PODCAST: The Rule of Law in Free and Fair Societies

Saturday 19 July 2025

Human Rights Law Alliance Conference

PODCAST: The Rule of Law in Free and Fair Societies

36:53

Full transcript of speech available below:

The founders of Australia deliberately set out to create a free and fair country. They succeeded.

We wanted a country that is free in every way: Personal freedom, freedom of association, freedom of conscience, freedom of thought, freedom of the press, economic and cultural freedom, freedom of religion, freedom of property rights. This has been our experience.

We wanted a country that is fair in every way: Equal opportunity in education, universal healthcare, no discrimination because of religion or race, rule of law protecting against violence, trespass and fraud, economic and financial opportunities, with natural mechanisms that protect the vulnerable. This has been our experience.

Catholic Church Social Teaching

Pope Leo XIII, the first truly modern pope, responded to the immense changes and challenges presented by the Industrial Revolution with the Church’s first modern social encyclical. He published Rerum Novarum in 1891.

After destroying the arguments for the socialisation of property on both practical and philosophical grounds, Leo brilliantly set out the role of the Church and the role of the State in pursuing free and fair societies.

The Church has an indispensable role to play. The light of Christ must enter the temporal order, helping societies promote and maintain fundamental human values.

The light of Christ has four rays: What we believe; How we celebrate our belief; How we live our belief; How we pray our belief. When we Christians live authentically, society benefits enormously. Good is pursued and Christian witness is persuasive. Likewise, evil is rejected and our non-compliance with it, stirs the consciences of our peers.

The State has an indispensable role to play. It should defend the dignity of the human person, promote marriage and family as the primordial community, respect freedom of religion, uphold the importance of the rule of law, including property rights, promote individual incentive orientated to the common good.

The Australian Constitution

It was Patrick McMahon Glynn, a brilliant Irishman, always the smartest bloke in the room according to Alfred Deakin, who persuaded the founders of the Federal Constitution of Australia, to include a reference to God in the preamble. Glynn would have read Rerum Novarum with its complementary view of the role of Church and State in the development of a free and fair country:

‘WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth….’

And then the masterful Section 116 of the Constitution, protecting religious liberty. In essence it says:

No official religion. No compulsion in religion. No restriction on religion. No religious discrimination.

How utterly brilliant, made even more so when we realise that most of the founding fathers were not believers in God at all. The constitution aims to let us breathe the air of freedom, including religious freedom, enabling the nation’s footsteps.

Australia 2025

But the goal posts have shifted in Australia. Anti-religious secularists are on a mission to get rid of Christians out of public and political life. There is no doubt they want us out of the medical and educational professions. Will they try and purge the legal profession, too?

For instance, the ACT Labor-Greens Government recently ripped up the 120 lease of Calvary Public Hospital. No consultation. No guarantee of compensation. It was a brazen compulsory acquisition done not according to their Lands Acquisition Act 1994.

The NSW Government recently tried to pass legislation that would force doctors and nurses to participate in abortion by referring pregnant women to an abortion provider. This would have been a direct violation of freedom of conscience.

Again, in NSW, we have seen the passing of Voluntary Assisted Dying legislation giving authority to those in the medical profession to suggest VAD to patients. Note, the patient doesn’t have to initiate the enquiry, the medical practitioners can lawfully raise the issue with the vulnerable.

Lest we get depressed, we should remember a recent fight that ended in success. Catholic Cemeteries prevailed over the NSW Government. Why the different outcome? Catholic Cemeteries were able to demonstrate that they run cemeteries better than anyone else. Most importantly, however, Catholic Cemeteries did some serious ‘street fighting.’ It was Archbishop Daniel Mannix of Melbourne who said:

‘With regard to politicians, forget about reasoning with them. Just hit them at the ballot box.’

That threat of ‘ballot box damage’ shook the NSW politicians. They were given clear indications that their seats were in danger. Suddenly they awoke from woke. Threat of losing their seats jolted them. The ‘street fighting’ worked.

Goulburn School Strike 1962

Did Catholic Cemeteries take their cue from the Goulburn School Strike? In 1962, there were six Catholic Schools in Goulburn, educating over 2,000 students. Believe it or not, one kindergarten class had 84 children in it. One school had inadequate toilets. Auxiliary Bishop John Cullinane thought it best to shut the school down as funds were not available.

700 people attended a public meeting on Monday 9 July 1962. They decided – 560 to 140 – to shut the six Catholic schools down and enroll students in state run schools. On Monday 16 July 1962, 1300 children marched on the state schools, with 640 getting entry by lottery. The strike was to have a duration of six weeks. It lasted a week.

Robert Menzies called an early election for 1964, promising to fund science blocks in all schools – state and private. The age of public funding for private, independent schools began.

