{"id":26422,"date":"2017-10-23T19:01:59","date_gmt":"2017-10-23T23:01:59","guid":{"rendered":"https:\/\/www.cccc.org\/news_blogs\/?p=26422"},"modified":"2021-10-07T11:03:50","modified_gmt":"2021-10-07T15:03:50","slug":"hon-justice-francois-kunc-calls-bensonbussey-book-invaluable","status":"publish","type":"post","link":"https:\/\/www.cccc.org\/news_blogs\/intersection\/2017\/10\/23\/hon-justice-francois-kunc-calls-bensonbussey-book-invaluable\/","title":{"rendered":"Hon Justice Fran\u00e7ois Kunc Calls Benson\/Bussey Book “Invaluable”"},"content":{"rendered":"

The following were the remarks delivered by the Hon Justice Fran\u00e7ois Kunc<\/a>, a judge of the Supreme Court of New South Wales, on 20 October 2017 at the University of Notre Dame Australia Sydney Campus at the conclusion of the Second Annual Religious Freedom Conference \u201cFreedom of Belief Freedom of Action\u201d.<\/a><\/p>\n

Justice Kunc reviewed the Benson\/Bussey book, “Religion, Liberty and the Jurisdictional Limits of Law<\/a>,” published August 31, 2017.\u00a0 This is the first major assessment of the book and I thought our blog readers would appreciate hearing what Justice Kunc had to say:<\/p>\n

\"\"<\/p>\n

Prof Quinlan<\/a>, distinguished guests, ladies and gentlemen –<\/p>\n

I begin by paying my respects to the traditional owners of the land on which we meet, the Gadigal People of the Eora Nation and to their elders past and present. I also pay my respects to all persons here today of Aboriginal and Torres Strait Islander heritage.<\/p>\n

I am grateful to Prof Quinlan for his kind invitation to offer some observations on the occasion of the launch of these two important books.[2]<\/a>2 I would also like to offer my congratulations to Prof Quinlan and his collaborators here in the University of Notre Dame Australia\u2019s School of Law at Sydney<\/a> on the organisation of this Second Annual Religious Freedom Conference. The programme looks to have been a very interesting one and I regret that court commitments have meant that I have been unable to attend the various presentations. However, having had the opportunity to read through both Prof Benson<\/a> and Prof Adolphe\u2019s<\/a> books (and in referring to them that way I intend to include their co-editors), I have no doubt that both of these books make very worthwhile \u201ctakeaways\u201d from this conference.<\/p>\n

As an audience interested in human rights law generally, and questions of religious liberty in particular, you are gathered at a very interesting time, both locally and internationally. Let me give three examples, all of which I assume will be familiar.<\/p>\n

A few weeks ago, the Royal Commission into Institutional Responses to Child Sexual Abuse published its Criminal Justice Report. Recommendation 35 of that report was to the effect that the proposed \u201cfailure to report\u201d offence should apply to information disclosed in a religious confession and that no excuse, protection or privilege should apply to such disclosures. That recommendation may be contrasted with Canon 983(1) of the Catholic Church\u2019s Code of Canon Law which provides that \u201cThe sacramental seal is inviolable; therefore, it is absolutely forbidden for a confessor to betray in any way a penitent by words or in any other manner and for any reason\u201d.<\/p>\n

While the Commonwealth Government\u2019s response to that recommendation is unknown, it is possible that the stage has been set for what may be one of the most serious confrontations between Church and State in Australia since the state aid debates. Father Frank Brennan SJ, a law professor and Jesuit priest, has written in the national press that if the civil law protecting the confessional seal will change, \u201cI will conscientiously refuse to comply with the law because in good faith I will be able to claim that it is a bad law which does nothing to protect children and which may take away the one possibility that a sex offender will repent and turn himself in.\u201d The Roman Catholic Archbishop of Melbourne has announced that he would go to prison before breaking the seal of the confessional.<\/p>\n

A second example of these interesting times is that on 15 November 2017 the results of the Australian Marriage Law Postal Survey will be published. According to newspaper reports, even high-profile supporters of the \u201cNo\u201d case expect the \u201cYes\u201d case to receive the majority of votes. In that event, it is expected that Parliament will move to enact legislation to give effect to the result of the survey. That legislation will bring to a head a debate about the extent to which provision should be made for religious and other conscientious objections.<\/p>\n

