"I Enjoy the Right to Comment on Proposed Laws"
SYDNEY, Australia, SEPT. 21, 2007 (Zenit.org).- Here is a statement written by Cardinal George Pell, archbishop of Sydney, in which he welcomes a report clearing him of contempt of Parliament.
Cardinal Pell was referred to the Privileges Committee of the New South Wales Legislative Council for comments he made during the debate on the Human Cloning Bill earlier this year.
Answering questions at a press conference June 5, Cardinal Pell pointed out that "Catholic politicians who vote for this legislation must realize that their voting has consequences for their place in the life of the Church."
Cardinal Pell’s comments were referred to the Privileges Committee on June 6.
In its report t o the state's upper house, the Privileges Committee has found there is no contempt of Parliament in Cardinal Pell's remarks, and has recommended that no further action be taken.
* * *
Introduction
This response is written at the invitation of the Privileges Committee of the Legislative Council of the Parliament of New South Wales.
I understand that the Privileges Committee is to inquire and report on whether public comments made by me constitute a contempt of Parliament. The terms of reference of the Committee refer to comments by me contained in:
1. A written media statement issued by the Bishops of New South Wales on June 4, 2007 to which I was a signatory, and
2. Comments attributed to me in articles published in the Sydney Morning Herald and the Daily Telegraph on June 6, 2007.
It is important to note at the outset that I issued the Bishops' statement and participated in the press conference as a par t of a public debate on the Human Cloning Bill then before the Legislative Assembly of New South Wales. Along with other citizens I enjoy the right to comment on proposed laws on my own behalf and on behalf of the community I represent. That is the essence of democracy. Therefore it seems to me to be an extraordinary step for the Legislative Council to require a citizen to justify his contribution to the debate or risk a finding of contempt. Before returning to this point however, a brief comment on the public debate which took place on the Human Cloning Bill may be useful.
Public debate on legislation before Parliament
On 6 June 2007 by the Honourable Richard Torbay MP, Speaker of the Legislative Assembly of New South Wales, referred to my comments in the following terms:
High profile and eminent people often make comments on legislation before Parliament. That is the nature of a democratic society, which enables people of all persuasions to voice t heir views.
Public debate about legislation before the Parliament does not necessarily insult the House or its Members. Comments directed at Members could be construed as reflecting on the character or conduct of Members in Parliament. However, for such comments to be a breach of privilege they must have dire consequences for Members, such as impeding Members in their duties in the House.
I consider in this case that the comments made about the legislation before the House have been made as part of the public debate on a controversial issue and have not affected the rights of Members to express their views and vote as they deem appropriate.
The Speaker's words would be equally applicable to comments attributed to the convenor of the Coalition for the Advancement of Medical Research Australia also contained in the Sydney Morning Herald of 6 June 2007:
The Coalition for the Advancement of Medical Research Australia said there would be elec toral consequences for politicians who did not vote in support of research that could offer potential therapy for spinal cord injury, motor neurone disease, Parkinson's disease, and juvenile diabetes.
'There are patients and their families who are also constituency members and will not vote for them when the next election comes along', said the advocacy group's convenor, Joanna Knott.
As I understand it no allegation of contempt has been made, nor is being contemplated, in relation to the comments by the convenor of the Coalition for the Advancement of Medical Research Australia.
Both my comments and those of the convenor of the Coalition for the Advancement of Medical Research Australia are properly seen as, adopting the words of the Speaker of the Legislative Assembly, "part of the public debate on a controversial issue [which do not affect] the rights of Members to express their views and vote as they deem appropriate".
I need hardly remind Members of the Committee that votes in the Parliament are almost always subject to party discipline. If a Member of Parliament votes against party policy, that Member is subject to sanctions which may be imposed by party officials outside the Parliament, including expulsion from the party itself.
Similarly, by way of example, a parliamentarian who supported a bill for capital punishment could hardly complain were his or her membership of anti-capital punishment organisations to be forfeited.
I am not aware that the customs and conventions of the Legislative Council have ever deemed such conduct by party officials or outside bodies to be contempt of Parliament.
On the much lesser "offence" of making a bona fide contribution to public debate, I do not believe that a citizen of this State has ever been charged with contempt for views he has expressed on a controversial bill. Nevertheless I will give Members of the Committe e an account of my views so that they may better understand why I regard your requirements of me as both undesirable and unprecedented.
