Israel Folau: appeals to conscience cut both ways
Israel Folau’s now infamous post in which he called on a range of “sinners” to repent, turn to Jesus Christ and thus be saved from an eternity in Hell has had more consequences than I suspect he anticipated.
It has led to his loss of employment. It has elevated his status to that of a champion for conservative Christian beliefs.
Finally, it has prompted widespread debate about the intersection between religious belief and the world of work.
It is this last issue that deserves further discussion.
Religious freedom comes in four basic forms: freedom of belief, freedom of worship, freedom to act in good conscience (which includes freedom from coercion in matters of religion) and finally freedom to proselytise (which includes the right to educate one’s children in the faith). Folau’s case involves the third and fourth of these freedoms.
What Folau believes and how he worships have not been challenged. Rather, he has been sanctioned for what he has done and said — not as a believer, but in his role as an elite rugby player representing Australia. However, can the two roles of “believer” and “contracted player” be so easily separated? That is the question at the heart of this issue.
What are Folau’s rights?
As a committed Christian, Folau obviously feels compelled to act on his beliefs — in this case by posting tweets and instagram posts directed at those who risk damnation. Within his world view, he is simply following the scriptural injunction to: “Go into all the world and proclaim the gospel to the whole creation. Whoever believes and is baptised will be saved, but whoever does not believe will be condemned.” (Mark16:15)
So, we might ask if it is right and proper that a person of such sincere religious beliefs has lost his job and been denied at least one platform for fundraising to defend his interests before the courts.
As a general rule, there is only one group of employers — faith groups — who claim a right to dismiss people from employment because of their religious beliefs. For example, a number of religious organisations have argued that their schools should be allowed to deny employment to otherwise competent people who do not practise their religion. It follows from this that employees who renounce the faith of the school would be open to dismissal.
No other employer may discriminate against a person based on their religious beliefs. So, given that rugby is not a religion (despite what some claim), how did Folau come to lose his lucrative employment — a risk that is now faced by his wife, Maria Folau, one of Australasia’s preeminent netball athletes and a Christian who supports her husband’s views?
Brands have a right to protect their interests
In order to broaden the debate, let’s consider the case of a Christian who believes that the Pope is the Antichrist and that Roman Catholics are all destined for Hell. Such views are not “hypothetical”. They were openly held by the Northern Ireland religious and political leader, the Reverend Ian Paisley.
In 1958, he condemned Princess Margaret and the Queen Mother for “committing spiritual fornication and adultery with the Antichrist” after they met with Pope John XXIII. Thirty years later, Paisley denounced Pope John Paul II as the Antichrist — to his face — while the latter addressed the European Union Parliament.
Now suppose an employee is of a mind similar to Paisley — so publishes a tweet attacking the head of the Catholic Church and all of its adherents in equivalent terms. Suppose the employee does so on the basis of what he considers to be a well-founded and sincere religious belief. However, in this case, it’s not just a vulnerable minority group who’s affected — but more than a billion Roman Catholics and their immensely wealthy and powerful church.
Let’s suppose that the “Paisleyite” employee is a prominent brand ambassador working for a major bank. After the tweet, all hell breaks loose. Upset employees threaten to resign, customers threaten to close their accounts, investors begin to dump the stock, etc.
Would an employer be justified in calling such a person to account? Or should the bank respect the expression of sincere, religious belief and defend the right of the brand ambassador to express such views — no matter what damage is done?
It seems reasonable that employers be free to take steps to protect themselves from the kind of strategic risk caused by well-intentioned, loose cannons like the hypothetical brand ambassador sketched above.
This should allow employers to put in place measures designed to protect their interests — and then ask their employees to act accordingly.
Employees have a right to choose too
There is an important point to be noted here. The employer has a right to define how its interests are to be protected. However, it falls to the employee to accept (or not) the relevant conditions of employment.
Any person who truly feels unable to accept those conditions should either not accept an offer of employment or if already part of the organisation, then they should consider resigning in order to find a place of employment better aligned with their moral compass.
This brings us back to the ethical core of the problem raised by the Folau case. Is it ever right for an employer to demand that an employee leave their conscience at the door? I think that the answer is no.
However, if the conscience of an employee should be respected, then so should that of the employer. No individual or organisation is required to be complicit in conduct that it sincerely believes to be wrong.
This is the ground on which Rugby Australia and GoFundMe have both stood. They have decided not to enable the propagation of views that they hold to be ethically objectionable. Rugby Australia’s employment of Folau as one of Australia’s elite sportsmen afforded him (and his views about sin) a prominence that others do not enjoy. They have denied him access to the platform they had provided to him.
Folau was never just a player. He has always been, in part, a brand ambassador. GoFundMe denied Folau its platform after he allegedly violated its terms of service.
Folau chose religion
What both sides of this debate need to consider are the requirements for even-handedness and proportionality. Those who act in the name of conscience — employees and employers — need to be sincere. They need to protect their position with the minimal restrictions necessary. They need to be even-handed — treating like issues and persons in a like manner. And they need to accept the reasonable consequences of their actions.
