Find balance in the history or find history in the balance

The current debate regarding the ability of faith-based schools to preference staff who share a common faith appears to ignore a crucial principle of international human rights law that aims for a principled balancing of conflicting rights. By david fawcett.

World War II was the deadliest military conflict in history with over 70 million people — about 3% of the world’s population at the time —losing their lives. In the aftermath of the war, representatives from many nations and cultures came together to analyse the root causes of the conflict and to consider how to prevent a recurrence.

Their conclusion: the foundation of freedom, justice and peace in the world hinges on the rights of the individual to be free from coercion, oppression and the arbitrary use of powers.

They went on to develop a framework of core individual freedoms including: the freedom to speak, to associate with others, to be a person of faith, freedom from discrimination, from slavery and to equality before the courts, amongst other basic principles such as the presumption of innocence. These values now underpin the character of nations that adhere to the rule of law and embrace the concept of a plural democracy — a society where people holding different views respect and make space for each other rather than demand universal conformity.

This codification of universal human rights was facilitated by Eleanor Roosevelt who served as the first Chairperson of the Commission on Human Rights. The Commission drafted the Universal Declaration of Human Rights (UDHR) which was adopted by the general Assembly of the United Nations in December 1948. The UDHR led to a range of international agreements such as the International Covenant on Civil and Political Rights (ICCPR) which was adopted by the General Assembly in December 1966.

While many nations have ratified the ICCPR, the extent of compliance varies greatly. It comes as no surprise that there is a strong correlation between the current flash points in international affairs and governments that trample on the fundamental rights of their own citizens — as well as other peoples. The illegal and brutal invasion of Ukraine by Russia is a case in point.

Australia gives effect to the ICCPR though domestic laws, albeit to date, not all the provisions of the Covenant have been codified at either a Commonwealth or state level. Consequently, there is a high degree of awareness of some human rights — such as freedom from discrimination — while others, despite being key foundations of Australia’s open and free society, are rarely discussed. This leads to a perception by many in the community that some rights take precedence over others.

In fact, based on the painful lessons of World War II, measures to implement the UDHR and the ICCPR make it clear that there is no order of precedence, and that all human rights are “universal, indivisible, interdependent and interrelated”.  The 1993 Vienna Declaration highlighted that the international community “must treat human rights in a fair and equal manner, on the same footing, and with the same emphasis”.

The implication of this is that at times, different rights may conflict. To guide nations in resolving this tension and finding a fair balance, a framework known as the Siracusa Principles was developed by an International Commission of Jurists drawn from over 30 nations spanning every region of the world, including Australia. The Siracusa Principles highlight that in protecting one right, any limitation on another right must be strictly necessary, proportionate, no more restrictive than required, and consideration must be in favour of the right which is being limited.

The current debate in Australia regarding the ability of faith-based schools to preference staff who share a common faith appears to ignore this crucial principle of international human rights law. Even the lead Commissioner for the inquiry conducted by the Australian Law Reform Commission (ALRC) has been quoted as saying that indirect discrimination was what the Commissioners “consider the more problematic area”. The balancing provisions of the Siracusa Principles serve to highlight that the ALRC approach is itself problematic, as it would unnecessarily limit the rights of people of faith who, in association with others, wish to uphold their beliefs within an entity set up for that purpose.

It is important to remember that faith-based schools generally exist for one of two reasons: either the charitable mission of the church to the broader community; or because parents wish to have their children educated within a community of shared faith or values.

The Josephite Order established by Mary McKillop in the 1860s is a good Australian example of the first reason, establishing schools and orphanages as well as ministries to the aged poor, prisoners and incurable ill. International human rights recognise the right of faith-based groups to establish and maintain charitable organisations with a distinctive religious nature (1981 Declaration of the General Assembly Article 6 (b)).

In those founded for the second reason, many low-fee faith-based schools in contemporary Australia have their origins in a group of parents, literally, building a new school. Far from insisting that their views prevail in the broader community, these parents took the trouble to establish an alternative, along with others who share their faith and worldview.

In Australia where the majority of such schools are Christian, it is worth noting why so many people are attracted to the values of faith-based schools. Writings such as Siedentop’s “Inventing the Individual: The Origins of Western Liberalism” detail how the very concept of human rights originated from the Christian world view. Indeed history shows it was faith that drove Wilberforce’s legislative battle to abolish slavery; faith the raison d'etre for Henri Dunant on the Solferino battlefield to start a charitable work (the International Red Cross); and faith the motivation for Mary McKillop’s schools.

So, what does international human rights law say about faith and education? Article 18 (1) of the ICCPR makes it clear that individuals have the right to hold a faith-based world view. Article 19 makes it clear they have the right to speak freely about what they believe. Their right to associate with a group of like-minded people is guaranteed by Article 22. Article 18 (4) stipulates the right of a parent to ensure that their child is educated in accordance with their faith or morals. So important is this right, that unlike Article 18 (3) — the right to manifest religion, which can be limited in some circumstances —the UN Human Rights Committee in paragraph 8 of their General Comment 22 state that “the liberty of parents and guardians to ensure religious and moral education cannot be restricted”.

The Siracusa Principles highlight that international human rights law does not support the ALRC proposal to compel conformity in the name of one specific human right. To do so would unnecessarily limit multiple other human rights which have equal standing. Also at odds with the current ALRC proposal is the assessment of Justice Derrington, the immediate past President of the ALRC, that a religious institution in fact does not discriminate where it acts consistently with its religious beliefs and practices or its religious purpose.

This principled balancing of human rights is why faith-based schools currently have discretion to positively preference staff that adhere to that religion and its practices. This is not “anti” others but “pro” association with like-minded people, in order to foster or protect the religious ethos of the school.

This is the essence and strength of a plural democracy such as Australia. People holding different views respect and make space for each other rather than demanding conformity. Indeed, private denominational schools in the context of the ICCPR, are “a part of the institutionalised diversity within a modern pluralistic society” according to the UN Special Rapporteur for Freedom of Religion and Belief (2010). This institutional diversity means that parents and teachers who believe in the values and teaching of a religion are free to associate within a school community that is established specifically to support their worldview. Those parents or teachers who do not agree with the religious worldview or specific teachings, are free to associate with public or non-religious independent schools.

Both options must exist in balance if our society is to have diversity.

In a 1948 speech to the UK House of Commons, Sir Winston Churchill paraphrased the Spanish-American philosopher George Santayana when he said: ‘Those who fail to learn from history are condemned to repeat it.’ The balance we need in our society today can be found in history and the work of people such as Eleanor Roosevelt in New York and the jurists at Siracusa. If we ignore the painful lessons that led to the codification of human rights and associated principles, the history of Australia as a free, plural democracy will itself be in the balance.

David Fawcett is Deputy Chair of the Joint Standing Committee on Foreign Affairs, Defence and Trade and a Liberal Senator for South Australia.