May 5th 2018

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Articles from this issue:

COVER STORY HECS: hastening our demographic winter

EDITORIAL Liddell is the 'fly in the ointment' of the NEG

AFRICAN AFFAIRS African Continental Free Trade Area ... in the spirit of GATT

CANBERRA OBSERVED Bernardi foray looks to be fading out of view

ENVIRONMENT Is a prolonged freeze on the way for the earth?

MEDICINE NaProTechnology: an ethical alternative in reproductive health

MEDICAL ETHICS Grounds for objection: a declaration on freedom of conscience

OPINION What a republic would really mean for Australia

LAW AND FREEDOM 'Rule of law' does not support exemptions: a reply to Robin Speed

INTERNATIONAL AFFAIRS Saudi Crown Prince challenges Wahhabists

HIGHER EDUCATION Undoing the dis-education of Millennials

GENDER POLITICS Why are patients being denied freedom of choice?

ASIAN HISTORY Jinmen: the forgotten crisis that brought the world to the brink


MUSIC Grammy salute to Elton John: Revealing revisit to the 1970s

CINEMA The Isle of Dogs: Man's best friend in exile

BOOK REVIEW Australia, we need to talk about China

BOOK REVIEW Novelised life a vivid drama of survival



NATIONAL AFFAIRS Committal hearing dismisses main charges against Cardinal Pell

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'Rule of law' does not support exemptions: a reply to Robin Speed

by Augusto Zimmermann

News Weekly, May 5, 2018

Robin Speed is president of the Rule of Law Institute of Australia. In his News Weekly, April 7, 2018 article, he claims that in my News Weekly article of March 10, 2018, I seek a “clear protection” from the many and varied real and pressing attacks on religious liberty and freedom of conscience in this country.

Unfortunately, it would seem that Mr Speed has misunderstood my argument.

Contrary to Mr Speed’s assertions, I do not acknowledge the authority of Parliament to enact such abstract statements. For me, religious freedom is not a state-given right, but rather a fundamental right of the individual. As John Stott put it: “We received them with our life from the hand of our Maker. They are inherent in our creation.”

While I strongly believe that religious freedom is not sufficiently protected in Australia, I certainly don’t believe that freedom of religion is best served by introducing general or broad-based new legislative measures or constitutional protections.

In particular, I hold serious concerns about the potential introduction of a bill of rights in Australia. Such a bill of rights would not itself avoid questions arising about the balance to be struck between conflicting human rights. All that it would achieve would be to shift such questions from Parliament to the court.

Given that such questions can be highly divisive, they are much better suited to being decided by our elected representatives, who are ultimately responsible to the people, rather than by unelected judges, who are not. Shifting the responsibility for contentious social policy decisions from the Parliament to the court would be a significant and undesirable change.

As noted by the late Owen Hood Phillips, a leading constitutional lawyer who also was an Emeritus Professor of Jurisprudence at the University of Birmingham, “historically, the phrase ‘Rule of Law’ was used with reference to a [Judeo-Christian] belief in the existence of law possessing higher authority – whether divine or natural – than that of the law promulgated by human rulers which imposed limits on their power”. (O.H. Phillips and P. Jackson, O. Hood Phillips’ Constitutional and Administrative Law)

In Mr Speed’s view, however, “we have to fight for exceptions to specific statutory attacks”. I disagree. After all, through the recent legalisation of the redefinition of marriage, the philoso­phical underpinnings of the rule of law are being further replaced by a myriad of so-called humanistic philosophies that take no account of the religious values upon which the law and society were founded.

As a result, it is certainly not safe to assume that the rule of law will survive in Australia’s present post-Christian, morally relativistic environment.

The ideal of legality known as the “rule of law” is far more than the existence of statutory provisions; it also requires the state to act in accordance with principles of a “higher law”. When courts and parliaments deny the existence or relevance of these higher laws and, by their enactments, allow people to live in opposition to them, the fabric of society begins to unravel.

Mr Speed’s “fight for exceptions” is misleading. It amounts to disregarding a basic element for the realisation of the rule of law – namely, the generality of the law. Such generality asserts that laws must not contain exemptions but rather apply to the generality of all individuals.

According to the eminent legal philosopher, Jeremy Waldron, the rule of law “insists that the making of [legal] orders should be guided by the application of universal rules … or at least justified in terms of universal principles”. Hence, generality becomes a means by which laws should not reflect the will of a few individuals.

This particular understanding of generality holds that laws should act impersonally so as to reduce the scope for discrimination. The objective is not to impose a condition of substantive equality among the citizens but to prevent laws from unnecessarily harming individuals or social groups.

What this underlying principle advances is that legal exemptions should always be avoided. The goal of the rule of law is not to promote the interests of some people at the expense of others. Rather, the goal is to protect everyone without any distinction whatsoever.

As president of the Rule of Law Institute, Mr Speed should be reminded that this important element of the rule of law does not easily admit “exceptions” to the law. Good laws don’t require exceptions. By contrast, bad laws require exceptions; but because they are bad laws they should actually be repealed.

Above all, the rule of law rests on “a strong perception that it is wrong to use the law to place the interests of some people ahead of others”. Such ideal of legality is better realised when citizens are treated equally by the law, and such a law only pursues objectives that are good for everyone and not those that benefit only a few.

In other words, this is about achieving an equitable system whereby people are treated as equals before the law, without any prejudice derived from origin, race, sex, age and any other form of discrimination. Above all, generality of the law implies the avoidance of differential treatment of individuals and groups.

In sum, the exemptions as proposed by Mr Speed constitute a disregard for the rule-of-law tradition of generality of the law. And I would never support an abstract declaration of religious freedom because I believe this is definitely not part of our legal tradition.

Dr Augusto Zimmermann is Professor of Law at Sheridan College in Perth. He is also Adjunct Professor of Law at the University of Notre Dame Australia, Sydney campus. Dr Zimmermann’s PhD thesis at Monash University (“Waiting for the Rule of Law: Legal and Extra-legal Obstacles for the Realisation of the Rule of Law”) examined legal and extra-legal aspects that, in a particular social-political-cultural context, determine the success or failure of the implementation of the rule of law.

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