UT H E J O U R T N A L O F TO H E S T T H P O M A S M O I R E S O AC I E T Y VOLUME No. 3 March 2007

the DIAMOND JUBILEE

Cardinals Clancy, Pell and Cassidy concelebrate the 75th Red Mass, 31 January 2005

This special double issue of Utopia Later in the year the Society The Diamond Jubilee celebrations commemorates an extraordinary period marked its Diamond Jubilee as well as culminated in a series of Papal Honours in the life of the St. Thomas More Society. sponsoring, with the NSW Jewish Board conferred by Cardinal Pell on behalf of 2005 began with the 75th celebration of of Deputies, an international ecumenical the Holy See in September 2006. This the Red Mass, which included a special commemoration at the Great Synagogue issue is a permanent record of a number message sent to the Society on behalf of of the 40th anniversary of Vatican II’s of the important homilies and speeches the Holy Father, Pope Benedict XVI. declaration . delivered during these special years.

Below: Cardinal Pell (centre) with the Papal Honour recipients. L to R: Fr B Byron (Chaplain), F J Esler SM (Former Chaplain), The Hon J Slattery QC (Founding Member), A J Reynolds (Former Treasurer), J McCarthy QC (Former President)

1 75th Red Mass Homily St. Mary’s Cathedral, – 31 January 2005 Ezek 36:23-8; Ps 144:8-14; 1 Cor 2:10-16; Lk 4:16-21

The Society’s Patron, Cardinal His Holiness is confident that, inspired , was Principal Celebrant by the radical and complete witness and homilist at the 75th Red Mass. In of Saint Thomas More and sustained honour of the occasion the concelebrants by the truth that is in Jesus Christ (cf. were Cardinal , Emeritus Eph 4:21), this sixtieth anniversary of Sydney, Cardinal Idris celebration will be an occasion for , Emeritus President of all those taking part to deepen their the Holy See’s Council for Promoting commitment to defend the inviolable Christian Unity, Auxiliary Bishop dignity and rights of every human OP, Father Brian Lucas, being – from conception until natural General Secretary of the Australian death – and to promote the common good in accordance with the demands Bishops Conference, and of compassion, justice, and respect for Father Paul Stenhouse. Both Bishop truth. Fisher and Father Lucas were solicitors before commencing their studies in the With these sentiments, the Holy Father seminary. invokes upon all present an outpouring of the Holy Spirit’s gifts of wisdom, The readings were given by Michael Cardinal George Pell light and strength, and he cordially Slattery QC, Senior Vice President of imparts his Apostolic Blessing as a the Bar Association pledge of joy and peace in our Lord and Mr John McIntyre, President of the The Holy Father was pleased to be Jesus Christ. NSW Law Society. The Prayers of the informed that the St. Thomas More The first meeting of the St. Thomas Faithful were read by John McCarthy Society is celebrating the Diamond More Society took place in the presence Jubilee of its foundation, as well as the QC, then President of the Society. The of Archbishop , as he seventy-fifth ‘Red Mass’ on 31 January congregation included Mr Slattery QC’s then was, on 14 August 1945, the eve 2005. He asks you kindly to convey father, retired Supreme Court justice the of that wonderful day when victory was his warm greetings and good wishes to Hon John Slattery QC, who is the last declared in the Pacific and peace arrived the distinguished participants gathered surviving founder of the Society. Richard after the terrible Second World War. Perrignon (Councillor) conducted the for this solemn occasion. A constitution was proclaimed then, choir and Francois Kunc (Secretary) The Church in today is with specific objects consonant with the was Cathedral Cantor at the Mass. faced with the task of fulfilling her evangelizing mission in an increasingly juris praeceptor of the Justinian Code, On this 75th celebration of the Red promulgated by the Byzantine Emperor secularized society. The sense of Mass in the Archdiocese of Sydney, Justinian in 529, “honeste vivere, alterum God and of his loving Providence when we remember too the Diamond non iaedere, suum cuique tribuere” i.e. has diminished for many people, Jubilee of the St. Thomas More Society, “live honestly, do not hurt others, pay with a subsequent neglect of Man’s I would like to begin with these few each his due”. necessary relationship with the loving words of reflection by reading a letter I Creator (cf. Ecclesia in Oceania, 18). More specifically these objects received recently from the Secretariat of In the midst of this challenge the Holy were spelt out as providing members State in the Vatican, sent, and I quote, “to Father encourages the members of the opportunities to understand better the distinguished participants gathered legal profession to recall that “faith the principles of Christian ethics and for this solemn occasion”: in fact has the force to shape culture morality, and their relationship to the itself by penetrating it to its very core” law, to encourage free enlightened (ibid. 20). discussion on these points and their application in every day legal practice.

