Rev Terrence Corkin,

General Secretary,

Uniting Church in Australia National Assembly

The email below may be of interest re your letter to the editor (‘Not all Christian leaders stand with Cardinal Pell’, Australian 24-25 /10/09) in which it was suggested, in effect, that:

Not all church leaders share concerns about human rights legislation. The Uniting Church is the only Australian church to officially support such an act – though many other church groups are supportive (eg General Synod of Anglican Church, Quakers). The Uniting Church supports this because indigenous Australians, people with disabilities, the homeless and other disadvantaged groups often fall through the cracks in society. A Human Rights Act will help protect the most vulnerable, and can include protection for religious freedom

Unfortunately the creation of a ‘charter of rights’ would seem, in effect, to make the state (rather than churches as institutions that are not under state control) into the ultimate provider of moral authority within our society, and thus require the state to define the nature of and enforce moral behaviour (rather than leaving this to individual consciences responsible to God as the churches have done).

This would undermine important features of societies such as those in Australia where huge political and economic advantages have flowed from individual liberty. It is not only religious freedom that could ultimately be reduced – in the same way that presumptions of human moral authority limit individual freedom in societies that lack a Christian heritage (eg in the Muslim and Confucian worlds).

Might I seriously suggest that the Uniting church should look at the broader implications of this proposal, beyond those mentioned in your letter.

Regards

John Craig

***

Paul Kelly and Chris Merrit

The Australian

Re: Human <http://www.theaustralian.news.com.au/story/0,24897,26189707-601,00.html> rights charter a recipe for chaos as Frank Brennan cites ‘enormous problems’, The Australian, 10-11/10/09

I noted your observations about the possibility of ‘chaos’ in Australia’s system of government if a ‘Human Rights Act’ is put in place, and would like to suggest two other issues that need serious consideration – namely a likely constraint on individual liberties and the perpetuation of some peoples’ disadvantage that could result.

The State as Moral Authority will Constrain Liberty

It is my understanding that under the British legal tradition that Australia inherited, individuals have a presumed right to do anything that is not legislatively prohibited (eg one may have the the right to do anything but A, B, and C). However, when a limited number of ‘rights’ are legislatively defined (eg one has the right to X, Y, and Z), individuals may be unnecessarily constrained (eg the right to D, E, F …. W will be less certain).

This risk was apparently amongst the many recognised in the National <http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/(4CA0 2151F94FFB778ADAEC2E6EA8653D)~NHRC+Report+(Summary).pdf/$file/NHRC+Report+(S ummary).pdf> Human Rights Consultation Report (Section 13).

However the issue is more complex, because the basis of Australia’s tradition of individual liberty is that “right behaviour” is determined primarily by a “consider others’ interests” ethical ideal built into individual consciences rather than by formal moral legalism or the constraining influence of social elites (see Moral <http://cpds.apana.org.au/Teams/Articles/governance_crisis.htm#Moral> Foundations of Individual Liberty). Moreover, as the latter argues:

*that ethical ideal: (a) has its origin in Australia’s Judeo-Christian heritage; (b) has had huge economic and political benefits; and (c) is being eroded by the decline in Christ-ian adherence within the community, leading to severe social problems; and

*as a consequence the state is under increasing pressure to try to define the nature of, and enforce, moral behaviour – and this potentially has severe adverse consequences for individual liberty and the economic / political benefits derived from it.

The proposals by the Human Rights Consultation (which include not only legislating particular rights but also state-driven ‘moral’ education of the community generally) would presumably-inadvertently constitute a breakdown in the separation between church and state – a separation that has been critical to the success of Australia’s society and system of government.

Secondly, defining peoples’ ‘rights’ may inadvertently disadvantage them if the things that they are presumed to have a ‘right’ to have unrecognised adverse effects.

How this can happen is suggested in <http://cpds.apana.org.au/Documents/External/UNDeclarationIndigenousRights.h tm> UN Declaration on the Rights of Indigenous Peoples: Perpetuating Disadvantage? The key point is that cultural assumptions play a significant role in the material success which particular societies can enjoy, and protecting dysfunctional assumptions as some peoples’ ‘right’ can (inadvertently) be counterproductive.

Regards

John Craig

Centre for Policy and Development Systems

CPDS supports leaders developing enterprise, economic, community and governance systems

Visit <http://cpds.apana.org.au/index.html>

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