the power of rulers is consistently whittled away.

Yet conservative Christians have often been reluctant to assert that the Bible endorses the limitation of tyrants. This view is based upon debatable readings of Matthew 22:21, Romans 13:1‐17 and 1 Peter 2:13‐17, and upon the observation that neither Jesus nor Paul nor the prophets of the exile espoused revolution.

However it can equally be argued that democratic traditions grew from Christ’s exaltation to glory. Freedom of conscience, speech and assembly arose as the churches responded to Christ’s Word and Spirit. Temperate legal judgments arose as judges received and imitated the merciful judgment of God in Christ. Under Christian theological influence over two millennia, Western culture was blessed by new ‘standards of governance’ revealed in Christ.

There can be no return to despotism since Christ has shown the nature of true rule. These new expectations upon rulers continue to be exported in an increasingly globalised world. Hence it can be argued that Christians have good reason to support human rights initiatives against the incursions of tyranny—while always objecting to the attempted erasure of Jesus Christ as the Source and Sovereign of proper rule.

III. A short history of rights-discourse.

18. Context. But what explanation can be given for these overlaps of modern ‘rights’ with biblical concepts and with theological ethics? Perhaps ‘rights’ are wholly alien to Christian thought, and the overlaps only accidental. Or, perhaps there is some organic link between modern ‘rights’ and historic Christian thought. This section attempts to arbitrate between those possibilities. It is denser, yet is worth persevering with for reasons that will be explained below.

19. A Western emphasis. According to C. Taylor, all cultures somehow indicate that human beings command respect (although the circle drawn around those to be respected does vary). But peculiar to the modern West is the formulation of this principle in terms of a ‘right’, understood as “a legal privilege which is seen as a quasi‐possession of the agent to whom it is attributed.” How did this formulation evolve in the West?

20. A complex story summarised. In brief, ‘what is right’ morphed over time into ‘my right’, moving the emphasis of justice away from an objective moral order toward the subjective claims of individuals (and later, communities). But various accounts are given of the history of these ideas. The following rough sketch camouflages a great deal of academic dispute.

21. Origin: ‘natural law’. In early medieval thought, God institutes and then reveals a ‘natural law’: that is, an objective moral order that people are ‘under’ and to which we submit (either joyously or rebelliously). This natural moral order confers various benefits upon each of us.

22. Transition: ‘natural right’. For later medieval thinkers, under ‘natural law’ we each acquire a subjective power to act lawfully (‘my right’). “At first such rights were seen as differential possessions: some people had the right to participate in certain assemblies, or to give counsel, or to collect tolls on this river, and so on.” (C. Taylor)

23. Turmoil: historical events. Historians also observe that thought about human rights was not limited to the quiet halls of philosophers. The struggle over the Magna Carta, or the brief against Charles I and his trial and execution under the rule of Cromwell’s Parliament, are often hailed as milestones in the development of rights. The development of rights discourse is but one aspect of an ongoing social negotiation about the complexities of ‘restraining wickedness and vice’, including that of rulers who sought to evade the rule of Christ over them.

24. Flowering: rights and contract. “The revolution in natural law theory in the seventeenth century partly consisted in using this language of rights to express ... universal moral norms” (C. Taylor). In this early modern period, such language made it possible to describe society in terms of the ‘natural rights’ due to each citizen, with law understood as a system of ‘social contracts’ to protect those rights. But importantly, at this stage the controlling concept of ‘natural law’ had not been lost. Therefore the content of early modern rights (e.g. to ‘life’, ‘liberty’ and property) could command a general consensus.

25. Eclipse: alternative approaches. But ‘natural law’ by now included no reference to divine revelation. Its determination therefore became increasingly controversial. Hence concepts of ‘natural law’ and ‘natural rights’ fell into disfavour, and by the mid‐nineteenth century, English law was criticised for its evident injustices and its many inconsistencies. Two alternative systems of moral and legal philosophy—Kant’s duty‐based ‘categorical imperative’, and Mill’s consequentialist ‘utilitarianism’—fought for pre‐eminence; but these systems, though rivals, both jettisoned ‘natural law’ and privileged the power of human rationality to determine the good. Both approaches dominated ethics, law and politics until well into the twentieth century.