Folau must have known that labelling homosexuals (among others) as sinners destined for Hell would be incendiary — and risk damaging Rugby Australia.
After all, this was not the first time he had been vocal in his views. In the end, his choice was between what he understood to be his duty to his employer and what he understood to be his duty to his God. Folau chose to put his religion first.
Conscience is not a convenient friend. It often comes with consequences; some good, some ill.
Neither Rugby Australia nor GoFundMe has silenced Folau. He is still acting and speaking in accordance with his religious beliefs. He is still able to raise funds for his defence — as demonstrated by the swift offer of support provided by the Australian Christian Lobby. Folau still has a public platform — which he continues to utilise, as is his right.
Kicked out of the temple, Israel Folau remains free to preach in the public square.
Dr Simon Longstaff originally wrote this piece for ABC News. Photo credit: David Molloy
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
After Christchurch
What is to be said about the murder of innocents?
That the ends never justify the means? That no religion or ideology transmutes evil into good? That the victims are never to blame? That despicable, cowardly violence is as much the product of reason as it is of madness?
What is to be said?
Sometimes… mute, sorrowful silence must suffice. Sometimes… words fail and philosophy has nothing to add to our intuitive, gut-wrenching response to unspeakable horror.
Thus, we bow our heads in silence… to honour the dead, to console the living, to be as one for the sake of others.
In that silence… what is to be said?
Nothing.
Yet, I feel compelled to speak. To offer some glimmer of insight that might hold off the dark — the dark shades of vengeance, the dark tides of despair, the dark pools of resignation.
So, I offer this. Even in the midst of the greatest evil there are people who deny its power. They are rare individuals who perform ‘redemptive’ acts that affirm what we could be. Some call them saints or heroes. They are both and neither. They are ordinary people who act with pure altruism – solely for the sake of others, with nothing to gain.
One such person is with me every day. The Polish doctor and children’s author, Janusz Korczak, cared for orphaned Jewish children confined to the Warsaw Ghetto. At last, the time came when the children were to be transported to their place of extermination. Korczak led his children to the railway station — but was stopped along the way by German officers. Despite being a Jew, Korczak was so revered as to be offered safe passage.
To choose life, all he need do was abandon the children. At the height of the Nazi ascendancy, Korczak had no reason to think that he would be remembered for a heroic but futile death. He had nothing to gain. Yet, he remained with the children and with them went to his death. He did so for their sake — and none other. In that decision, he redeemed all humanity — because what he showed is the other face of our being, the face that repudiates the murderer, the terrorist, the racist…the likes of Brenton Tarrant.
I know that many people do not believe in altruism. They will offer all manner of reasons to explain it away, finding knotholes of self-interest that deny the nobility of Janusz Korczak’s final act. They are wrong. I have seen enough of the world to know that pure acts of altruism are rare — but real. And it only takes one such act to speak to us of our better selves.
We will never know precisely what happened in those mosques targeted in Christchurch. However, I believe that, in the midst of the terror, there were people who performed acts of bravery, born out of altruism, of a kind that should inspire and ultimately comfort us all.
Most of these stories will be untold — lost to the silence. Of a few, we may hear faint whispers. But believe me, the acts behind those stories are every bit as real as the savagery they confronted and confounded. And even when whispered, they are more powerful.
Evil born of hate can never prevail. It offers nothing and consumes all — eventually eating its own. That is why good born of love must win the ultimate victory. Where hate takes, love gives — ensuring that, in the end, even a morsel of good will tip the balance.
You might say to me that this is not philosophy. Where is the crisp edge of logic? Where is the disinterested and dispassionate voice of reason? Today, that voice is silent. Yet, I hope you can hear the truth all the same.
Dr Simon Longstaff AO is Executive Director of The Ethics Centre.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Blockchain: Some ethical considerations
The development and application of blockchain technologies gives rise to two major ethical issues to do with:
- Meeting expectations – in terms of security, privacy, efficiency and the integrity of the system, and
- The need to avoid the inadvertent facilitation of unconscionable conduct: crime and oppressive conduct that would otherwise be offset by a mediating institution
Neither issue is unique to blockchain. Neither is likely to be fatal to its application. However, both involve considerable risks if not anticipated and proactively addressed.
At the core of blockchain technology lies the operation of a distributed ledger in which multiple nodes independently record and verify changes on the block. Those changes can signify anything – a change in ownership, an advance in understanding or consensus, an exchange of information. That is, the coding of the blockchain is independent and ‘symbolic’ of a change in a separate and distinct real-world artefact (a physical object, a social fact – such as an agreement, a state of affairs, etc.).
The potential power of blockchain technology lies in a form of distribution associated with a technically valid equivalent of ‘intersubjective agreement’. Just as in language the meaning of a word remains stable because the agreement of multiple users of that word, so blockchain ‘democratises’ agreement that a certain state of affairs exists. Prior to the evolution of blockchain, the process of verification was undertaken by one (or a few) sources of authority – exchanges and the like. They were the equivalent of the old mainframe computers that formerly dominated the computing landscape until challenged by PC enabled by the internet and world wide web.