My comments on the Human Cloning Bill
My comments on the Human Cloning Bill were derived from the conviction that Parliamentarians who legislate for the destruction of human life (in any circumstances and especially in this case where no cures from human embryos have been effected during many years of research) are acting in a way that departs from the principles of both the natural law known through human reason alone and Christian teaching. The natural law principles and the teaching in question are that human life should be accorded the full protection of the law without regard to race, ethnicity, sex, religion, age, condition of dependency or stage of development.[1]
I put forward this moral argument as a contribution to the public debate because it is rational, an argument open to acceptance by all people of no religion and any religion. I was not asserting some supernatural dogma beyond human reason and seeking to impose it on the general community. It would be a sad day for Australia if only members of the Christian majority accepted the unique dignity of the human person. But this is not the case. Defenders of human life -- from conception to natural birth -- come from every section of the Australian population.
As a Catholic archbishop I am also charged with ensuring that Catholics know the moral teaching of the Church. The Church's teaching on cloning states that the cloning of a human being is wrong and cannot be justified by any known or imagined effects. The Church also teaches that destructive experimentation on embryonic human beings -- cloned or otherwise -- is an intrinsically evil act, because experimentation involves their dismemberment and therefore mutilation and death.
In asking Catholic politicians -- and other Members of Parliament who are Ch ristian or who respect human life -- to vote against this legislation, the New South Wales bishops were not calling for the "enforcement" of Catholic beliefs, but reminding legislators to fulfil the demands of justice and the common good that follow from the inherent and equal dignity of every member of the human family.[2] This is exactly the basis on which the Church also calls on legislators to protect the poor or to oppose racial discrimination.
In the press conference on June 5, after reading the joint statement of the New South Wales Bishops, I faced repeated questions about the consequences for Catholic politicians who did not follow the natural law teaching of the Church on these matters, after being reminded in a written question that on May 9, Pope Benedict XVI had spoken about abortion in these terms: "It simply states in Canon Law that the killing of an innocent child is incompatible with going to Communion, where one receives the Body of Christ".
In response, I pointed out factually that "Catholic politicians who vote for this legislation must realise that their voting has consequences for their place in the life of the Church", while also pointing out that legislating for abortion is not the same act as performing an abortion, and supporting legislation for human cloning is somewhat different again.
The phrase "consequences for their place in the life of the Church" refers to the effect a seriously wrong decision has on the personal relationship between that individual and God, and that individual and the Church community to which he belongs. These consequences need not be imposed from outside by a third party such as a bishop or priest, but are intrinsic to the infraction itself and loosen the person's bonds to the Church.
No one is compelled to be or remain a Catholic. Obviously outsiders are not liable to Catholic discipline, and Catholics are able in our situation of religious freedom to ignore or reject any Church sanction.
My task as a Catholic Archbishop is to point out that God judges human conduct, as well as pointing out the importance of Catholics following Church teaching on matters of faith and morals. The vast majority of political matters are for the prudential judgment of each individual Catholic, but the Church is unambiguous that there are certain choices which are intrinsically evil and cannot in good conscience be condoned or promoted by faithful Catholics -- the evil being known through right reason itself, as well as through Catholic faith.
It is possible that some Catholic politicians have been misled by the theory of "primacy of conscience", allegedly an invention of the Second Vatican Council, although the phrase can be found nowhere in the documents of the Council.
It is difficult to know what this theory means, as everyone is obliged to act as he thinks proper. Unfortunately, as the Jesuit theologian Cardinal Avery Dulles writes, "the idea of conscience has been deformed by some modern thinkers . . . [who] often depict conscience as a supreme and infallible tribunal that dispenses us from considerations of law and truth, putting in their place purely subjective . . . criteria such as sincerity, authenticity and being at peace with oneself".[3] From this mistaken view some conclude that Church authorities, and by implication God himself, must accept every conscientious decision even when such a decision violates natural law, the Ten Commandments, and important Church moral teaching.
Jurisdiction to commit and punish for contempt
I will now turn to the question of the Legislative Council's jurisdiction with regard to contempt. I have taken legal advice which is reflected in what follows.