26. Revival: a response to brutality and hubris. In an attempt to curb twentieth‐century excesses and atrocities committed first by Spanish communists and later by Nazi fascists, Roman Catholic moral thought reintroduced the language of rights. It appeared in pre‐war defences of private property and of basic human units such as the family, and in response to the executions of priests during the Spanish Civil War. In the post‐war ‘human rights revolution’ (and under the influence of Catholic intellectual Jacques Maritain), it was the most available language for responding to the oppression, imprisonment and murder of millions. It was this milieu that gave rise to the UN’s important 1948 Universal Declaration of Human Rights, two subsequent Covenants and several other UN legal instruments (see Appendix).

But the concept of any ‘natural law’, which had been jettisoned in the eighteenth and nineteenth centuries, was not revived.

27. Globalisation: an international human rights framework. The last three decades have seen a coordinated effort to enable national legislatures to govern according to the ‘spirit’ of international human rights agreements. The debate to be had concerning our own Federal legislature should be regarded in this context.

Since the Australian Government is already signatory to several international human rights instruments, human rights activists argue that it should be no problem, in principle, to interrogate our laws for their congruence with these instruments.

28. Tension: contrasting traditions of law. The recent development of rights discourse has occurred largely in a European context. Broadly speaking, law in the European tradition is more overtly ‘aspirational’. It helps to state and shape the kind of moral community to which a society aspires.

In contrast, Austral‐Anglo‐American legal tradition is more sceptical and adversarial. It sets out the basic minimums of action and behaviour that a community member must observe. But statements of the society’s moral aspirations are left to other social institutions (e.g. churches).

Over several decades, Australian legal education has increasingly paid attention to the European tradition. It is unsurprising, then, that some tension over human rights has become evident both within and beyond our legal profession.

Underlying the human rights discussion is a deeper philosophical point at issue: the extent to which the law should intentionally express and overtly set out a community’s moral aspirations.

IV. Common objections to a human rights framework

29. Context. The following objections to a human rights framework often appear in media reports and general Christian discussion. We will not systematically evaluate the objections here, although some comments about them follow in paragraphs 36‐38.

30. The sufficiency of common law. This objection argues that eight centuries of English common law tradition is already ‘a vast bill of rights’ (C. Francis), which has already developed in such a way as to protect basic human rights most admirably. The burden of proof is therefore transferred to anyone who would argue that this tradition needs augmentation by a human rights framework.

31. Elevation of an activist judiciary over the parliament. According to the third objection, law conducted within a human rights framework licenses the judiciary to rule the Parliament. The current separation of powers means that our parliaments make laws that our judges interpret. But a ‘charter of rights’ would enable unelected judges to preside over elected representatives, and the separation of powers would be compromised.

32. Erosion of citizen responsibilities and ‘civil society’. This objection concerns the rise of rights discourse in general. If a ‘right’ is correctly understood to be a moral claim or an assertion of entitlement, then a rise in rights discourse turns citizens into claimants upon each other rather than contributors to society. Such an emphasis erodes relationships of trust and cooperation by downplaying the responsibilities that citizens have toward each other. A human rights legislative framework, it is concluded, will only serve to accelerate this cultural trend.

33. A ‘lawyers’ picnic’. This colloquial objection pictures a consequence of the previous two scenarios. Only the legal industry profits as an ever‐increasing number of human transactions are subjected to the logic of rights‐claims, and special interests are given legal privilege in a way that damages social cohesion.

34. The spectre of novel rights. A fifth objection claims that a human rights framework will be leveraged by special interest groups for ‘socially progressive’ liberal agendas. [Behind this objection is a wider ‘culture war’, where defenders of traditional ‘family’ (children raised by a married man and woman) oppose and are opposed by proponents of diverse ‘families’ (domestic groupings that include same‐sex couples, de‐facto couples, single parents etc.).]

35. Unproven results. Opponents of human rights frameworks ask whether there is evidence to suggest that the most vulnerable groups (such as children, indigenous people and the poor) have been advanced by human rights frameworks. They often point to dysfunctional or tyrannical regimes where human rights law is ostensibly in effect. (The discussion is complicated by disputes over evidence, or by other confounding factors within the polities concerned.)

36. Comment (A): Human rights are well‐intentioned. The ‘restraint of wickedness and vice’ is a centuries‐old social project, and arguments for and against a human rights framework are another stage in society’s negotiations about this complex task. Any government involvement deserves an assumption of goodwill and some degree of respect, even where we disagree.

37. Comment (B): These objections have been seriously addressed. Human rights activists believe they can answer each objection. Their replies deserve study and evaluation. Various legal models aim to regulate the judiciary’s relationship to parliament (para. 45). Indeed activists are motivated by a belief that the sovereignty of parliament, the expression of the people’s will, the accountability of modern governments, or the adequacy of law are already highly compromised. They point (e.g.) to the denial of habeas corpus under anti‐terror laws; to the Federal Executive’s accrual of power; or at a State level, to some vulnerabilities in private property ownership.