Blockchain promises greater efficiency (perhaps), security, privacy and integrity by removing the risk (and friction) that arises out of dependence on just one or a few nodes of authority. Indeed, at least some of the appeal of blockchain is its essentially ‘anti-authoritarian’ character.
However, the first ethical risk to be managed by blockchain advocates is that they not over-hype the technology’s potential and then over-promise in terms of what it can deliver. The risk of doing either can be seen at work in an analogous field – that of medical research. Scientists and technologists often feel compelled to announce ‘breakthroughs’ that, on closer inspection, barely merit that description. Money, ego, peer group pressure – these and other factors contribute to the tendency for the ‘new’ to claim more than can be delivered.
“However, the first ethical risk to be managed by blockchain advocates is that they not over-hype the technology’s potential and then over-promise in terms of what it can deliver.”
It’s not just that this can lead to disappointment – very real harm can befall the gullible. One can foresee an indeterminate period of time during which the potential of blockchain is out of step with what is technically possible. It all depends on the scope of blockchain’s ambitions – and the ability of the distributed architecture to maintain the communications and processing power needed to manage and process an explosion in blockchain related information.
Yet, this is the lesser of blockchain’s two major ethical challenges. The greater problem arises in conditions of asymmetry of power (bargaining power, information, kinetic force, etc.) – where blockchain might enable ‘transactions’ that are the product of force, fear and fraud. All three ‘evils’ destroy the efficiency of free markets – and from an ethical point of view, that is the least of the problems.
“The greater problem arises in conditions of asymmetry of power (bargaining power, information, kinetic force, etc.) – where blockchain might enable ‘transactions’ that are the product of force, fear and fraud.”
One advantage of mediating institutions is that they can provide a measure of supervision intended to identify and constrain the misuse of markets. They can limit exploitation or the use of systems for criminal or anti-social activity. The ‘dark web’ shows what can happen when there is no mediation. Libertarians applaud the degree of freedom it accords. However, others are justifiably concerned by the facilitation of conduct that violates the fundamental norms on which any functional society must be based. It is instructive that crypto-currencies (based on blockchain) are the media of exchange in the rankest regions of the dark web.
So, how do the designers and developers of blockchain avoid becoming complicit in evil? Can they do better than existing mediating institutions? May they ‘wash their hands’ even when their tools are used in the worst of human deeds?
This article was first published here. Dr Simon Longstaff presented at The ADC Global Blockchain Summit in Adelaide on Monday 18 March on the issue of trust and the preservation of ethics in the transition to a digital world.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
How will we teach the robots to behave themselves?
The era of artificial intelligence (AI) is upon us. On one hand it is heralded as the technology that will reshape society, making many of our occupations redundant.
On the other, it’s talked about as the solution that will unlock an unfathomable level of processing efficiency, giving rise to widespread societal benefits and enhanced intellectual opportunity for our workforce.
Either way, one thing is clear – AI has an ability to deliver insights and knowledge at a velocity that would be impossible for humans to match and it’s altering the fabric of our societies.
The impact that comes with this wave of change is remarkable. For example, IBM Watson has been used for early detection of melanoma, something very close to home considering Australians and New Zealanders have the highest rates of skin cancer in the world. Watson’s diagnostic capacity exceeds that of most (if not all) human doctors.
Technologists in the AI space around the world are breaking new ground weekly – that is an exciting testament to humankind’s ability. In addition to advancements in healthcare, 2018 included milestones in AI being used for autonomous vehicles, with the Australian government announcing the creation of a new national office for future transport technologies in October.
However, the power to innovate creates proportionately equal risk and opportunity – technology with the power to do good can, in almost every case, be applied for bad. And in 2019 we must move this conversation from an interesting dinner-party conversation to a central debate in businesses, government and society.
AI is a major area of ethical risk. It is being driven by technological design processes that are mostly void of robust ethical consideration – a concern that should be the top of the agenda for all of us. When technical mastery of any kind is divorced from ethical restraint the result is tyranny.
The knowledge that’s generated by AI will only ever be the cold logic of the machine. It lacks the nuanced judgment that humans have. Unless AI’s great processing power is met and matched with an equal degree of ethical restraint, the good it creates is not only lost but potentially damaging.The lesson we need to learn is this: just because we can do something doesn’t mean that we should.
Ethical knowledge
As citizens, our priority must be to ensure that AI works in the interests of the many rather than the few.
Currently, we’re naively assuming that the AI coders and developers have the ethical knowledge, understanding and skills to navigate the challenges that their technological innovations create.
In these circumstances, sound ethical judgment is just as important a skill as the ability to code effectively. It is a skill that must be learned, practised and deployed. Yet, very little ethical progress or development has been made in the curriculum to inform the design and development of AI.
This is a “human challenge” not a “technology challenge”. The role of people is only becoming more important in the era of AI. We must invest in teaching ethics as applied to technological innovation.