Public funding for independent religious schools did exist before the Public Instruction Act 1880, which abolished it.

Three learnings emerge from the incident:

It’s not primarily the (1) bishops, but the (2) baptised, and the baptised need to (3) foster controlled aggression.

Auxiliary Bishop Cullinane played down the role of the episcopate: ‘Not me, the laymen,’ he proclaimed.

Speaking to the 700 people at the public meeting, the Archbishop of Canberra and Goulburn, Eris O’Brien, emphasised the proper and rightful role and mission of laypeople:

‘I respect you as Catholic citizens and intelligent citizens. If you want to use your citizen rights in this way, I am not going to restrain you. Whether it is wise or not, I am not going to intervene. You are making a gesture of protest, and now you have made it, I am going to stand behind you.’

Veteran Catholic journalist, Ken Sully, fills out the picture, observing the wider implications for the Church in Australia:

‘The controlled aggression, the belief in acting for justice, brought confidence. And that because the Goulburn Catholics were winners and showed the rest of the Australian church that it had the capacity to win.’

The Way Forward

Let me conclude with some observations and suggestions.

1. What is our why?

We must clarify why we engage in the public square. If we don’t do this, people will not join us. G. K Chesterton once said:

‘The true soldier fights not because he hates those in front of him, but because he loves those behind him.’

If we lose our why, we lose our way. We are fighting for our children, who are the supreme gift of marriage, and we are fighting for the freedom and fairness (justice) of our land. We don’t hate our adversaries, and our language and disposition must convey this. St. John Fisher famously pronounced:

‘I condemn no one’s conscience: their conscience may save them, and mine must save me. We should remember, in all the controversies in which we engage, to treat our opponents as if they were acting in good faith, even if they seem to us to be acting out of spite or self-interest.’

Commemorating the 100th anniversary of Rerum Novarum, Pope John Paul II wrote Centesimus Annus (1991). He observed:

Leo XIII presents the organization of society according to the three powers – legislative, executive and judicial – representing a novelty in Church teaching at the time. Such an ordering reflects a realistic vision of man's social nature, which calls for legislation capable of protecting the freedom of all. To that end, it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the ‘rule of law,’ in which the law is sovereign, and not the arbitrary will of individuals (CA 44). (Reference to Rerum Novarum, 34)

John Paul II highlights how totalitarian and fundamentalist regimes abuse the rule of law:

Totalitarianism, in its Marxist-Leninist form, maintains that some people by virtue of a deeper knowledge … membership of a particular class … are exempt from error and can therefore arrogate to themselves the exercise of absolute power.

Is this sounding familiar? My word it is. The first iteration of Marxist thought was economic. The second iteration is cultural Marxism. The essence of Marxism, whatever the iteration, is, in my opinion, its delight in victim status. Is this sounding familiar?

The rule of law is foundational for free and fair societies. The case of George Cardinal Pell comes to mind. Just after the High Court of Australia quashed his conviction of child sex abuse by 7-0, Father Frank Brennan was interviewed by Kieran Gilbert. Gilbert asked, ‘Father Frank, what are we to make of the fact that the complainant was believable?’ Brennan answered, ‘It is easily resolved. Yes, the complainant was believable and gave evidence, but so too were the other 23 people who gave evidence to the contrary.’

This most important case reminds us that the rule of law presumes innocence and that it is evidence, not presumption or prejudice, that decides cases.

2. Controlled Aggression

We need controlled aggression (assertiveness). Not anarchy. Not violence. Think the two peaceful revolutions in the Philippines and Poland in the 20th Century. Think the Goulburn School Strike. Think Catholic Cemeteries.

We should be utterly convinced that it is not the role of governments to favour one interest group over another. One of the reasons we have had a free and fair country is because we have taken self-interest and turned it into public-interest. Call it the Australian-Genius if you like. We have found solutions that give everyone a go, not just noisy minorities. I think this is a most important point, one that cannot be overstated. We have been faithful to the rule of law for a long time, but we are on a slippery dip and we must help the country get off it.

3. ‘Two-by-two’

I’m sure you’ve noticed. I’m speaking in the plural, not singular. When Jesus sends out the seventy-two disciples to preach and heal, he sends them out ‘two-by-two’ (Luke 10). ‘Most of life depends on the company we keep,’ but especially when we face fierce winds of opposition. Friendships that are authentic, based on faith and mutual respect, are indispensable in the promotion and defense of fundamental human values.

2050 is just around the corner and before we know it, we will have entered the 22nd Century. What we do now will determine if Australia will continue to be free and fair for future generations.

If we form a collective ego with a common mission, we shall have a lot of fun together and arouse hope, not only in those who believe, but also in those who don’t have faith but are of good will.

Bishop Anthony Percy

19 July 2025