I note that the letter of 27 June 2007 from the Chair of the Privileges Committee of the Legislative Counc il, the Hon. Kayee Griffin MLC, identifies my public comments concerning the Human Cloning Bill as constituting the basis of an alleged contempt. I assume that the reference to the Committee is to enquire whether those public remarks come within the following description in Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23rd ed., 2004 at 128):
Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its function, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as contempt even though there is no precedent of the offence.
However Erskine May does not deal with the law of contempt of Parliament as it applies to New South Wales. That statement of law is to be found in the judgements of the High Court and the Privy Council.
A recent High Court discussion of the jurisdiction of the New South Wales Parliament on contempt is to be found in Egan v Willis.[4] The history of the Parliament's powers was discussed at length by Justice McHugh who reviewed the various authoritative statements of the Privy Council and the High Court as to the limits of those powers. These authorities show that (leaving aside any statute that the Parliament itself might enact) the common law does allow the Parliament to do what is reasonably necessary for the proper exercise of its functions. What is "reasonably necessary" is to be understood "by reference to what, at the time in question, have come to be the conventional practices" of the Parliament.[5]
However the authorities reject any notion that the common law empowers either House to proceed against a citizen for statements made in the past and outside the House. Justice McHugh quotes Mr Baron Parke in the Privy Council who said: "The whole question is reduced to this -- whether by law, the power of committing for contempt, not in the presence of the Assembly, is incident to every local legislature."[6] In answer, the existence of such an "extraordinary power" was emphatically rejected by the Privy Council, and there is no reason to think that it has ever been a part of the practices of either House of the New South Wales Parliament. This conclusion is reinforced by other cases referred to by Justice McHugh.[7]
The reasoning which supports this conclusion depends upon the distinction between the powers of the Parliament at Westminster and the powers of colonial parliaments, including that of the colony of New South Wales from its establishment.
The power to commit and punish for contempt is a power of the Parliament at Westminster, the Mother of Parliaments. This power had its origins in that Parliament's prior status as a court, the High Court of Parliament. But it has been long established that other parliaments created elsewhere in the British Commonwealth do not automatically possess this same power, simply by virtue of being a parliament.
Parliaments established under British law outside the United Kingdom were established not as courts in any sense, but purely as legislative bodies, typically with circumscribed powers. The New South Wales Parliament had its origins as a colonial assembly and in these circumstances Australian law confines the privileges of a parliament to those expressly conferred by statute, or "necessarily incidental" to its status, existence, and "the reasonable and proper exercise of [its] functions."[8]
In Australia the parliaments in every state except New South Wales have enacted legislation to identify their powers and privileges, often equating them to those possessed by the Parliament at Westminster. Because the New South Wales Parliament has never enacted this sort of statute, its privileges are confined to those "necessarily incidental" to its status, existence, and "the reasonable and proper exercise of [its] functions". The power to commit and punish for contempt only accrues to the New South Wales Parliament if it meets this criterion.
In considering the powers of parliaments in relation to contempt the courts have repeatedly held that there is a distinction between the removal of an impediment to the performance of parliamentary functions, and the punishment of past actions alleged to have had such an effect. The former is a power the possession of which is "really necessary . . . to secure the free exercise of [a Parliament's] legislative functions", but the same is not true of the latter.[9] The distinction between defensive and punitive action has been applied in relation to the Legislative Assembly of New South Wales.[10]
In other words, the power to investigate, judge and punish alleged past misconduct is an "extraordinary" rather than a "necessarily incidental" power, and it is properly a judicial power belonging to a judicial body.[11] Because the Parliament of New South Wales was not established as a court (as was the Parliament of Westminster), and has not enacted legislation to grant itself the privileges of Westminster, this power does not fall within its competence.
The courts have thus defined the kind of obstruction which would constitute a contempt of Parliament as limited to an attempt made to impede Members of Parliament from carrying out their duties freely. But there is no evidence that any Member of the Parliament was impeded from performing their duties or was in any way intimidated by my public remarks about the duties of Catholic politicians in considering this legislation. Quite the contrary.
It is also clear that the Legislative Council believed there was no need to take "defensive" action ag ainst any of the participants outside the Parliament, myself included, at the time of the debate to prevent obstruction and to ensure a free and open vote on the legislation. Certainly the Legislative Assembly, through its Speaker, did not perceive the remarks as obstruction but rather as part of a vigorous public debate as befits a democracy.