Building a platform of trust
In Australia, trust is at an all-time low because the ethical infrastructure of our society is largely damaged – from politics to sport to religious institutions to business. Trust is created when values and principles are explicitly integrated into the foundations of what is being designed and built. Whatever AI solution is developed and deployed, ethics must be at the core – consciously built into the solutions themselves, not added as an afterthought.
Creating an ethical technologically advanced culture requires proactive and intentional collaboration from those who participate in society: academia, businesses and governments. Although we’re seeing some positive early signs, such as the forums that IBM is creating to bring stakeholders from these communities together to debate and collaborate on this issue, we need much more of the same – all driven by an increased sense of urgency.
To ensure responsible stewardship is at the centre of the AI era, we need to deploy a framework that encourages creativity and supports innovation, while holding people accountable.
This story first appeared on Australian Financial Review – republished with permission.
BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Banking royal commission: The world of loopholes has ended
Following the release of Commissioner Hayne’s royal commission final report on the banking and financial services sector, our Executive Director shares his take on the findings for the Australian Financial Review.
The Final Report of the Hayne Royal Commission is both unsparing and inspired.
Mr Hayne casts a wide net in his analysis of what went wrong in Australia’s banking and finance industry. However, there is one group on whom he pins ultimate accountability; the boards and senior executives of the entities whom he found to be at fault, “Nothing that is said in this Report should be understood as diminishing that responsibility. Everything that is said in this Report is to be understood in the light of that one undeniable fact …”
That is the unsparing part of the Report.
Kenneth Hayne is inspired in his injunction to all Australian business that it must apply some underlying principles, “These norms of conduct are fundamental precepts. Each is well-established, widely accepted, and easily understood.”
- Obey the law;
- Do not mislead or deceive;
- Act fairly;
- Provide services that are fit for purpose;
- Deliver services with reasonable care and skill; and
- When acting for another, act in the best interests of that other.
A dominant theme in Mr Hayne’s final report is that it is time to eliminate the law’s own exceptions to these principles – a series of ‘loopholes’ – often the product of political convenience – that allow the underlying principles to be violated by those with the wit, means and licence to do so.
There is a subtle quality to Mr Hayne’s arguments on this point. At no time does he suggest that ethical commitments should be elevated above compliance with the law. Indeed, he is clear that he opposes that approach. However, he makes it clear that the Law must conform with ethics – in the form of ‘underlying principle’.
The implications of this for the targets of his harshest criticism – boards and senior executives – are profound. For too long, it has been possible to ease through a loophole and take comfort from the fact that questionable (and profitable) conduct was ‘strictly legal’. That approach has cost us all dearly.
The fact that a loophole was available to be exploited does not mean that it should have been. The capacity to exercise ethical restraint (not to do everything that is possible) was always latent within the ranks of boards and senior management.
To be fair, we should acknowledge that boards and senior management have often exercised that capacity. We will never know (and credit will never be given) for the many cases of good judgement that have prevailed. Unfortunately, in the current environment, a multitude of good decisions counts for little when compared to the relatively few, but emblematic, cases of ethical failure – some of which may also have been unlawful.
Ethical failure occurs when core purposes, values and principles are betrayed. On some occasions this is done in a knowing and deliberate manner. More often, the cause is a failure of culture and governance (both intimately linked) that leads an organisation to ‘sleep walk’ into an ethical ‘death pit’.
Recognising this, Commissioner Hayne recommends that:
All financial services entities should, as often as reasonably possible, take proper steps to:
- Assess the entity’s culture and its governance
- Identify any problems with that culture and governance
- Deal with those problems, and
- Determine whether the changes it has made have been effective
In doing so, Hayne supports and extends the approach already adopted by APRA and ASIC by looking beyond ‘risk culture’ to evaluate the whole.
The Ethics Centre is a pioneer in the development and application of world-class tools for undertaking precisely the kind of evaluation being recommended by Hayne. This approach should not be limited to banking and financial services. It is essential for all organisations – whether in the private or public sectors.
The trouble is that boards and senior managers are often deeply reluctant to look into a well-polished mirror that reveals the truth about their organisation. Instead, they look to those who offer a ‘magic mirror’ that always reflects the comforting myth that you are the ‘fairest of them all’. It takes a certain kind of moral courage to ask for the truth. Perhaps Kenneth Hayne has strengthened the sinews of corporate Australia.
We will see!
Australia was one of the first countries to develop an ethical framework for banking and finance. The Banking + Finance Oath was created in the aftermath of the global financial crisis – at a time when all seemed to be relatively rosy on the domestic front.
The great disappointment was that so few people took up the opportunity to commit to the ‘underlying principles’ on which the BFO is based. Perhaps too many people saw that reality fell too short of the ideal.
If ever there was a time to make something better, it is now. In the wake of the Hayne royal commission, it is time for the ethical majority, working within banking and finance, to step up. Whatever your role or seniority – it’s time to own what is noble in the aims of banking and finance and to give life to its ideals.
Embrace underlying principle, measure and achieve alignment, exercise ethical restraint, regain trust. Do so in the expectation of profit and to earn that most elusive of rewards: a good name.