2 In these discussions over the years Any good system of laws must However none of these relativists can the writings, and the personal and be built upon an honest and genuine consistently follow their constructs to professional story of Thomas More, “the pursuit of justice, on the part of those their logical conclusions. A small story King’s good and loyal servant, but God’s legislators who frame the laws and those exemplifies this. first” have played a prominent part. legal practitioners who have to put these Professor Robbie George’s book The positive laws into practice. Any good He is a worthy model, not merely for has a foreword society is held together by good people C/ash of Orthodoxies the supreme sacrifice he paid, but for his following just laws. written by John J. Dilulio Jr which tells learning, independence and moderation, of a brilliant student in moral philosophy his good humour and loyalty to family This is part of what Ezekiel, one who wrote a passionately argued paper and friends. of the strangest of the Old Testament “There is no such thing as justice”. He prophets, is saying when he has the Lord Legend has it that when they met was failed by his lecturer. Stunned and promising to give his people a heart of together for the first time Erasmus disappointed the student complained, flesh rather than a heart of stone, so that opened by saying “you must be Thomas explaining the considerable work he had God’s laws will be followed. More or nobody”. More replied “and done and that he thought it was a good you must be Erasmus or the Devil!” In ancient times in the Middle East piece of work all peoples experienced human tyranny The scholarly contributions of the The professor agreed saying it was and the extremities of nature more Society’s chaplain Fr. Brian Byron on the best piece of work he had received in regularly and vividly than most of us More are well known, but many lawyers 30 years lecturing; that it was a brilliantly in Australia today. Despite this, and too over the sixty years developed successful and destructive attack on all without ignoring this evil and suffering, professional expertise in his writings legal, moral and religious orthodoxies. Jewish monotheism learnt that God was as well as a personal devotion and In fact, he said, “you persuaded me good, predictable and just. So the refrain reverence. Copies of Holbein’s splendid from Psalm 144 today is that the Lord is there is no such thing as justice, so don’t portrait, now in the Frick Gallery in New just in all his ways. God’s rule lasts from complain”. York, which Anne Boleyn tried to destroy age to age as the Lord supports all who I don’t know whether this story is a but only succeeded in ripping slightly at fall and raises all who are bowed down. regular part of academic legend, but if it the top, are still found in the homes and is, it still bears repetition. offices of Catholic lawyers. The son of It was from within this framework of one Catholic lawyer, not from Sydney I law that Jesus applied the prophecies of Let us continue to pray that justice hasten to add, told me some years ago Isaiah to himself when he proclaimed his will be followed and justice will be done that he thought his father would like a anointing to set the downtrodden free, to in our Australian society. May the story picture of More in every room in the proclaim the Lord’s year of favour. of Thomas More continue to provide house. I was quietly pleased when I was We should pray today that this inspiration and markers to our legislators able to persuade the lad to take John commitment to justice, indeed this and lawyers. May the St. Thomas More Fisher as his confirmation patron. passionate commitment to justice will Society continue to prosper! Robert Bolt’s play and the subsequent never grow cold in Australia, much less May an increasing number of people in the Australian Catholic community. film enlarged More’s circle of admirers, come to realise that faith has a central helping provoke an immense increase of Saint Thomas More understood this place in a well ordered society, that truth Morean scholarship in the , and well. He told William Roper, his son-in- is not always relative and that reason has in 1978, the five hundredth anniversary law and biographer, “If the parties will at long been on tradition’s side in debates of More’s birth, under the leadership of my hands call for justice, then all were it about justice, faith and truth. the then Mr. Justice Slattery, the Society my father stood on the one side, and the sponsored a very successful international Devil on the other, his cause being good, congress here in Sydney. I also found the the Devil should have right.” golden jubilee publication of the Society I find this reassuring, much more “Thomas More – the Saint and Society” reassuring than those who tell us edited by John McCarthy and Anthony blithely that there are no such things as Reynolds full of delightful articles as truth or justice underlying our structures well as providing a wealth of useful of power and our social constructs. information for this sermon.

