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Thursday, 4 December 1986
Page: 3425

Senator HARRADINE(9.27) —As Senator Peter Baume has said, I have given notice of my contingent motion, which is to be found at No. 27 on page 11145 of the Notice Paper of 4 December. I refer honourable senators to that notice of motion, which is to remove from the Sex Discrimination Act an injustice. I have thought about this matter quite deeply. I am conscious of the fact that this is our last night in this Parliament, I hope, for the year.

Senator Gareth Evans —Don't bank on it.

Senator HARRADINE —It will be my last. I have a daughter who is getting married and I have to go to practice tomorrow night. The issue that we have before us is a vital issue indeed. I am conscious of the fact that honourable senators are absent on duty elsewhere but I feel that I should take this opportunity, for the benefit of those honourable senators here and, in particular, for the benefit of the Australian Democrats, to indicate the very real issues that are involved in my foreshadowed notice of motion. I have thought long and deeply about this question and I believe that there is an injustice which needs to be remedied. It is the injustice that was referred to by Senator Baume-that is, the injustice which was imposed under New South Wales legislation on Dr Tralaggan, who, because of a firm, conscientious belief, decided not to let his accommodation to a couple who were not married. At the request of the Opposition I have confined my amendment to that circumstance. It must be remembered that, because the sex discrimination legislation calls upon the external affairs power, it now requires anybody in any part of Australia to recognise, for the purposes of letting accommodation and indeed for other purposes, a couple cohabiting as though they were a bona fide married couple-under pain of penalty. That is the point I am coming to. It is for the purpose of removing that injustice that I am moving the amendment. The injustice is the prohibition in the legislation against citizens giving practical expression to their conscientiously formed beliefs about marriage and sexual union.

The sex discrimination legislation prohibits advertisements and leasing arrangements which would give preference to legally married couples over unmarried couples except where the rooms let are in close proximity to the lessees domestic quarters. This prohibition is not an accident of drafting. I maintain, because I was on the third committee in the United Nations at the time, that members of the committee in their considerations of that matter in 1977 did not propose that discrimination on the basis of marriage should mean that a person should recognise a de facto couple or a cohabiting couple as being bona fide married. That was not in their minds at all. Therefore, the very real possibility is that the legislation lacks constitutional power. Nevertheless the clause is there and it is not an accident of drafting. The legislation has been designed to compel Australians to treat de facto or cohabiting couples as if they were legally married under pain of penalty. In the Tralaggan case the doctor was fined about $700.

The situation before us tonight is: The Federal Parliament has passed legislation which makes it illegal for a property owner to refuse to let premises to unmarried persons for the purposes of cohabitation even if, in so doing, the lessee was acting contrary to the dictates of his own conscience. This attack on the primacy of the human conscience is out of character, I suggest, with the concept of the free society which the Federal Government, by this legislation, is alleging to defend and promote. To deny people the freedom to follow their consciences when formed in good faith is to attack the keystone of human liberty. If one were setting out to create a totalitarian state, it would be mandatory to begin by denying the authority of conscience. Just such a denial has been made by the Federal Government in this legislation. In defence of the anti-conscience prohibitions of the Sex Discrimination Act, Senator Gareth Evans has argued the following case. He stated:

If one allows people to have conscientious personal beliefs in the way that they discriminate on the basis of marital status, where does one draw the line in relation to those bigots . . . who would claim conscientious beliefs inspiring and justifying their discrimination on the ground of race, colour, religious belief or any . . . other categories of discrimination . . . ?

Before dealing with Senator Gareth Evans's justification of the provisions of the legislation denying the right of conscience, we must first ask ourselves the question: What is conscience? This is an important question because I believe Senator Evans's understanding of conscience is quite different from mine. Conscience is the means by which we decide what is just and right and what is unjust and wrong. But precisely what sort of means is it? That is the key question. First, let us be clear about what conscience is not. It is not an interior voice. It is not an interior sight, though commonly treated as such. Conscience is not an intuition peculiar to each individual, nor is it an emotion. If conscience were any of these, it would be merely the expression of disposition, mood or taste. It would have no authority. No court or law or parliament or person would be obliged to respect it if it were any of those things. If conscience were but a voice, sight, intuition or emotion, men and women by their very nature would be morally irresponsible, and all their institutions likewise. Being irresponsible, both man and his institutions must be arbitrary. Consequently, society and the state could only be either chaotic or oppressive.

However, we have a bulwark against this nightmare, and that is conscience properly understood. What we mean by conscience is a rational faculty to choose between right and wrong. Conscience is the intellect making moral judgments. When we make moral judgments we make them about actions. This exercise of reason over what we do we call practical reason and we distinguish it from speculative reason, which deals with questions about the nature of things. Conscience, then, is the exercise of practical reason, by means of which we decide courses of action. Everyone in the Senate should be familiar with the faculty of conscience. That is because our reason for being here is to exercise our consciences. We are in politics to make practical judgments, in this case about achieving the common good. There ought to be no mystery about what conscience is. Well or ill, we use it all the time in this chamber and elsewhere.