That is the opportunity that lies latent in the recommendations of the Hayne Report.
Dr Simon Longstaff is executive director of The Ethics Centre
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
The danger of a single view
There are times in the history of every nation when its character is tested and defined. Too often it happens with war, natural disasters or economic collapse. Then the shouting gets our attention.
But there are also our quieter moments – the ones that reveal solid truths about who we are and what we stand for. We are in one of those moments right now.
How should we recognise Indigenous Australians? Can our economy be repaired in an even-handed manner? How will we choose if forced to decide between China and the United States? How do we create safe ways for people seeking asylum? Can we grow our economy and protect our people and environments? These are just some of the questions we face.
And here’s another question. Do we have the capacity to talk about these things without tearing ourselves and each other apart? There are some safe places for open conversation about difficult questions. Twenty five years ago I began work at The Ethics Centre, a not-for-profit dedicated to creating such questions.
The Festival of Dangerous Ideas is one such place. This weekend, 1400 Sydneysiders will gather at the Festival of Dangerous Ideas – in a brand new home on Cockatoo Island – to explore different views and perspectives on issues surrounding truth, trust and the battle of polarities in our society.
Why host a festival to explore dangerous ideas?
Sadly, there is a growing ‘fragility’ across Australian society. The demand for crystalline ideological purity (you’re completely ‘with us’ or ‘against us’) puts us at risk of a fractured and stuffy world of absolutes.
Too often, I see conversations shut down before they have even begun. People with a contrary point of view are faced with outrage, shouted down or silenced by others driven by the certainty of righteous indignation. In such a world, there is no nuance, no seeking to understand the grey areas or subtleties of argument.
“Attempts to prove to people that they are wrong just leads to stalemate. Barricades go up and each side lobs verbal ‘grenades’. There is another way. “
This phenomenon crosses the political spectrum – embracing ‘conservatives’ and ‘progressives’ alike. In my opinion, it is the product of a self-fulfilling fear that our society’s ‘ethical skin’ is too thin to survive the prick of controversy and debate. This is a poisonous belief that drains the life from a liberal democracy.
Fortunately, the antidote is easily at hand. In essence we need to spend less time trying to change other people’s minds and more in trying to understand their point of view – by taking them entirely seriously.
Why make this change? Because attempts to prove to people that they are wrong just leads to stalemate. Barricades go up and each side lobs verbal ‘grenades’. There is another way. We could allow people to work out what the boundaries are for their own beliefs. Working out the lines we cannot cross is often the first step towards others and can only happen constructively when people feel safe. Giving people the space to fall on just the right side of such lines can make a world of difference.
So I wonder, might we pause for a moment, climb down from our battle stations and call a cease-fire in the wars of ideas? Might we recognise the person on the other side of an issue may not be unprincipled? Perhaps they’re just differently principled. Can we see in the face of our ideological opponent another person of good will? What then might we discover about each other; what unites and what divides? What then might we understand about the issues that will define us as a people?
Let’s rediscover the art of difficult discussions in which success is measured in the combination of passion and respect. Let’s banish the bullies – even those who claim to be ‘well-intentioned’. They have no place in the conversations we now need to have.
Follow the #FODI conversation on Twitter, and keep an eye on our Instagram for on the ground action at The Festival of Dangerous Ideas.
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You might be interested in…
BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
When human rights complicate religious freedom and secular law
As the Commonwealth Government ponders its response to the Ruddock Religious Freedom Review, it’s worth considering what people of faith may be seeking to preserve and what limits society might justifiably seek to impose.
The term ‘religious freedom’ encompasses a number of distinct but related ideas. At the core, it’s freedom of belief – in a god, gods or a higher realm or being.
Many religions make absolute (and often mutually exclusive) claims to truth, most of which cannot be proven. Religions rely, instead, on acts of faith. Next comes freedom of worship – the freedom to perform, unhindered, the rituals of one’s faith. Then there is the freedom to act in good conscience – to give effect to one’s religious belief in the course of one’s daily life and, as a corollary, not to be forced to act in a manner that would violate one’s sacred obligations. Finally, there is the freedom to proselytise – to teach the tenets of one’s religion to the faithful and to those who might be persuaded.
In a secular, liberal democracy the four types of religious freedom outlined above – to believe, to worship, to act and to proselytise – attract different degrees of liberty. For example, people are generally free to believe whatever takes their fancy, no matter how ill-founded or bizarre. This is not so in all societies. Some theocracies will punish ‘heretics’ for holding unorthodox beliefs. Acting out of belief – in worship, deeds and proselytising – is often subject to some measure of restraint. For example, pious folk are not permitted to set up a pulpit (or equivalent) in the middle of a main road. They are not permitted to beat a woman, even if the teaching of their religion allows (or requires) her chastisement. They are not permitted to let a child die because of a religious objection to life-saving medical procedures. Nor are they able to teach that some people are ‘lesser beings’, lacking intrinsic dignity, simply because of their gender, sexuality, culture, religion, and so on. In other words, there are boundaries set for the expression of religious belief, whatever those beliefs might be.