3 A HISTORY OF THE RED MASS

This article, by Dr Joe Morley, Two letters in the Cathedral archives at Avignon in France (during “The originally appeared in The Catholic record how the practice began. On Babylonian Captivity”) in 1331 by his Weekly. The Society thanks the author December 13, 1930, Sydney solicitor, WJ Bull Ratio Juris. The Rota ceased to and The Catholic Weekly for permission Dignam, wrote to the then Archbishop function in 1870 after the loss of the to reproduce it here. Dr Morley of Sydney, Dr , thus: Papal States but was reconstituted by acknowledges for assistance in research “Your Grace, It is desired by a large Pius X’s constitution Sapienti Consilio the co-operation of Bishop number of barristers and solicitors in of June 29, 1908. From time to time of Wollongong, Dr Paul Collins, Pauline Sydney to see established in this State popes have reorganised the Rota. The Garland (Archivist of the Archdiocese of the time-honoured custom observed by last to do so was John Paul II on April Sydney), staff of the Veech Library and lawyers in Europe, especially at Rome, 18, 1994. libraries of the University of Wollongong Paris and London, of assisting at a Red In France, the first recorded Red and the State Library of NSW. Mass on the opening of the first law Mass was celebrated in Notre Dame term of the year. A meeting has been When the Votive Mass of the Holy Cathedral in Paris in 1245. For centuries arranged for Thursday next (18th inst) Spirit – commonly known as The Red later it was celebrated in the chapel of the of the Catholic legal profession for the Mass – was celebrated in St Mary’s Order of Advocates commonly known purpose of discussing this matter; but Cathedral in Sydney, the celebrant as Sainte Chapelle - The Holy Chapel before calling upon the profession to (George Cardinal Pell) and the - (originally within the Royal Palace lend their support to the project, we congregation re-enacted a rite with its complex now the Palais De Justice area, should like to feel that we would have in origin in the European Middle Ages. The close to Notre Dame Cathedral). King this respect the guidance and approval celebrants wore the scarlet vestments (Saint) Louis IX - among other things of Your Grace.’ recalling the tongues of fire of the Holy the patron saint of architecture - had the Spirit, who is invoked by the singing of On December 20, Dignam received Sainte Chapelle built between 1243 and the most famous of all hymns (the Veni, this reply: “Dear Mr Dignam, His Grace April 25, 1248, and consecrated the next Creator Spiritus) to bestow wisdom and the Archbishop replies to your request day, to house alleged sacred relics of justice upon those present and, as with of the 13th inst for his approval of a Red Christ’s Passion (the Crown of Thorns, the scarlet robes of cardinals, signify the Mass on the opening of the first Term part of the True Cross and other items wearer’s willingness to defend to death of the year. The proposal is very much associated with the life of Christ) which the truth conveyed by the Holy Spirit. appreciated by Michael, Archbishop he had redeemed at a cost of 135,000 The scarlet and ermine-trimmed robes of Sydney. After you have had your livres in 1239 from the Venetians to of the assembled judges of the Supreme proposed meeting of the Catholic whom his cousin Baudouin II, Emperor Court replicated those worn by the members of the Legal Profession, you of Constantinople, had pawned them. judges of the Sacred Roman Rota, the can lay before His Grace more concrete The chapel cost 60,000 livres. Lord High Justices of England, Peers proposals in regard to the details of time, The chapel was damaged by fire in of the House of Lords, Doctors of Law place, etc. Personally I will be only too 1630 and 1776 and desecrated during wearing academic scarlet robes and pleased to assist the project in every the French Revolution when the shrine hoods in the Middle Ages and today. way. Yours faithfully, Archbishop’s for the relics was melted down and the Secretary.” The Freeman’s Journal of In various locations, invitations to relics scattered. Some were recovered February 19, 1931, reported that the first the Mass differ. While in some places and stored in the church of St Germain Red Mass “for the law community” was they are restricted to judges and court L’Auxerrois (on the Right Bank, near held at St Mary’s Cathedral on February officials, in others they include canon the Louvre). They are now kept in the 16, 1931. lawyers, all sectors of the justice system, Treasury of Notre Dame Cathedral. the legislature, the diplomatic corps, law The Red Mass appears to have been Used to house the Justice Archives from professors and lecturers, law students celebrated for the first time in Europe 1832 to 1837, the chapel was restored and the civic administrators. in the 12th century. It is possible that by Louis Phillipe between 1837 and The Red Mass is celebrated annually it was celebrated in Rome by the pope 1868 and dedicated exclusively to the in St Mary’s Cathedral at the beginning of the day for the judges of the papal celebration of the Red Mass. of the Law Term. courts that preceded establishment by Pope John XXII of The Roman Rota

