Vilification laws fuel disharmony

The following text is from Frank Brennan's Inaugural Occasional Address for those graduating as Masters of Social Science from the Australian College of Applied Psychology, Sydney University, on 8 May 2009.

How does a Catholic priest come to be delivering the inaugural occasional address at the ceremony to award degrees to the Australian College of Applied Psychology's first Master of Social Science graduands? It is a signal honour, but what to say?

You are the new breed of high priests who assist people come to terms with the reality, meaning and significance of suffering, death, human limitation and their inestimable human potential. You will help your clients come to terms with the other, with the abyss, and with mystery, and thus with themselves. You will take the latest psychological theories into the marketplace and into your consulting rooms.

No matter what the theories you put into practice, you will be required to give of yourselves and not just of your competence and learning. Whatever the professional boundaries imposed by your discipline you will enter into relationship with persons seeking understanding and hope in the midst of confusion and despair.

I have just read Caroline Jones' new book Through a Glass Darkly in which she reflects both on the death of her 93 year old father after eight weeks intensive medical treatment following upon heart surgery, and obliquely on the suicide of her mother 31 years earlier.

Mal McKissock one of the founders of the National Association for Loss and Grief writes in the foreword of the book: 'the most helpful thing any of us can do is to create an environment in which grieving people can feel truly understood, and safe enough to share the passionate intensity of their experience without fear of judgement or interpretation.'

He insists that by being able to distinguish passionate sadness from depression, 'there will be less need for the medicalisation of grief'.

Caroline shared her written and sometimes angry account with Dr Ray Raper who had been the head of intensive care at the hospital where her father spent his last days. Raper, expanding on McKissock's concept of 'taking it in and letting it out', suggests: 'for counsellors this is essential for maintaining their mental health and avoiding burnout. For people like me, who go through a lot of suffering with families, it is a fantastic concept. Relatives, too, need to find a way of 'letting it out'.'

When Caroline came to put pen to paper about her father's death nine years after the event, she wrote in the belief that suffering, loss and grief are facts of life for all of us. They are the raw data which confronts you applied psychologists every day of your professional lives.

Caroline recalls: 'After my mother's death, now 40 years ago, I buried my grief in relentless work. It was not until I told the story to a counsellor 12 years later that I began to find my way through the devastating loss. So, I hoped that telling the story of my father's suffering and death might help me rediscover some meaning, understanding, and equilibrium.'

For this taking it in and letting it out to occur, you will need to be great listeners.

I am presently chairing the National Human Rights Consultation Committee which is charged by government with the task of ascertaining the views of the Australian community about which rights and responsibilities matter to us as a society, asking whether these rights and responsibilities are adequately protected and promoted in contemporary Australia and how they might be better protected and promoted.

We have already received 12,000 submissions and people turn up in their hundreds to every community round table held in the capital cities and in dozens in remote country outposts. I look forward to a submission from the Australian College of Applied Psychology and from some of its newest graduates.

Many of the participants at our community roundtables are keen to affirm that Australia is one of the best countries in the world to live while at the same time urging that we could do so much better in showing respect for the dignity of all citizens including those most marginalised.

Some invoke household names like Cornelia Rau, Haneef, al Kateb, and David Hicks, urging policy changes to the Northern Territory intervention and to long term immigration detention for asylum seekers arriving on boats without visas.

Others speak more personally of the plight of their aged relatives in stretched aged care facilities, their neighbours suffering acute disability or their acquaintance who is homeless. They all want to be heard, respectfully. One of the truly heartening aspects of the community consultations has been the respect shown to speakers who hold diametrically opposed views.

Can lawyers or the law do more to protect the human rights of these people? Or are their rights and entitlements best protected by more comprehensive social policy committed to social inclusion and more taxpayers funds being available for accountable, transparent service delivery?

Some of the strongest pleas at our community consultations have come from citizens disturbed by their forced medication for psychiatric conditions which they dispute.

Many of the complaints we hear at the community roundtables are irremediable. There is little or nothing we can do to change the situation. There is no magic in a bill of rights. How do we enhance people's understanding and hope in the face of unchangeable odds?

In his most recent novel Ransom, David Malouf wrestles with those things which cannot be changed or which are very unlikely to be changed by the human subject — enhancing the acceptance of same; and those things which can be changed or done differently if only we dare.

The king Priam feels absolutely powerless and humiliated, watching from the fortressed walls of the doomed Troy as Achilles drags the corpse of his son Hector through the dust day after day. Priam decides to cast aside all regal regalia and to seek to pay a handsome ransom for the return of his son's body.