It is, as yet, unclear what the bill to amend the Marriage Act 1961 (Cth) will look like. According to media reports, at least one private member\u2019s bill is waiting in the wings. However the debate proceeds, it will be taking place against the background of what seems to have been an entirely unexpected finding of the February 2017 report of the Senate Select Committee on the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill. That bipartisan report concluded (at paragraph 3.142) that \u201coverall the evidence supports the need for current protections for religious freedom to be enhanced. This would most appropriately be achieved through the inclusion of ‘religious belief’ in federal anti-discrimination law.\u201d<\/p>\n

A third interesting development, this time from Canada, which I might refer to as the \u201chome\u201d of Prof Benson\u2019s book, is that on 30 November and 1 December this year, the Supreme Court of Canada will hear the appeals in those cases concerning the accreditation of Trinity Western University. Leave has been granted to 26 groups to intervene in that litigation, including those representing LGBTQIA organisations.<\/p>\n

Having, I hope, established that questions of religious liberty in human rights law are topical, I would like to say a few words about each of the books that is being launched this afternoon and then conclude with some observations about the signs of the times and how these books might be seen to cast light on the issues of the moment.<\/p>\n

I was left with the overwhelming desire to find a time machine that could take me back to the University of Toronto in May 2015 to attend the symposium at which the papers were given.<\/strong><\/em><\/p>\n

As I leafed through the various papers in Prof Benson\u2019s book, I was left with the overwhelming desire to find a time machine that could take me back to the University of Toronto in May 2015 to attend the symposium at which the papers were given. It must have been an absolutely fascinating event and Prof Benson<\/a> and Prof Bussey<\/a> have done an invaluable service in collecting the papers from the symposium into this book<\/a>.<\/p>\n

In the time available \u2013 as I stand between you and drinks at the end of two days of conferring\u00a0\u2013 it is, of course, impossible to say something about all of the papers in Prof Benson\u2019s book. I will touch briefly on some of the themes which that struck me as being of particular importance. However, I hope you will believe me that it is more than just the homage of one judge to another when I draw particular attention to Justice Lauwers\u2019<\/a> article on \u201cLiberal Pluralism and the Challenge of Religious Diversity\u201d. It sets out the issues with clarity and fairness and should be standard reading for law and philosophy undergraduates and anyone interested in these issues generally.<\/p>\n

However, because he is present with us today, I wish to look at some of the ideas in Prof Benson\u2019s introduction and then substantive article in the book. This requires considering four important ideas.<\/p>\n

First, he reminds us that \u201claw does not create liberty, or religious rights, but rather recognises them\u201d. I agree. One of my own reservations about much human rights discourse is its appeal to the word \u201ctoleration\u201d or \u201ctolerance\u201d. I have never liked it because of its connotation of a grudging concession by one part of the community to another. While I acknowledge that this is a contestable proposition, in my respectful opinion fundamental human rights are prior to the social unit which recognises and gives effect to them.<\/p>\n

Second, it is a very healthy thing for lawyers, policy makers and even judges to be reminded that law has its limits. This is something which the rule of law necessarily recognises. It may be contrasted with rule by law, which assumes that there are no limits to the role that law can play in regulating society. This is an important distinction which is often forgotten. The latter view is the preferred position of tyrants.<\/p>\n

Third, Prof Benson argues that, as far as possible, the state must be impartial between legitimate different positions. In today\u2019s environment this is undoubtedly important because a hard secularism can develop all too easily which, once adopted, becomes almost impossible to shift as the de facto<\/em> order. With time its status can become de jure<\/em>. This is what I understand various authors in the book to refer to as \u201ccivic totalism\u201d.<\/p>\n

The previous three considerations inform Prof Benson\u2019s central insight, which is based on the laudable desire to cease thinking about conflicts of rights as a zero-sum game with a winner and loser. I was struck by his comment that \u201cwhat is needed is a set of principles that genuinely provide for living together with disagreement\u201d. Those principles operate by reference to the context in which any given conflict of rights arises and is to be resolved.<\/p>\n

This culminates in Prof Benson\u2019s fundamental suggestion of a rebuttable presumption in favour of diversity. In Australia, the adoption of such principle would either have to be legislated or accepted by the High Court as a legitimate principle of constitutional interpretation.<\/p>\n