4 In 1906 the French Parliament was first celebrated either in St Stephen’s the United States since Harry Truman, secularised the chapel and forbade Chapel in the Palace of Westminster including Jimmy Carter, Ronald celebration of the Red Mass in it. or in Westminster Abbey before its Reagan, Bill Clinton and the incumbent, However, the Red Mass was transferred destruction in the 13th century. George W Bush Jr, who attended for the first time in 2006, accompanied by then to the church of St Germain L’Auxerrois. It was held then as now at the newly-appointed Catholic Chief Justice In France the Red Mass is also celebrated opening of the Michaelmas Law Term. of the Supreme Court, John G Roberts, in honour of St Ivo (in English St Ives) As Westminster Abbey is no longer a a number of justices of the Supreme the French patron saint of lawyers, while , the Red Mass is now Court, Secretary of State Condoleeza in England and other English-speaking celebrated at Westminster Cathedral, Rice, heads of state departments, law places such as Australia, the United presided over by the Catholic Archbishop professors, lawyers and representatives States and Canada, St Thomas More, of Westminster, while non-Catholics of evangelical and other religions. also a patron of lawyers and politicians, hold a service in Westminster Abbey. is honoured. Controversy about the constitutional The first Red Mass in the United standing of the Red Mass in the US The exact date of the first Red Mass States took place in St Andrew’s was aired in an episode of the popular in England is not known. Some writers Church in Duane Street, New York, TV drama The West Wing and in an say that it was celebrated in Westminster near the courthouses in Foley Square, episode of Law and Order. To maintain Abbey in 1310 in the reign of Edward I, on October 6, 1928. The annual Red the separation of Church and State, all the English “Justinian”, a title bestowed Mass in St Matthew’s Cathedral in those who attend the Mass do so as on him because of his fame as a law Washington DC, was first celebrated individuals, not as representatives of the giver, which is absurd as Edward died in 1953. The Red Mass (in some cases law and administration. on July 7 1307. However, it is now in St Patrick’s Cathedral in New York) generally believed that the Red Mass has been attended by all presidents of

The 75th Red Mass. L to R: The Hon JJ Spigelman AC, Chief Justice NSW; Fr Neil Brown, Dean, St Marys Cathedral; Assembled Judges.