Priam's family and closest advisers try to convince him not to go ahead with such a daft plan. The wise Trojan Polydanus says to him:

'I beg you, spare yourself this ordeal. Do not, for the affection we all bear you, expose yourself to the hazards of war and of the road, or to the indignities that Achilles and any other Greek who happens along may heap upon you. Be kind to your old age. Relieve yourself of this unnecessary task.'

Priam is resolute in his purpose:

'I cannot stop what may be about to occur. That I leave, as I must, to the gods. If the last thing that happens to me is to be hunted down in the heart of my citadel, and dragged out by the feet, and shamelessly stripped and humiliated, so be it. But I do not want that to be the one sad image of me that endures in the minds of men. The image I mean to leave is a living one. Of something so new and unheard of that when men speak my name it will stand forever as proof of what I was. An act, in these terrible days, that even an old man can perform, that only an old man dare perform, of whom nothing now can be expected of noise and youthful swagger. Who can go humbly, as a father and as a man, to his son's killer, and ask in the gods' name, and in their sight, to be given back the body of his dead son. Lest the honour of all men be trampled in the dust.'

Priam dresses simply, leaves the fortressed Troy and travels with the peasant Somax and his two mules pulling a primitive unadorned cart with the ransom. When he comes face to face with Achilles, the killer of his son, Priam says:

'Do you think I ever imagined, when I was a young man as you are now, in the pride and vigour of my youth, that I would in old age come to this? To stand, as I do now, undefended before you, and with no sign about me of my royal dignity, begging you, Achilles — as a father, and as one poor mortal to another — to accept the ransom I bring and give me back the body of my son. Not because these cups and other trifles are a proper equivalent — how could they be — or for any value you may set upon them. But because it does high honour to both of us to act as our fathers and forefathers have done through all the ages and show that we are men, children of the gods, not ravening beasts. I beg you, ask no more of me. Accept the ransom and let me gather up at last what is left my son.'

And so he does, and so we remember him thousands of years on — the father and king who dared to do something new and unheard of, drawing on and invoking all that was noblest in his traditions and in the depths of the human heart.

As you contemplate in your own lives and in the lives of your clients those things which are abiding and those which are peripheral and perfunctory, do not be too readily dismissive of the religious and cultural instincts and practices. It is very fashionable in the Australian academy to be dismissive of religion. But do concede there are experienced intelligent people of a religious disposition, just as there are experienced intelligent people who have no need nor desire for the religious sentiment.

I concluded my recent book Acting on Conscience with a recollection of a mass celebrated in the Dili Cathedral in 2001 by Nobel Peace Prize Winner Bishop Belo. As Director of the Jesuit Refugee Service, I was working in East Timor at the time and I accompanied Bishop Belo at the mass which was offered in thanks for the contribution by the departing Australian INTERFET forces.

At the end of the mass, Major General Peter Cosgrove spoke. The burly Australian commander was accompanied by a translator who was a petite Timorese religious sister in her pure white habit, replete with veil. Before them was the usual international media scrum which accompanies such events in countries overrun by the UN and international NGOs.

Cosgrove recalled his first visit to the cathedral three months earlier when he was so moved by the singing that he realised two things: the people of East Timor had not abandoned their God, and God had not abandoned the people of East Timor.

His words surprised me, and I knew that this speech would not be reported back in Australia. We don't do religion in public this way. It was unimaginable that an Australian military leader would give such a speech back in Australia. If he were a US General, we would expect it. As I said in Acting on Conscience:

'Here in Australia, the public silence about things religious does not mean that religion does not animate and inspire many of us. It just has a less acknowledged place in the public forum. It marks its presence by the reverence of the silence. That is why we Australians need to be so attentive to keeping politics and religion in place. Each has its place and each must be kept in place for the good of us all, and for the good of our Commonwealth.'

Many citizens wanting to contribute to the shaping of law, public policy, and conversation in the public square come to the task with their own comprehensive world view. For some, that view is shaped not just by their culture and intellectual peers but also by their religious tradition and beliefs. Just because they do not often talk about such tradition and beliefs outside their own circle of family and friends does not mean that these tradition and beliefs are left at home once the individual steps into the public square.

Since 11 September 2001, Australians have displayed an increased sensitivity to the demands of Muslim Australians that their perspective on pressing social and political questions be heeded. There has been spirtied debate in the Australian community about the need for religious vilification laws to protect Muslims from uninformed attack by Christain fundamentalists.

At some of our community consultations, we have heard individuals, even church leaders, expressing concern that a national charter of rights might entail a national religious vilification law similar to that in Victoria. The Victorian law provides:

'A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.'

In my view, the application of the Victorian religious vilification law has hindered rather than helped religious and social harmony. The Catch the Fire litigation in Victoria has placed a permanent cloud over the utility of all religious vilification laws in Australia.