It is precisely the setting of such ‘boundaries’ that has become a point of contention. Some Australian religious leaders claim they should be exempt from the application of Australian laws that they do not approve, like anti-discrimination legislation. This is nothing new. As it happens, in Australia, a number of religions have long denied the validity of secular law, even to the extent of running parallel legal systems.
The Roman Catholic Church regularly applies Canon Law in cases involving the status of divorcees, the sanctity of the confessional, and so on. The Government of Australia might recognise divorce, but the Church does not. The following text is taken from the official website of the Archdiocese of Sydney: A divorce is a civil act that claims to dissolve a valid marriage. From a civil legal perspective, a marriage existed and was then dissolved. The Catholic Church … does not recognise the ability of the State to dissolve a marriage. An annulment, on the other hand, is an official declaration by a Church Tribunal that what appeared to be a valid marriage was actually not one (i.e, that the marriage was in fact invalid) [my emphasis].
In a similar vein, the Jewish community maintains a separate legal system that oversees the application of Halakhic Law through the operation of special Jewish religious courts called Beth Din. Given the precedents set by Christians and Jews, it’s not surprising that adherents of other faith groups, notably Muslims, are seeking the same rights to apply religious laws within their own courts and to enjoy exemptions from the application of the secular law.
“Fundamental human rights come as a ‘bundle’. They are indivisible.”
Given all of the above, are there any principles that we might draw on when setting the boundaries to religious freedom?
Human rights
Fortunately, the proponents of freedom of religion have provided an excellent starting point for answering this question. It begins with the core of their argument – that freedom of belief (religion) is a fundamental human right. Their claim is well founded. However, those who invoke fundamental human rights cannot ‘cherry pick’ amongst those rights, only defending those that suit their preferences.
Fundamental human rights come as a ‘bundle’. They are indivisible. It follows from this that if people of faith are to assert their claim to religious freedom as a fundamental human right, then the exercise of that freedom should be consistent with the realisation of all other fundamental human rights. Religious freedom is but one. It follows from this that any legislative instrument designed to create a legal right to freedom of religion must circumscribe that right to the extent necessary to ensure that other human rights are not curtailed. For example, a legal right to religious freedom should not authorise violence against another person. Nor should it permit discrimination of a kind that would otherwise be considered unlawful under human rights legislation.
If there is to be Commonwealth legislation, then it should establish an unrestricted right of belief and a rebuttable presumption in favour of acting on those beliefs. The limits to action should be that the conduct (either by word or deed): does not constrain the liberty of another person, does not subject another person to any form of violence, does not deny the intrinsic dignity of another person and does not violate the human rights of another person. Finally, it is essential that as a liberal democracy any Australian legislation specify that the tenets of a religion only apply to those who have freely consented to adopt that religion.
So, what might this look like in practice – say, in relation to same sex marriage now that it is lawful?
Baking cakes
Nobody should be compelled to believe that same sex marriage is ‘moral’. That is a matter of personal belief unrelated to the law. Second, it should be permissible to teach, to members of one’s faith group, and to advocate, more generally, that same sex marriage is immoral (a view I do not hold). The fact that something is legal leaves open the question of its morality. Third, no person should be required to perform a marriage if to do so would violate the dictates of their conscience. Roman Catholic priests refuse to marry heterosexual divorcees. Such marriages are allowed by the state – yet no priest is forced to perform such a marriage because to do so would make them directly complicit is an act their religion forbids. Such an allowance should only extend to those at risk of becoming directly complicit in objectionable acts. For example, such an allowance should not be granted to a religious baker not wanting to provide a wedding cake to a gay couple. Cakes play no direct role in the formalities of a civil marriage. So, unlike a pharmaceutical company that might justifiably object to becoming complicit through the supply of drugs to an executioner, a baker is never going to be complicit in the performance of a marriage. As such, a baker should be bound by law to supply his or her goods on a non-discriminatory basis. Of course, there will always be some who feel obliged to put the requirements of their religion before the law.
To act according to one’s conscience in an honourable choice. But only do this if you are willing to bear the penalty.
Dr Simon Longstaff is Executive Director of The Ethics Centre: www.ethics.org.au
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Free markets must beware creeping breakdown in legitimacy
This article was written for, and first published on the Australian Financial Review.
This much we know: a blistering series of scandals has led to a profound loss of trust – not just in Australia but across the developed world. Consequently, the issue of trust has become a hot topic – a new staple item on meeting agendas of cabinets, boards, conferences, etc.
However, what if the spotlight being shone on the topic of trust is blinding us so that we fail to see a far greater risk lurking in the shadows – the potential loss of legitimacy?
Creating Transparency
The Ethics Centre has just published a paper that raises this possibility and sounds a warning that should be heeded by those of us who believe in the virtues of the market economy. We do not argue that trust is unimportant. Instead, we make the case that while individuals and institutions can (and do) survive a loss of trust, they rarely (if ever) survive a loss of legitimacy.