The most important characteristic of conscience is that it is rational. This means that conscience does not utter its judgments in a language incomprehensible to all except the owner of the conscience. The judgments reached by conscience can be tested publicly according to commonly understood rational principles. So the workings of conscience are not purely and simply subjective. Conscience is, of course, subjective in the sense that it is I who make my conscience, I who use my conscience-no one else; nor do I use the conscience of another person. But when we employ consciences we use the language of reason and, as a result, our moral judgments can be the object of the assessment of other minds. In this sense our consciences are objective. For this reason, the position taken by conscience can be tested for rationality and good faith.

From all this a fundamental principle arises: Human beings must act in accordance with their consciences and must not be forced to act contrary to conscience when it is formed in good faith. That is because when human beings are asked about what they ought to do they are being asked what reason tells them to do. In other words, the question is: What is reasonable? Conscience or the action of the practical intellect tells man what is reasonable. To deny conscience therefore or to be denied the right to follow it is unreasonable in that it closes off man's only path to knowledge-in this instance, knowledge of the very fundamental notion: What is right and what is wrong. We are encountering one of the givens in moral discourse, something that is fundamental, irrefutable and underived. It does not make sense to say that human beings ought not to follow their conscience when conscience is the one and only means of settling moral questions. To deny conscience is wrong because it is irrational. More than this, to deny conscience is to be less than human. In conscience we have a marvellous faculty, something that makes the difference between merely existing as human beings and flourishing as human beings. The exercise and the following of conscience means realising one's human potential, a potential which includes knowing the difference between right and wrong. Not to use one's conscience, to deny it, or to be denied it means living at a lower level of human potential. Human beings who cannot or will not use and follow their consciences reject their human potential. What they realise is animality rather than humanity. This is why the sex discrimination legislation in this respect is unjust. By refusing people the right of freedom to follow their consciences the law offends against the first principle of morality; that is, against reason.

Senator Evans has argued, however, that to allow the right conscientiously to discriminate on the grounds of marital status would be the thin end of the wedge. To grant this ground of conscientious objection, he told us, would necessarily mean granting it to those who would claim in the name of conscience the right to discriminate on the grounds of race, colour or religion. That is a completely specious argument.

Senator Gareth Evans —Logic is the same.

Senator HARRADINE —The Minister should listen. It displays the ability of the Minister's mind, which I acknowledge is founded on maybe the liberal tradition, as well as the gaps in his understanding. Behind this argument we find a deep misconception about the nature of conscience, a gross misunderstanding, the effect of which is to trivialise conscience, if not ultimately annihilate it. The hidden premise in the Minister's argument is that conscience is not a rational faculty but is wholly subjective. If it were other- wise Senator Evans would be able to distinguish between the irrationality and bad faith of the racist's false conscience and the rationality and good faith of a person who refuses to accept that an unmarried couple or a cohabiting couple are really the same as a married couple.

Since, and perhaps unknown to himself, his premise is that conscience is a kind of intuition-that is what he is talking about; something which develops conviction by means which, in the final analysis, are uniquely personal and incommunicable-on his argument, it is impossible to distinguish between the value of judgments reached by one conscience and those reached by another. Thus all consciences, in his view, must be treated as equally true, equally false, or equally irrelevant. If one kind of conscience judgment were to be favoured over another, it must be favoured arbitrarily, since no such judgment can be tested objectively. Conscience and moral responsibility, therefore, would be emptied of meaning. It is ironic that the Minister, as a lawyer, and I recognise as an intellectual, who has been formed self-conscientiously in the liberal intellectual tradition, should espouse notions of conscience which undermine the moral responsibility and dignity of the individual. It is ironic but not unexpected. Senator Evans is only working out, in a consistent way, the subjectivist theory of knowledge which is embedded in the foundations of the liberal intellectual movement. In the argument he uses to defend denial of conscience we see an instance of how the movement, which began at the enlightment by proclaiming man's moral autonomy, has ended up by underwriting his subjection to the moral dictatorship of the modern secular state. Conscience can be tested for rationality and good faith. What is the conscience provision of the Conciliation and Arbitration Act for? We have been through that time and again. Because of this we know that it is not rational to discriminate against persons, for example, on the basis of their skin colour. But how do we know this? The exercise of conscience or practical reason is guided by certain methodological principles. These norms of moral reasoning are held to be fundamental, irrefutable and underived. This is not because it is self-contradictory to deny them but because their denial ensures that moral judgments are unreasonable. The guides to sound moral judgments include: First, that there should be a detachment in making moral judgments and commitments to acting in accord with them; second, that moral judgments should favour the common good of society; third, that one should not arbitrarily make preferences between the basic values, commitment to life, knowledge, friendship, reason, et cetera on which the making of moral judgments depends; and fourth, that there should be no arbitrary preference among persons. In other words, if some act is a moral imperative for one person it must be imperative for all.