I think it is a fascinating idea, but for present purposes I confine myself to asking whether the same result can be achieved by applying either or both of the concepts of proportionality and unreasonable or impermissible burden. These are more familiar to Australian lawyers from the High Court\u2019s development of the implied constitutional freedom of expression of political opinion, most recently this week in its decision in Brown v State of Tasmania[3]<\/strong><\/a><\/em>.<\/p>\n

Two starting points might be a consideration of Sir Anthony Mason\u2019s article on \u201cThe Use of Proportionality in Australian Constitutional Law\u201d[4]<\/a> and Justice Virginia Bell\u2019s 2016 Sir Ninian Stephen Lecture, \u201cEquality, Proportionality and Dignity: the Guiding Principles for a Just Legal System\u201d[5]<\/a>. Reference to Sir Anthony\u2019s article allows me to acknowledge a further Canadian contribution in this area, as he points out that the foundational common law formulation of proportionality is the judgment of Dickson CJ in R v Oakes[6]<\/a>.<\/p>\n

It seems to me that measuring a proposed presumption in favour of diversity against the concepts of proportionality and unreasonable or impermissible burden might at least identify the particular contribution that Prof Benson\u2019s proposed presumption might make to the jurisprudence.<\/p>\n

Prof Adolphe\u2019s<\/a> book is the record of another conference, with some additional papers, which I also wish I could have attended. My most recent personal insight into the circumstances of Christians in the Middle East came a few weeks ago. In my capacity as the NSW Lieutenant of the Equestrian Order of the Holy Sepulchre of Jerusalem \u2013 the ancient order of the Catholic Church which funds the Latin Patriarchate of Jerusalem \u2013 I had the privilege to host a visit by the LPJ\u2019s Episcopal Vicar, Bishop Giacinto-Boulos Marcuzzo.<\/p>\n

The bishop was quite clear about the Church\u2019s principal pastoral challenge in many parts of the Middle East: creating an environment to encourage young Christians, in particular, to stay, including accommodating the needs of the many refugees who have flooded into the Holy Land and Jordan. This meant not just education and spiritual care, but creating employment opportunities and civic communities that would give the next generation a reason to stay. For us it was a graphic reminder that persecution can come in many forms: not just injury to the person and damage to property, but also economic and social exclusion.<\/p>\n

The articles in Prof Adolphe\u2019s book pull no punches, in that it is not only about persecution. As the title suggests, it looks at the serious assertions that have been made that genocide has been committed, as well as considering issues of prevention, prohibition and prosecution. The photographs used throughout the book are, as the saying goes, also worth many thousands of words.<\/p>\n

As with Prof Benson\u2019s book, time requires me to confine my remarks about Prof Adolphe\u2019s book tonight. Overall, I have no doubt that it is an excellent legal, political and, importantly, theological resource. Again, may I single out a contribution by Prof Adolphe by reason of her virtual presence with us this afternoon. Her chapter on \u201cSexual Violence as a Tactic of Terror: the Plight of Christian Women and Girls\u201d based around a case study of Boko Haram\u2019s abduction of Christian schoolgirls in Nigeria is a model of relevant and rigorous scholarship. International humanitarian law is often criticised because of its complicated and uncertain operation, especially the long delay that often accompanies bringing perpetrators to justice before the International Criminal Court or special tribunals. This is a point made by Prof Rychlak in his contribution on \u201cThe Failed Promise of the International Criminal Court\u201d.<\/p>\n

Nevertheless, a telling point is made by Prof Adolphe\u2019s article: the international legal framework serves an important purpose by encouraging and governing political and policy responses that are engaged to deal with problems as they happen, rather than just to create legal consequences after the fact.<\/p>\n

I would also like to mention Mr Geoffrey Strickland\u2019s chapter on \u201cSharia Law, the \u201cIslamic State\u201d, and the Persecution of Christians: Moving Past Phobia and Neologisms.\u201d Exposing and criticising what I understand to be the warped theology of ISIS or Daesh is an area where Christian and Muslim scholars of Islam and Sharia law can make common cause, because Muslims and Christians are also its victims. This is just one area where Christians and Muslims can create intellectual bonds which might then inform a joint approach to broader questions of religious liberty in civil society. In that context, I was delighted to see that the organisers of this conference had included a presentation by the distinguished Muslim Sydney Law School scholar Dr Ghena Krayem.<\/p>\n