5 Thomas More and the Crisis of Modern Law

If More had not commissioned For the means by which much of the Hoblein to paint his family’s portrait in Henrican program was achieved, such as 1527, it is unlikely that Henry VIII would declaring the King-in-Parliament to be have encountered the artist, in which the supreme source of law, contributed case some of the Tudor monarchy’s to destroying the idea that there was a most powerful images would have been universal law of Christendom to which unknown. Likewise, More’s legal skills even kings were subject, and to which been underlined, most notably when More appealed so eloquently at his he turned his own trial from being a trial. foregone conclusion into a damning Since More’s time, of course, it public indictment of not only Henry seems clear that the Western legal VIII and his policies, but also of those tradition has slowly slipped away from who acquiesced in the Tudor monarch’s its Christian moorings, and has evolved blatantly illegal actions. Dr Samuel Gregg into something quite different. I say More, we ought to recall, was able “evolved,” because the changes have to achieve this because of his profound been gradual, sometimes in such subtle grasp of the law which, at the time, was ways that we are surprised when their On 21 June 2005 Dr. Samuel Gregg, profoundly influenced, synthesized, full impact becomes apparent. Director of Research at the Acton and to varying extents codified by the Institute in the United States delivered How, for example, could it be that a Catholic Church. Thus it was that More the Patronal Feast Day address. document of fundamental European law, was able to explain that the English such as the now-dead 511-page European In 2005, almost 500 years after his Parliament could not claim to legislate Constitution, deliberately excluded martyrdom, it is difficult to imagine that for that part of the Church that happened any reference to Christianity’s decisive there is much left to be said about Thomas to be in England; that it could not make contribution to the formation of Europe’s More. Alongside the numerous honors laws that defied the universal and known understanding of law and constitutions? laws of Christendom; and that it could accorded him by a grateful Church, How is it possible that the language not make laws that conflicted with its countless books and articles have been of rights, unquestionably Christian in own legal guarantees of the Church’s written which cover his entire life and its genesis, is now employed in law to liberty from royal power, such as those thought. As well as being recognized allow lethal force to be used against contained in Magna Carta – unless, of as one of the leading classical scholars human beings who are, in terms of their course, the English Parliament wanted of his time, More’s friendship with that fundamental human identity, as fully to change fundamentally the nature of other well-known Christian humanist, human as everyone here this evening? law. Erasmus, is well-documented. More’s How is it possible that the legal principle book, Utopia, is universally regarded as For the end of Thomas More’s life of the sanctity of life has been slowly a work of genius, despite the fact that was more than an instance of heroic replaced by such nebulous concepts such perhaps a majority of commentators do Catholic martyrdom. As he mounted the as quality of life and what amounts to the not understand it. scaffold in 1535, More knew that much promotion of autonomy as the supreme more was coming to an end than simply trump-card of legal argument? How is it Most of More’s written work, of orthodox Catholicism’s reign in England. possible that, just over 100 years after course, was directed against the heretics More understood, perhaps better than the abolition of slavery, that the law in of his time, and many have come to anyone else at the time, the extent to most of the West has effectively codified realize that his critique of Luther is which Henry VIII’s policies concerning the fiction that there are human persons equally applicable to many contemporary his faux marriage to Ann Boleyn and his and human “non-persons,” with fewer dissenting Catholic theologians. Even promotion of the theological absurdity and fewer restrictions existing on the More’s contribution to the arts has been that the King of England was head of the manipulation, cloning, dismemberment, recognized. Church in his realm, paved the way for and termination of the latter? nothing less than a legal revolution.