If we were to apply these principles to the case of the bigot who claims the right to discriminate simply on the basis of race, colour of skin or religion we could easily dismiss that claim. For a start he is making an arbitrary preference amongst persons; secondly, his proposed action would be contrary to the common good, particularly in a multi-racial or multi-religious society; thirdly, a bigot could hardly be detached about his judgments. On these grounds we can conclude that the bigot's process of moral judgment is at least unreasonable. Moreover, if it were the case that the arbitrariness and lack of detachment arose from malice or vincible ignorance his conscience would have been exercised in bad faith. Consequently, the bigot has no ground for claiming a right of conscientious objection to not discriminating on the grounds of race, colour or religion.

However, one cannot say the same thing of a person who claims the right not to confuse a married couple with an unmarried couple. In the first instance it is open to such a person to argue that to blur this important distinction is contrary to the common good. Given the evidence of poverty, alienation, social disharmony and financial costs which go with the breakdown of the family, it is reasonable for people to argue that to refrain from upholding the principle of the family, an institution whose health is central to the health of the whole society, would be to set at nought the common good.

Some members of the Government disagree with the conscientious objector. Apparently, they believe that the evidence to which he refers does not point to any harm in alternative sexual lifestyles. Perhaps a personal social suffering we witness in the ambit of sexual relations and family life has some other explanation. After all, the same evidence can be interpreted differently. But no one can argue that the conscientious objector's case is unreasonable; that is the point. Therefore, the conscientious objector argues well when he further claims that by condoning non-marital cohabitation, he is meeting a necessary condition for minimising the common good. Consequently, it would be unreasonable and unconscionable for the Government to oblige him to give practical support to the activity that he believes, on rational grounds, to be against the common good.

One of the arguments used to rationalise rejection of this appeal to conscience is the claim that the conscientious objector is attempting to thrust a foreign set of moral values on those who want to live according to their own lights. That is a dishonest argument. The conscientious objector imposes nothing. His attitude is: `By all means you must follow your conscience and live life as you think fit; but do not expect me to supply you with the means so to live and do not expect me to have imposed upon me a provision such as is in the sex discrimination legislation which will fine me if I do not do so'. A conscientious objector must make no demands for a change of life-style. It is a breathtaking perversion of language to construe the statement `I cannot support and condone your life-style' to mean `You must abandon your ways and live as I do'. To justify the denial of the objector's right of conscience, a false and unreasonable construction has been put on his moral position. In so doing, those who would deny conscience have shown that their own moral argument has been premised on falseness and irrationality. Their argument thus falls to the ground; they are the ones who have been unjust.

Finally, I want to make a few remarks on claiming religious grounds as a basis for conscientious objection. An objection to the rights of a religious conscience might be framed thus: While conscience might work reasonably and can be tested, the religious conscience rests on an authority which is untestable; consequently, this conscience is arbitrary and by that fact a false conscience which can claim no rights. But this argument rests on a misapprehension about the relation of conscience to divine authority, particularly in the Judaeo-Christian tradition-of which we have heard much in recent weeks from the Government-that the divine authority is seen to be rational and not arbitrary. Believers are not called on to do things because God decides they are good; they are called to do them because they are good. Moreover, this goodness can be comprehended by human reason, despite its limitations and fallibility. The role, then, of divine authority and moral order is not to reveal hitherto unknowable moral truths but to reaffirm and fortify the human powers of moral reasoning.

Let us take the case of the biblical commandments not to kill, steal, commit adultery, et cetera. These are not laws that had to be revealed to human beings. Because of their powers of moral reasoning, human beings can know these for themselves. But, because of human fallibility and lack of commitment to moral reasoning, people need to be reminded of what their consciences tell them. Therefore, as far as what we might call the natural moral law is concerned, even the religious conscience is testable. This means that the person who claims on religious grounds to murder, steal, lie or to treat people in any way which implies that they do not have the same rights, has a false religious conscience because what he claims to do by divine authority is unreasonable. It cannot be required by God. In all cases our rule of conduct ought to be the reasonable line to follow because the only alternative to this rule is subjectivity, irrationality and arbitrariness. Moreover, because the exercise of conscience-that is, of practical reason-is the only way that human beings can make judgments about the reasonable thing to do, the judgment of conscience must always be respected. Not to respect conscience is to attack the existence of a free and democratic society. To compel people to act contrary to conscience is to force their submission to arbitrary and authority, the very thing democratic societies have been developed to prevent.

I urge the Senate very strongly to recognise the moral integrity and responsibility of the individual's conscience. I urge the Senate to amend the Sex Discrimination Act to ensure that in this area our fellow Australians can act according to the dictates of their own consciences. To deny them this freedom would be the beginning of tyranny.