Before leaving this topic it is important to note that in focusing on the persecution of Christians, I in no way intend to minimise the sufferings of other religious and ethnic groups. However, as Prof Rychlak says in his introduction: \u201cWhile we are concerned about horrors faced by all people, the focus of the book is on Christian victims. Too frequently they are overlooked\u201d. There does seem to be a significant body of evidence to demonstrate that the persecution of Christians does not, in the West, attract the degree of public (which really means media) attention that it deserves.<\/p>\n

Having briefly looked at both of the books which have been launched this afternoon, let me return to the signs of the times and how the lessons and ideas from these books speak to the present moment.<\/p>\n

Although on their face these two books might be thought to have little in common, I would like to suggest that in one way they represent two sides of a coin that is very much at home in a conference about human rights and religious liberty. Prof Benson\u2019s book offers the interested reader a compendium of the vocabulary and ideas that are essential for a respectful and intellectually rigorous conversation about the place of religious liberty in civil society. On the other side of the coin, Prof Adolphe\u2019s book offers a stark reminder of what happens when religious protections under the rule of law disappear to be replaced by unchecked religious persecution.<\/p>\n

We live in a moment of history when respectful and intellectually rigorous debate is very difficult, and some would say impossible, to conduct. I do not think that is either a novel or controversial impression of the zeitgeist. In September, the Lowy Institute\u2019s media award dinner was addressed by the well-known New York Times columnist Mr. Bret Stephens. His speech was entitled, \u201cThe Dying Art of Disagreement\u201d. He observed that in the world today, \u201cour disagreements may frequently hoarsen our voices, but they rarely sharpen our thinking, much less change our minds\u201d. He went on to say that \u201cIntelligent disagreement is the lifeblood of any thriving society\u201d.<\/p>\n

Mr Stevens\u2019 remarks resonate with those made many years ago by John Courtney Murray SJ, the doktorvater<\/em> of Vatican II\u2019s declaration on religious freedom, Dignitatis Humanae<\/em>. Murray, quoting the Dominican Thomas Gilby, wrote that \u201ccivilisation is formed by men locked together in argument. From this dialogue, the community becomes a political community.\u201d The editors of the Jesuit journal America<\/em> recently recalled that quotation to make the point that \u201cthe use of reason in argument is the specifying note of a civil society.\u201d<\/p>\n

Prof Benson and Prof Bussey have done an invaluable service in collecting the papers from the symposium into this book.<\/strong><\/em><\/p>\n

There is much in Prof Benson\u2019s book that can and should inform the debate that it appears we will have in the coming months on issues touching the appropriate balance to be struck between competing social values including what may be imprecisely referred to as the right to religious freedom. I wish to make it clear that, as a sitting judge, I have no view and am not to be taken as expressing any view about what are the appropriate outcomes of such debates. However, at the risk of being thought of as na\u00efve or quixotic, I do respectfully urge on the participants the importance of civility and reason.<\/p>\n

I am not sure that Australia is particularly experienced at these kind of debates. I suspect that many people are happy or relieved that is the case.<\/p>\n

Why might we be so inexperienced? The obvious reason, of course, is that we do not have a bill of rights. Our constitution is not the product of a popular revolution inspired by a particular view of the rights of men and women. Our national compact is the embodiment of a not always enthusiastic federation mediated through lawyers and politicians and given effect by an act of the\u00a0Imperial Parliament at Westminster.<\/p>\n

Furthermore, our rights culture, such as it is, has been based more on what might be called \u2013 to borrow a term from Christian spirituality \u2013 the \u201cvia negativa<\/em>\u201d: all things are permissible unless specifically forbidden. This may be contrasted with a culture such as the United States where rights are positively conferred and, therefore, regularly asserted through the courts.<\/p>\n

Another reason \u2013 and by no means a bad one \u2013 is Australians\u2019 natural sunny disposition to deal with such issues by an optimistic assertion of \u201cshe\u2019ll be right\u201d accompanied by the application of the universal solvent of the \u201cfair go\u201d. However, such an egalitarian outlook can only go so far when faced with the complexity and divisiveness of some of the questions which Australians are now being asked to answer.<\/p>\n