6 How is it possible that in a number This flows, in part, from a widespread There is no going-back to the of jurisdictions, the anthropological ignorance or misunderstanding of the Christendom that Thomas More knew impossibility of homosexual “marriage” idea of natural law which prevails so well. History is not, and can never be is now receiving judicial fiat even before among many Catholic lawyers, some of static, not so long as human beings – as legislatures consider and vote on such a whom have been taught the new gospel, the Catholic Church almost alone today question? How is it possible that Dutch as I was, that serious jurisprudence only insists – possess the unique capacity courts could agree that it is legal for began in 1971 with the publication of for reason and free will. Moreover, doctors to intentionally kill babies born John Rawls’ A Theory of Justice and we know that there can be unexpected with disabilities who, in the doctor’s that nothing written beforehand was opportunities to erect new edifices upon opinion, will not enjoy an adequate worth our attention. Indeed, in most the wreckage of the old. Less than 100 “quality of life?” law schools today, including perhaps years after Thomas More’s martyrdom, a majority of American Catholic law All of these questions should make us for example, Catholic theologians schools, natural law is treated as a quaint rather less than relaxed and comfortable. and lawyers such as Francisco Suarez relic from medieval times, if mentioned They should also be causing us to ask and Bartolome de Las Cases laid at all. A particularly low point in ourselves why many Catholics, not the foundations for a new theory of Catholic discussion about natural law to mention the cultures in which we international law that was embraced and its applicability to the formation of live, move, and have our being, have positive law came in 1989 when the late- by both Catholics and Protestants in a become so anesthetized to the legal Cardinal Joseph Bernardin suggested in Europe that had been split by the 16th sanctioning of practices for which the a speech that Catholic lawyers ought century religious schism. criminal regime of Nazi Germany was to adopt the natural law theory of justly condemned. Why is it that so Perhaps something similar is Ronald Dworkin. See Cardinal Joseph few people recognize, including many happening today with the resurgence Bernardin, “Seeking a Common Ground Catholic jurists and lawyers, that the of natural law theory, predominately on Human Rights,” DePaul Law Review prevalence of phrases like “the priority of within the English-speaking Catholic 36 (1987): 159-165. autonomy” or “a reasonable consensus” Church. Figures such as Russell in contemporary legal discourse reflects Leaving aside the fact that few legal Hittinger, Robert P. George, and John changes in the nature of law in the philosophers have been as assiduous as Finnis have produced a formidable West that Thomas More would have Professor Dworkin in working for the body of work that has attracted much found incomprehensible. Perhaps the legalization of such things as abortion, attention – and in many instances, biggest change in the West has been the euthanasia, and so-called homosexual approval – from Catholics and non- replacement of a distinctly Christian “marriage,” no serious analysis of Catholics, precisely because it offers ethic with that of a secularist humanism Dworkin’s thought would conclude a principled and reasonable way of that is incapable of morally vindicating that that his ideas accord with authentic thinking about law and a serious anything save by reference to autonomy natural law theory. Then there is the sad alternative to the rights-talk and or preferences. In other words, the rule fact that some of the more well-known obsession with autonomy that dominates of law – which both Thomas More and Catholic lawyers in America, such as most Anglo-Saxon jurisprudence today. Thomas Aquinas clearly understood as the late Justice William Brennan, not the rule of right reason over the passions to mention the infamous Fr. Robert But before their ideas take root – continues to be increasingly subverted Drinan, S.J., have contributed in many among Catholic lawyers today, it seems by the rule of men. of their decisions to the law’s increasing to me necessary that another difficulty embodiment of what both John Paul the has to be confronted, this time within the In both Australia and the United Great and Benedict XVI have accurately Church. It involves the tendency among States, though to a lesser-degree in the and poignantly described nothing less some Catholics today to draw contrasts UK and Ireland, Catholics and other than as a culture of death. between the Church of love and the Christians have become more attentive to these difficulties. It is, however, When thinking about how to respond Church of law. For this argument in this true that, until relatively recently, to this crisis in law, the response of some paragraph and the following, see Joseph contemporary Catholic reflection upon Catholic lawyers is either despair, silent Ratzinger, “Crises of Law,” Address at the nature of law was in a spectacularly acquiescence, or a call to return to the the LUMSA Faculty of Jurisprudence in bad shape to meet such challenges. past. None of these responses, to my Rome, 10th November, 1999. mind, seem adequate.

