Just a few days ago, Australia paused to remember the 100,000 fallen soldiers who died to protect our freedom.
And in just a few hours, we will learn whether you can be banned from playing rugby for Australia for quoting the Bible.
‘Progress’ is just not what it seems.
While most eyes will be on Israel Folau today, I will be watching Kate Eastman SC. She is Rugby Australia’s representative on the tribunal that will hear the case against our nation’s highest profile rugby star.
Eastman’s decision will have ramifications for all Australian workers. And because of her profile and background (she’s a rock star in the anti-discrimination world), her decision will also set a trend for anti-discrimination matters in Australia.
Most importantly of all, Eastman has been front and centre in drama involving quotations of the Bible before. This is not a novel legal question for her.
Five years ago she represented homosexual activist and serial litigant, Gary Burns, against Victorian grandmother, pensioner and then Katter’s Australian Party candidate, Tess Corbett.
Corbett was facing the former New South Wales Administrative Decision Tribunal for stating (in Victoria) that she did not want gays, lesbians or paedophiles teaching at her kindergarten.
Her barrister, Marcel White, pointed out that if Corbett’s statement was found to be unlawful the decision would effectively outlaw Christian scripture.
The Sydney Morning Herald reported Marcel White’s legal argument this way:
In a 21-page written submission, Ms Corbett’s Victorian barrister Marcel White defended his client’s comments on legal and factual grounds, referring directly to the Bible as supporting evidence.
“This didactic process of bracketing homosexual behaviours with other notorious kinds of immoral conduct has been, not only for politicians, but also for some of the indisputably greatest contributors to Western civilisation’s philosophical understanding of human conduct, a reliably persuasive means of making argument,” Mr White’s submissions state.
“It is no small matter that St Paul of Tarsus, with his foundational Epistles which can easily be said to dynamically shape Australian public and social life to this day … would no doubt be found guilty of impermissible vilification according to the dictates of anti-discrimination jurisprudence as they currently stand…”
Quoting directly from a passage from St Paul’s first letter to the Corinthians in which the saint compares homosexuals to thieves, extortionists and other immoral types, [the] submissions state that such comparisons must be acceptable “otherwise every time a witness swears on a Bible in a NSW courtroom they may be implicitly endorsing the republication of St Paul’s brackets in contravention of the NSW anti-discrimination Act”.
As far as things go, the Sydney Morning Herald pretty much got this bit right. I should know. I was in the room.
History will record that Eastman was able to secure a victory for her client on that day.
It prompted Burns to issue a press release containing these words:
Mr Burns said the ruling would go down in case law and prevent politicians from appealing to the Bible to justify vilification. In a written submission last year, a lawyer for Ms Corbett had attempted to use the Bible as supporting evidence.
“Today’s decision will set a precedent for future cases that not only is vilifying homosexuals illegal, but you can’t use the Bible or religion as a valid legal defence,” said Mr Burns.
It would seem that Burns basically believed he had banned the Bible with the assistance of Kate Eastman’s legal expertise.
He later fired off an email to Malcolm Turnbull, boasting:
I’ve taking a Christian bigot in NSW to court for vilification of homosexuals.
This Christian bigot publishes statement’s…using the Bible as a right to unlawfully vilify and demonise homosexuals.
But history will also show that Burns’ joy was short lived. The ruling has gone down in case law but not for the reasons Burns ever imagined.
I was that ‘bigot’ and the High Court eventually ruled that it was unconstitutional for Burns’ complaints against myself and Corbett to have even been heard (unfortunately that has not stopped him or the Tribunal from proceeding with his complaints and I was back in court on Thursday as a result). Burns told The Australian that:
“I’m like a vicious rottweiler. I’ve got hold of his leg and I’m not letting go until the bones and blood are bare.”
Now, in a strange twist of fate, Kate Eastman sits in judgement over Israel Folau with the power to revive the practical outcome of her former client’s short lived victory over the Bible.
True, she will not rule on whether the Bible should be banned. Instead, she will simply rule on whether it is lawful to deny someone employment or even the ability to play in a sporting match for quoting from the Bible.
For all intents and purposes it’s the same thing.
Which way will Kate Eastman go?
Eastman, to the best of my recollection, did not address Marcel White’s argument about the Bible. And the Tribunal ignored it altogether. It was probably easier to pretend it away than to deal with it. I’m expecting the same in the hearing against Folau as well.
The elephant in the room will most-likely be white-washed with fancy language, legal jargon and sophistry. But everyone will know, one way or the other, what the practical result will be.
But for any insight into Eastman’s mind we cannot really glean all that much from the now unconstitutional judgement in 2014 and the cases in the higher courts shed no light either. They all focused on jurisdictional questions.
And Eastman’s representation of Burns in that matter should not cloud judgement either. Eastman has also represented clients against Burns, including the Nine Network.
Indeed, back in 2010 she told the Tribunal:
“Mr Burns has a particular sensitised view of these issues … he has reached the point where he cannot step back and look at these issues objectively.”
I couldn’t agree more.
So that sheds no real light either.
But the fact that Kate Eastman once claimed that her dream job was to work at the Human Rights and Equal Opportunity Commission, now known as the Australian Human Rights Commission, does not fill me with confidence.
If I was a betting man, I’d throw money on a wager that Izzy Folau will be done and dusted today. It’s likely he will need to double down on the courage he’s already shown if he’s going to see this thing through.
I’d also be betting that after today, more people will find themselves in legal hot water for quoting from the Bible or the Catechism.
But I wouldn’t have to bet that those who fought for this nation are shaking their heads and wondering what it was all for. I deployed three times. And this Anzac Day, as I marched at the local RSL service, I did wonder what it was all for…
The caption on this image at the Australian War Memorial website states:
But Beach, New Guinea. May 1945. Army Chaplain, the Reverend Father John Aloysius Morgan, Senior Roman Catholic Chaplain of the 6th Division celebrating mass prior to members of the Division embarking for the assault on the Wewak Peninsula. His driver batman, Private Leo Franklin, holding a bible and wearing a light coloured shirt, is standing to the right rear of Padre Morgan. Bishop Morgan later became Chaplain General of the Australian Army.