I have long thought these laws cannot be administered with sufficient transparency and neutrality. For example, no one would envisage a State authority pursuing an atheist public commentator for whipping up undue ridicule or revulsion of Christianity — though such behaviour is not unknown in our media or in our parliaments.

Even if one were to accept the utility and desirability of racial vilification laws, there is a strong case for stopping short of religious vilification laws or for at least enacting such laws only for criminal prosecution at the behest of the Attorney General.

While it is inherently racist for a person to claim membership of the best race, it is no bad thing for a religious person to claim membership of the one true religion. That is the very point of religious belief. That is what religious people do.

Within the great religious traditions, there are strands which urge universal respect and love for all persons regardless of their religious affiliation. But the State overreaches itself when it adapts laws prohibiting vilification on the grounds of a physical characteristic premised on absolute equality of all persons regardless of that physical characteristic to laws prohibiting vilification on the grounds of religious belief when there is no necessary presumption by believers that all religions are equally good and true.

How are officers of the secular state to determine the limits on robust criticism of religion? How is a state official to decide which evangelist warrants State investigation? How is a state official to distinguish the evangelist who justifiably causes fellow believers to revile or ridicule fanatical practitioners of another religion who preach discrimination, violence or even death in God's name, from the evangelist who unjustifiably invites revulsion or ridicule of practitioners of another religion who are to be respected regardless of the errancy of their beliefs or the potential of their beliefs to be misconstrued by others for hateful or destructive purposes?

Even if there be strong religious tensions in a multicultural society, those tensions will not be resolved and the adverse effects of the tensions will not be avoided by laws which can be administered by the State arranging for religious practitioners to report on each other, with State tribunals then attempting to arbitrate what is a reasonable portrayal of one religion by the believers of another. There are some places the law should not tread.

At the very least there is room for credible argument that religious vilification laws unduly interfere with the right to freedom of expression and the right to freedom of conscience, religion and belief — and well beyond what can be demonstrably justified in a free and democratic society.

It is very doubtful that the broad Victorian religious vilification law permitting Catch the Fire type litigation would be passed by a Parliament constrained by a legislative human rights act.

While there are citizens of diverse religious beliefs in a democratic state, there will always be a place for diverse religious arguments and positions in the public forum. Like their fellow citizens they should be free to advocate peacefully their preferred policy positions as competently or foolishly as they are able or as they wish.

They should have confidence that the separation of powers ensures that their own legitimate interests are not overridden by local populist pressures. They should expect to gain little from seeking application of overbroad religious vilification laws which may turn out to be counterproductive.

In time they will win the same acceptance and security within the nation state as my Irish Catholic forbears came to enjoy in what many still consider the most godless place under heaven.

I congratulate you all on your graduation, and commend those who have helped you come to this day. Some of them are here with you in this splendid hall. Most of you will now go on to careers in counselling often helping disadvantaged groups in our community.

As you apply your psychological skills and insights, may you be respectful of the diverse religious and cultural traditions of those for whom you care. May you assist those at life changing moments in 'taking it in and letting it out', and may you be open to the truly new and transcendent emanating from the old and the mortal, acknowledging the rich traditions of our forebears, showing that we are human beings with the sometimes dreadful and sometimes ennobling gift of consciousness of mortality, being neither beasts nor gods.

Lest the honour of any of us be trampled in the dust, let us respect the rights and dignity of all.

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University, and Chair of the National Human Rights Consultation. 



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Existing comments

Thank you for your reasoned address.

Re the enforced medication of some persons who are mentally ill: my son has schizophrenia. A tragic part of this devastating disease is that some patients never gain what is known as 'insight' - that is, they can never accept the fact that they are ill, and need help. Without medication my son was reduced to living under a bush in a park and eating out of bins; having come to believe that all his family were dead. He was incapable of accessing social security. His mind was tormented by ugly and fearsome delusions. Compulsory medication finds him - a few weeks later; dressed and clean, living with family members, his memory restored and his health improving daily. Once again, we can laugh together. Yet he resents being medicated, for in his mind he was never ill. And if permitted, he will go off the medication, as has happened already 3 times; resulting in gradual remission and his disapearance into excruciating poverty and homelessness, sometimes for years, until the family locate him again, and recommences the whole procedure.

Judge for yourself. In every case, there are exceptions to the rule. Which is the greater personal 'right'? Freedom of refusal, or health?
P Clift | 12 May 2009

I feel that we should have our original rights and that this bill takes away the right for us as human being and as organisation we should be left alone to choose the people we want to work for us. We will not permit this bill to pass in our parliament because it takes away our rights and good judgement as independent Australians.
JAMES MUDZIKITIRI | 19 November 2009


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