If I am right to any degree about our relative inexperience in this kind of discourse, then a book such as Prof Benson\u2019s is a valuable contribution. On the other hand, if any of us needs reminding about the importance of fundamental human rights, then Prof Adolphe\u2019s book is a timely and salutary reminder of the awful human consequences of rights being replaced by repression. As this event is taking place under the auspices of an avowedly Catholic university, I will conclude by reaching into the Catholic tradition. The most recent issue of La Civilt\u00e0 Cattolica[7]<\/strong><\/a><\/em> includes an article by Enrico Cattaneo SJ\u00a0entitled \u201cParrhesia<\/em>: Freedom of speech in early Christianity.\u201d As is explained in that article, parrhesia<\/em> is a rich idea because, quoting Foucault, \u201cparrhesia<\/em> reflects an ethical attitude in that what one has to say is said \u2018because it is both necessary and useful, as well as being true\u2019.\u201d It means a principled frankness in\u00a0speaking the truth.<\/p>\n

Fr Cattaneo SJ concludes with the observation that \u201cone of the key concepts that guides Christian parrhesia <\/em>\u2026 is that of epieikeia<\/em>, which means \u2018attention to the concrete situation\u2019 and therefore \u2018comprehension\u2019, \u2018meekness\u2019 or \u2018moderation\u2019. It relates to seeing the good that already is, and noting what is lacking or what blocks it.\u201d<\/p>\n

I imagine that many people in this room will be taking part in the debates that are to come on questions of religious freedom in this country. I hope your participation will exhibit the Christian quality of parrhesia<\/em>: frank but reasonable and respectful speech that begins by seeing the good that already is, both in our civil society and its diverse members.<\/p>\n

Prof Benson\u2019s book provides many useful ideas which should inform the national conversation. Prof Adolphe\u2019s book reminds us of how much we have to be grateful for in this country and the need for mutual respect irrespective of political, social or religious viewpoints. Both books have much to offer and I am honoured to have been given this opportunity to commend them to your attention<\/p>\n

[1]<\/a> Remarks delivered by the Hon Justice Fran\u00e7ois Kunc, a judge of the Supreme Court of NSW, on 20 October 2017 at the University of Notre Dame Australia Sydney Campus at the conclusion of the Second Annual Religious Freedom Conference \u201cFreedom of Belief Freedom of Action\u201d.<\/p>\n

[2]<\/a> I T Benson and B W Bussey (Eds), Religion, Liberty and the Jurisdictional Limits of Law, LexisNexis Canada Inc, 2017; R J Rychlak and J F Adolphe, The Persecution and Genocide of Christians in the Middle East \u2013 Prevention, Prohibition & Persecution, Angelico Press, 2017.<\/p>\n

[3]<\/a> [2017] HCA 43.<\/p>\n

[4]<\/a> (2016) 27 PLR 109.<\/p>\n

[5]<\/a> (2017) 13(2) TJR 167.<\/p>\n

[6]<\/a> [1986] 1 SCR 103.<\/p>\n

[7]<\/a> 15 October 2017, English edition, p 41 and ff<\/p>\n","protected":false},"excerpt":{"rendered":"

The following were the remarks delivered by the Hon Justice Fran\u00e7ois Kunc, a judge of the Supreme Court of New South Wales, on 20 October 2017 at the University of Notre Dame Australia Sydney Campus at the conclusion of the Second Annual Religious Freedom Conference \u201cFreedom of Belief Freedom of… More<\/a><\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ts_fic_featured_image_caption":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[137],"tags":[],"series":[],"class_list":["post-26422","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\nHon Justice Fran\u00e7ois Kunc Calls Benson\/Bussey Book "Invaluable" - CCCC Blogs<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.cccc.org\/news_blogs\/intersection\/2017\/10\/23\/hon-justice-francois-kunc-calls-bensonbussey-book-invaluable\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hon Justice Fran\u00e7ois Kunc Calls Benson\/Bussey Book "Invaluable" - CCCC Blogs\" \/>\n<meta property=\"og:description\" content=\"The following were the remarks delivered by the Hon Justice Fran\u00e7ois Kunc, a judge of the Supreme Court of New South Wales, on 20 October 2017 at the University of Notre Dame Australia Sydney Campus at the conclusion of the Second Annual Religious Freedom Conference \u201cFreedom of Belief Freedom of... 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