38. Comment (C): These objections are not overtly theological. The objections concern the practical prudence of a human rights framework. Of course Christians may express considered opinions about what is likely to work for the public good. But our prior task is to discern and express those theological truths that are known to us as disciples of Christ. Some care, then, will be needed to distinguish comments that have theological warrant from other comments.

V. Toward a Christian response.

39. Context. The objections we have seen are not theological as such. But distinctively Christian objections to human rights often conflict with distinctively Christian affirmations of human rights. We need to consider, then, what might account for this disagreement among Christians.

The account above (paras 21‐26) produces two somewhat contradictory conclusions. These two conclusions explain Christian disagreements.

More optimistically, they may even offer ‘channel markers’ for a Christian response.

40. Two contradictory conclusions. The historical account above (paras 21‐26) includes two significant ‘atheological moments’:

1. when ‘natural law’ drifts free from divine revelation; and
2. when ‘natural law’ itself is discarded.

The theologically informed origins of the account, and these two ‘atheological moments’, result in somewhat contradictory conclusions:

• On the one hand, rights language is no longer controlled by an objective moral order or by any divine revelation. Rights discourse can therefore ‘malfunction’. It can be used to press for special interests without reference to wider concepts of justice, and can be asserted against other claims in ways that are difficult to arbitrate.

  (Similar problems can occur within existing justice systems, and can be construed as a difficulty inherent to administering justice in a complex and fallen world.)

  ... For these reasons many Christians cannot endorse ‘human rights’.

• On the other hand, a Christian theology of ethics defends human life and various familial and communal interactions. These defences are expressed in the Bible, match the God‐given natural moral order, and have been ‘repackaged’ as ‘human rights’—a spectacularly successful popular reassertion of some key elements of the moral order.

  (Similar praise could be given to some features of existing justice systems, since under the providence of God all justice systems eventually approximate something of his natural moral order.)

  ... For these reasons many Christians cannot oppose ‘human rights’.

Clearly then, careful thought will be needed about what to endorse and what to oppose!

41. Christian disagreement. These two conclusions may explain why Christians are polarised over the value or dangers of an Australian human rights framework. ‘Some Christians have denied the whole concept of human rights, believing that we only have responsibilities and duties towards one another. Others are concerned that the notion of human rights is becoming so dominant that human responsibilities are diminishing. Yet others believe that the modern notion of human rights contains within it an essential Christian component which it is the duty of the church to preserve and the mission of the church to propagate’ (J. Stott). Evangelical Christians are similarly divided, and we have seen these disagreements emerge within SIE discussion.

42. A Christian response within ‘channel markers’. There are good reasons to think that Christians can support a human rights framework if it enhances the normal orderly conduct of society; or if it protects from tyranny; or if it brings equality to the extreme situations of legal trial, social exclusion and the protection of human life (although we should immediately note the absurd exception, at this point, of the unborn in modern Western jurisdictions). A careful Christian response might endorse those expressions of human rights that defend what Catholics call ‘human dignity’ and what Protestants call ‘moral absolutes’.

But Christians also remain very conscious that the introduction of human rights provisions can give rise to unhelpful bickering over special interests at the expense of civil society, since the society is not able to agree about a common good, based in a natural moral order that has been given by God and revealed in the incarnate and enscripturated Word.

43. Terms of debate. Conservative Christians tend to question the validity of rights discourse in general. But the forthcoming debate will be about the extent to which Australian laws should be checked against an internationally agreed framework of human rights. The terms of the debate will not be an abstract discussion of the validity of ‘rights’ in general, and Christian comment will need at least to demonstrate an understanding of these terms of debate.

44. Risks of conservatism. In view of the difficulties, some may prefer simply to oppose all and every attempt to introduce a human rights framework. However, such an approach can too easily be portrayed as a protection of special Christian interests at the expense of human dignity and the common good. Also, this strategy will be hard‐pressed to resist the rising tide of community expectation that good law should at least make some reference to human rights.

45. Legal intricacies. Versions of both the ‘constitutional’ and the (more flexible) ‘statutory’ model may be proposed for an Australian human rights framework. All serious proponents distance themselves from the U.S. model (which is governed by a ‘constitutional’ Bill, with Amendments, of very general rights). Each model has different strengths and weaknesses (and examples are outlined in a companion SIE paper). The final legal expression of human rights, and the legal sanctions to be employed, will materially affect a Christian response. Therefore, an abstract general position on human rights will unfortunately not suffice. Familiarity with the legal models will be essential to an informed comment.