“We do not argue that trust is unimportant. Instead, we make the case that while individuals and institutions can (and do) survive a loss of trust, they rarely (if ever) survive a loss of legitimacy.”
At the core of our argument is a simple truth of economics. A reduction in trust can be compensated for by an increase in the “deadweight” costs of surveillance and enforcement. The classic case is the making of agreements. A high trust context can see agreements made on the basis of a low-cost handshake (or its equivalent). Low trust contexts are burdened with the high costs of detailed contracts, enforcement provisions, litigation, etc.
The Definition
Bearing this in mind, we distinguish between the concepts of trust and legitimacy according to the following definitions:
Legitimacy is a recognised and well-founded right to claim a certain status, role or function.
Trust is a belief that a person or institution will perform their role or function in accordance with its obligations or where not bound by duty, in a predictable manner – often in accordance with its interests.
The less formal distinction is as follows: where low trust can be compensated for by a higher degree of checks and balances (deadweight costs), a loss of legitimacy cannot be compensated for at any cost.
Making The Case
Now, if you accept our argument that there is a difference between trust and legitimacy and that a loss of the latter is usually fatal, it soon becomes clear that some of our institutions are at grave risk. We see the early signs in a number of areas. In politics, it is not only political parties and politicians that risk losing legitimacy – it is the system of representative liberal democracy that is being called into question.
As the Lowy Institute has reported, a growing number of younger Australians doubt the capacity of democracy to respond to the challenges of modern life. In economics, there is growing scepticism about the legitimacy of an international economic order. Especially when the focus shifts to free trade and the operation of free markets. We see both trends converging in movements (sometimes dismissed and derided as mere populism) that are reshaping the political and economic landscapes in Europe, North America, Central America and at home.
The great risk in this is that each and every part of the political and economic ecosystem becomes tarred by the same brush – with the spiral of decline sucking in all…the good, the bad and the indifferent…without distinction.
Our Role
For its part, The Ethics Centre has a long history of calling attention to the ethical underpinnings of the free market…recalling that Adam Smith championed markets as the means by which to bring prosperity to all (and not just a few). We (again) make the case for free markets in this latest paper – but go one step further by outlining some core principles that we think should be adopted by corporations if they are to help maintain the legitimacy of the system upon which they ultimately depend.
At one level, the headline principles are deceptively simple: respect people, do no harm, be responsible and be transparent and honest. However, rather than simply state self-evident pieties, we have tied these principles back to the underlying concept of free markets as tools for increasing the stock of common good. These tools and mechanisms can only function, as intended, if participants do not lie, cheat or use their power oppressively.
“Businesses are struggling to develop enabling connections with communities. Their efforts are embedded in conversations about trust, social licence, shared value and so on.”
Businesses are struggling to develop enabling connections with communities. Their efforts are embedded in conversations about trust, social licence, shared value and so on. There are major programs to increase transparency – often as an alternative to trust (which makes transparency unnecessary). We argue that the problem with all of these efforts is that they fail to address the larger problem of a system whose parts are progressively undermining the legitimacy of the whole.
The good news is that the unravelling is reversible and that some fairly straightforward measures can be applied, but only if we rediscover the purpose of the free market and the economic actors that it sustains – for the good of all.
Visit https://ethics.org.au/trust-and-legitimacy/ to download a copy of the Trust, Legitimacy and the Ethical Foundations of the Market Economy report.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Australia Day and #changethedate - a tale of two truths
The recent debate about whether or not Australia Day should be celebrated on 26th January has been turned into a contest between two rival accounts of history.
On one hand, the ‘white arm band’ promotes Captain Arthur Phillip’s arrival in Port Jackson as the beginning of a generally positive story in which the European Enlightenment is transplanted to a new continent and gives rise to a peaceful, prosperous, modern nation that should be celebrated as the envy of the world.
On the other hand, the ‘black arm band’ describes the British arrival as an invasion that forcefully and unjustly dispossesses the original owners of their land and resources, ravages the world’s oldest continuous culture, and pushes to the margins those who had been proud custodians of the continent for sixty millennia.
This contest has become rich pickings for mainstream and social media where, in the name of balance, each side has been pitched against the other in a fight that assumes a binary choice between two apparently incommensurate truths.
However, what if this is not a fair representation of the what is really at stake here? What if there is truth on both sides of the argument?
The truth – that is, the whole truth – is that the First Fleet brought many things. Some were good and some were not. Much that is genuinely admirable about Australia can be traced back to those British antecedents. The ‘rule of law’, the methods of science, the principle of respect for the intrinsic dignity of persons… are just a few examples of a heritage that has been both noble in its inspiration and transformative in its application in Australia.
Of course, there are dark stains in the nation’s history – most notably in relation to the treatment of Indigenous Australians. Not only were the reasonable hopes and aspirations of Indigenous people betrayed – so were the ideals of the British who had been specifically instructed to respect the interests of the Aboriginal peoples of New Holland (as the British called their foothold on the continent).
The truth – that is, the whole truth – is that both accounts are true. And so is our current incapacity to realise this.