Religious Freedom
In a democracy such as Australia any citizen should be free to argue publicly for certain policies on religious grounds; these arguments to be accepted or rejected by legislators or electors as they see fit.
It is my submission that it is essential that religious leaders, including myself, are free to express the position taken by their Church or religion on matters of public interest and debate. To prevent religious leaders from doing so has the effect of stifling religious freedom and hampers effective and open debate on matters of public interest.
One of Christianity's most impo rtant public services is to preserve and strengthen Australia as a decent, prosperous and stable democracy. It does this through its many works of practical service and care, but also from time to time by regular participation in public debate, usually by lay people, but sometimes through Church leaders.
So too legislators are free to use religious considerations in deciding their position on legislation. I might add that the same principle allows atheists, be they legislators or electors, to act on the basis of their atheistic convictions when it comes to the formation of legislation and public policy. If the right of legislators and electors who are religious believers to do the same were to be denied, then we would have informally mandated atheism as the unofficial state religion. This is hardly compatible with the principle and practice of religious liberty.
Freedom of religion is not to be reduced merely to the freedom to perform ceremonies on private property. As Professor James Hitchcock, the distinguished American historian of the United States Supreme Court, has observed, "if freedom of religion means anything, it surely includes the right of every church to determine who is a member in good standing". To deny that Christian churches and other faiths have the authority to make such a judgement "is to deny religious freedom in a fundamental way."[12]
This implies that for good reasons a Christian church, somewhat like a political party or even a sporting club, has the right to exclude a person or persons from membership, and to recommend that they abstain from receiving Holy Communion or even, in some instances, to refuse to give them Holy Communion.
One good reason for the high respect given to Parliaments in Australia is that parliamentarians do not regard themselves as being above the law of the land. For the same reason it would be incongruous for Catholic parliamentarians t o declare that they are above basic Christian moral teachings, while still asserting their good standing in the Church.
Conclusion
In a democracy, any person can offer himself for public office. He may be affected or unaffected by religion, sympathetic or hostile to it. Our constitution imposes no religious test and excludes no candidate by reason of his attitude to religion. Public office is open to all. Things are no different when it comes to participation in public debate. Every citizen is entitled to take part. No one is excluded, including those who hold office within a religious community.
Although Australian life has been marred by sectarianism in the past, Catholics here never suffered the centuries of persecution that befell Catholics in Britain and Ireland, and nor have they been victims of the mob-violence and church-burning that anti-Catholicism occasionally produced in the United States. The idea that religion is irrational and mus t be excluded from public affairs is not a native Australian plant, and it would be regrettable if American or European frames of reference were imposed on the very different situation of religious life and public culture here in Australia.
Christians in Australia have long played an important part in ensuring that fundamental human rights are respected and will strive to continue this important work. My contribution to this public discussion on human cloning was made in this spirit and tradition.
ARCHBISHOP OF SYDNEY
20 August 2007
[1] Robert P. George, "Political Obligations, Moral Conscience, and Human Life", Voices 22:2 (Pentecost 2007), 15.
[2] Ibid. 16.
[3] Avery Dulles, S.J., "Truth as the Ground of Freedom: A Theme from John Paul II" (Grand Rapids: Acton Institute, 1995), 5.
[4] [1998] HCA 71.
[5] Ibid. at [50], per Gaudron, Gummow and Hayne JJ.
[6] Ibid. at [72].
[7] Ibid. at [76] & [77].
[8] Namoi Shire Council v Attorney-General of New South Wales [1980] 2NSWLR 639 at 643 (per McClelland J).
[9] Kielly v Carson (1842) 4 Moo PC 63 at 88-90; 13 ER 225 at 234-35.
[ 0] See Barton v Taylor 11 AC 197; Willis & Christie v Perry (1912) 13 CLR 592; Armstrong v Budd [1969] 1 NSWLR 649; and Gripps v McElhone (1881) 2 (LR) NSW 18.
[1 ] Kielly v Carson loc. cit.
[12] James Hitchcock, "Freedom of Religion at Political Crossroad", Women for Faith and Freedom, 10 June 2007.