(In a sense, human rights proponents seek better legal ‘tools’ to work with. We may do legal practitioners a service by assisting in the construction of human rights ‘tools’. Or, if we have good grounds to oppose a human rights framework, we may do a similar service by identifying the legal problems in need of solution and then suggesting better ‘tools’.)

46. The specification stage. When a human rights framework is under development, there comes a ‘horse trading’ stage when a particular set of rights is settled. That is, the law needs to specify a particular set of rights to be approved at law, and perhaps defended by the law (depending on the legal model used). Human rights proponents remain optimistic that societies can navigate this stage. But for others it is a ‘deal breaker’, because they fear the prospect of a legal regime where their ‘right’ is not protected.

Christians often express concerns along these lines. For example, the evangelical Christian may fear that their ‘human right’ of free speech and free assembly will be eclipsed by the gay person’s ‘human right’ of social tolerance and equal opportunity. Christians may fear such ‘deal breakers’ enough to completely oppose a human rights framework from the outset. But if a human rights framework then goes ahead, such an initial strategy may later marginalise the Christian contribution (especially if we have only been pleading for special Christian interests).

Proper Christian thinking will seek to lift the debate to the set of rights that best promote the common good.

47. Intention versus performance. It is premature to judge whether any proposed changes will be effective in their intent. In brief, some argue that human rights legislative frameworks do not demonstrably improve human lives. Others argue that the use of human rights in a legislative context is maturing, and that political experience and legal expertise have refined the application of human rights frameworks.

Each such argument will need consideration on its merits, and is dependent in part upon the specific legal models under consideration.

48. Further detail. In the interests of brevity and clarity, this paper has deliberately avoided too much detail at some points. The SIE will be glad to supply further detail on any matters raised (or not raised) here.

49. Future directions. Our suggestion is that a working group be convened to gain clarity on what legal frameworks are proposed; what list(s) of protected human rights are proposed; what a Christian position on each of these proposed protections might be; what views of justice are operative and are supportable; and whether the proposed frameworks are likely to improve human lives.

Appendix: UN instruments

50. Context. A human rights framework for the Australian legislature would be designed in observance of international human rights instruments to which Australia is a signatory. The following paragraphs introduce the three main UN human rights instruments. Although there are others, this glimpse offers some content in a discussion that can become lost in abstraction.

51. Universal Declaration of Human Rights. The UDHR (1948) (http://www.unhchr.ch/udhr/lang/eng.htm) makes no attempt to define a ‘right’ in abstract. “All human beings are born free and equal in dignity and rights,” asserts its first article. “They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Recognition and knowledge of “the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” according to the preamble. The motivation of the document is therefore to advance freedom, justice and peace through the knowledge and recognition of rights. A cluster of positive and negative rights are then listed.

52. Variance in magnitude. The UDHR enumerates as ‘rights’ matters that vary in magnitude:

• Some are ‘weighty’: e.g. rights to life, liberty, security; equal and just treatment before the law; freedom of movement; nationality; marriage and procreation; property ownership; freedom of thought, conscience and religion; freedom of opinion and expression; freedom of peaceful assembly and association; and participation in government.
• Others are less ‘weighty’: e.g. rights to social security, fair work and pay, and adequate standards of living; special care for mothers and children; education; cultural participation; and even the right to “periodic holidays with pay” and rights for “the free development of ... personality”.

Subsequent legal instruments have tried to deal with this variance in magnitude, and some argue that a maturation in the legal practice of human rights can be observed.

53. International Covenant on Civil and Political Rights. The ICCPR (1966) (http://www2.ohchr.org/english/law/ccpr.htm) deals with rights to live without tyrannical interference to participate in the democratic process, including:

• freedom of speech and religion;
• the right to vote;
• freedom from unfair arrest and detention and the right to a fair trial; and
• freedom of association and the right to join trade unions.

54. International Covenant on Economic, Social and Cultural Rights. The ICESCR (1966) (http://www2.ohchr.org/english/law/cescr.htm) deals with a State’s responsibility to promote the accessibility of basic living standards, including:

• food security, housing, work, social security, education and health; and
• fair wages and safe working conditions.

55. Other UN instruments. Several other international human rights instruments now exist. Considerable legal and technical expertise is required to navigate and apply them. (See http://www2.ohchr.org/english/law.)