The truth – that is, the whole truth – is that the arrival of the Europeans was a disaster for those already living here for generations beyond human memory. This was the same kind of disaster that befell the Britons with the arrival of the Romans, the same kind of disaster visited on the Anglo-Saxons when invaded by the Vikings and their Norman kin. Land was taken without regard for prior claims. Language was suppressed, if not destroyed. Local religions trashed. All taken – by conquest.
No reasonable person can believe the arrival of Europeans was not a disaster for Indigenous people. They fought. They lost. But they were not defeated. They survive. Some flourish. Yet with only two hundred or so years having passed since European arrival, the wounds remain.
The truth – that is, the whole truth – is that both accounts are true. And so is our current incapacity to realise this. Instead we are driven by politicians and commentators and, perhaps, the temper of the times, to see the world as one of polar opposites. It is a world of winners and losers, a world where all virtue is supposed to lie on just one side of a question, a world in which we are cut by the brittle, crystalline edges of ideological certainty.
So, what are we to make of January 26th? The answer depends on what we think is to be done on this day.
One of the great skills cultivated by ethical people is the capacity for curiosity, moral imagination and reasonable doubt. Taken together, these attributes allow us to see the larger picture – the proverbial forest that is obscured by the trees. This is not an invitation to engage in some kind of relativism – in which ‘truth’ is reduced to mere opinion. Instead, it is to recognise that the truth – the whole truth – frequently has many sides and that each of them must be seen if the truth is to be known.
But first you have to look. Then you have to learn to see what might otherwise be obscured by old habits, prejudice, passion, anger… whatever your original position might have been.
So, what are we to make of January 26th? The answer depends on what we think is to be done on this day. Is it a time of reflection and self-examination? If so, then January 26th is a potent anniversary. If, on the other hand, it is meant to be a celebration of and for all Australians, then why choose a date which represents loss and suffering for so many of our fellow citizens?
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
The Ethics Alliance: Why now?
After almost thirty years of existence, The Ethics Centre has chosen this particular time to establish The Ethics Alliance. Why the Alliance, and why now?
I’ve heard it suggested that the Alliance is a necessary response to a period of history in which our trust in institutions – including banks, governments and the media – has dropped to a new low point. Some may see it as an opportunity for organisations to restore their battered reputations.
Others may see the Alliance a little more generously, as a community of like-minded organisations with a common commitment to good business practice. A collaborative effort to raise the standards of good business behaviour. A source of insights and tools that will enable better culture to emerge.
While low levels of trust certainly form part of the context within which The Ethics Alliance is emerging, we believe the root cause of our current malaise is something far more significant: the fact that we are on the edge of a transformation that will change our society in ways every bit as profound as those caused by the First Industrial Revolution.
The Ethics Alliance has a clear function. It is a mechanism for developing collective insight and practical measures that will support its members to manage this historic transition. The Alliance will enable companies – and the leaders who work in them – to harness change for the benefit of employees, customers and shareholders alike. The ultimate beneficiary will be the society in which we all live.
We are already seeing clues as to the general shape of the coming changes. Many of these are the product of scientific and technological innovation. Artificial Intelligence and robotics (including nano-fabrication by 3D printers) will displace vast numbers of people from employment. New jobs may be created – but there are very few credible plans in place to ensure the necessary transition will be just or orderly.
The upheaval in employment will be accompanied by a revolution in medicine. Gene editing (using the ‘cut & paste’ functions of CRISPR), pharmaco-genomics, the use of stem cells to regenerate organs and a myriad of other developments will see a startling increase in the lifespan of those who can afford these therapies.
The resulting seismic shift in demography will challenge all of our assumptions about what makes for a worthwhile life, about the status of long-established social institutions, about sources of value and so on. What kind of economy will be needed to support such a society? What is the role of the market, of government, of civil society?
These questions will create new practical challenges within every workplace. If one of the key responsibilities of business leaders is to anticipate and plan for the emerging future and creating organisations which are fit for purpose, then there is much to discuss. Scientists, economists, engineers and lawyers can help us to know what we could do in response to issues of this kind. But only ethics can help us decide what we should do.
We believe business, professional and government organisations not only have a responsibility to help meet the challenges of the future – they also have the capacity to do so.
These matters are not just for governments to solve. Few, if any, organisations will be able to address such ‘civilisational’ challenges alone. Aggregating the resources, energy and insights of members of The Ethics Alliance will achieve outcomes that individual organisations could never achieve on their own.
The Ethics Alliance will also provide practical tools to its members – building their capacity to make better decisions – even in conditions of uncertainty. And it will support innovation. The Ethics Alliance has been designed as a safe place for testing the boundaries of what might be possible.
Society may have lost a little of its faith in government and business lately, and that’s something we should all be concerned about. We believe business, professional and government organisations not only have a responsibility to help meet the challenges of the future – they also have the capacity to do so.
These same organisations cannot afford to ignore these issues or mismanage their response. This is not just about managing risk. It is also about learning how to harvest the dividends of progress without compromising the future.
In that sense, The Ethics Alliance is not so much a response, as a product of the times in which we live.
This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.
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