7 In this scenario, law – especially the As Thomas More stressed in his last It involves believing that modern moral law – is seen as “repressive” and writings, faith and reason, grace and men, modern women, modern lawyers, “constraining”, to use the contemporary nature, law and love are not opposed, and modern judges can, for all their language of therapy-speak, whereas love but rather are intimately connected. experience of choice, still recognize is essentially reduced to the secularist As Benedict XVI once wrote, “where their own worth in each other’s eyes, lexicon of sentimentalism and sincerity there is no law, even love loses its vital still know what is true and good, and but above all “non-judgmentalism” context.” Ratzinger, “Crises of Law,” still choose truth, good, and excellence. – except, of course, severely negative 10th November, 1999. The Catholic It involves believing, as Thomas More’s judgment of those who insist that Faith, as professed by as eminent a entire life testifies, that self-mastery, Christian love and authentic Christian lawyer and Catholic as Thomas More, not self-assertion, is the index of a truly human freedom, a liberty that remains moral teaching are inseparable. The does not seek to supplant the law of possible no matter how pulverized human separation of Christian love and the land. Our Faith should, however, existence has become in a world that Christian moral law was, incidentally, an motivate Catholic lawyers, as citizens of increasingly measures people according explicit part of Luther’s early theological the City of God, to ensure that the law of to their political, medical, or sexual arguments, its anarchical implications the City of Man affirms human dignity utility to us. It involves believing that were noted by Thomas More, and its and resists the steady encroachments it is possible to build a true humanism effects were realized in the bloodbath of of the cold, harsh utilitarianism that in which neither moral truth nor the law the German Peasants Revolt. increasing corrupts and calcifies human are seen as limits on our freedom, but In its Pastoral Constitution Gaudium hearts, human reason, and human law. rather is understood as making us free et Spes, the In the end, of course, it is easy to and enabling us to live our freedom invited Catholics “to impress the become discouraged about the prospects towards its goal, which is happiness: the divine law on the affairs of the earthly of affirming this view of law in the happiness that comes from transforming city.” Second Vatican Council, Pastoral conditions of the modern world. Our ourselves from the persons-that-we are Constitution on the Church in the Modern modern world, new in good and new into the persons-that-we-ought-to be. World, (1965), No.43. in evil, is, after all, a world which often References: As no less an authority as Thomas More denies our dignity by telling us that we Cardinal Joseph Bernardin, “Seeking a would agree, there is much room for are nothing but a sex object; nothing but Common Ground on Human Rights,” Depaul Law Review 36 (1987): 159-165. prudential judgment about how this is a consumer good; nothing but a material Joseph Ratzinger, “Crises of Law,” Address done. The choice not to work towards to be manipulated in the laboratory; and nothing but an instrument to be used and at the LUMSA Faculty of Jurisprudence in this end, however, is contrary to the Rome, 10th November, 1999. discarded, a freak of evolution created Catholic Faith. The Catholic Faith goes, Second Vatican Council, Pastoral Constitution by accident and doomed to eternal of course, beyond the realm of strictly on the Church in the Modern World, Gaudium extinction. In such a world, the prospects human reason and directs our minds to et Spes (1965), No.43. for affirming human dignity through the contemplation of higher truths about George Weigel, Witness to Hope: The Biography law might seem bleak. human freedom, human dignity, and of John Paul II (New York: Harper Collins, 2001). human communion. Faith, however, in For those who desire, however, to the Divine Creator is inseparable from apply the implications of human dignity faith in his Son the Redeemer. Christ’s to the law, there is no alternative to redemption of us does not dissolve engaging this modernity. Humanity has God’s creation or the moral law that gone through an irreversible gate from He has imprinted upon it. Rather, which there is no return. Here the author Catholic Faith holds that our Redeemer draws upon George Weigel, Witness to has restored for us the possibility of Hope: The Biography of John Paul II (New York: HarperCollins, 2001), p.490. better comprehending this natural law The call for human law to recognize the and thereby better understanding the dignity of all human beings in such a foundations of human law and the forms world is a call to the modern world to it ought to take. be open to a modernity in which human beings are recognized as greater than modernity ever imagined.

8 Rediscovering Vatican II and Interreligious Dialogue

On 20 October 2005 the Society, John Paul II himself, a high point and with the NSW Jewish Board of consummation of what Nostra Aetate Deputies, sponsored an international has meant for Jewish-Catholic relations; commemoration at The Great Synagogue and then share with you some thoughts of the 40th anniversary of Vatican II’s about the future. It was my privilege to Nostra Aetate. This was one of the accompany Pope John Paul II on his most important ecumenical events held visit to Israel in March 2000. It was in Sydney. The evening was chaired by most appropriate that the background to the Governor of New South Wales, Her Cardinal Kasper’s address this evening Excellency Prof Marie Bashir AC. Two was a view of the late Pontiff at the speakers were present in person: Rabbi Wailing Wall in Jerusalem. As I stood there a few steps behind the Pope and Raymond Apple and Cardinal Cassidy. saw him place in the Wall a copy of the Pre-recorded video addresses were also Edward Idris Cardinal Cassidy prayer asking pardon “for the behaviour delivered by Cardinal Emeritus President of those who in the course of history have in the Vatican and Rabbi David Rosen Pontifical Council for Promoting caused these children of yours to suffer” from Jerusalem. Christian Unity that had been offered in St. Peter’s Firstly, I wish to express my deep Basilica a couple of weeks earlier on gratitude to the St. Thomas More Society Two thousand years of hostility behalf of the whole world-wide Catholic and the NSW Jewish Board of Deputies on the part of the Christian world to community, I felt that I was witnessing for having made this evening possible. the Jewish people, culminating in the the close of 2000 years of a sad and tragic It was their idea to commemorate in a great crime of the Shoah or Holocaust history and the confirmation of the new special way the fortieth anniversary of have, thanks to that declaration and era of cooperation and understanding the Second Vatican Council document the efforts to implement its teaching, that dawned with the promulgation of Nostra Aetate, and then to make this brought us here this evening in this Nostra Aetate. That moment, together the occasion for the launch of my book, Great Synagogue, which is so close to with the visit to Yad Vashem two days Rediscovering Vatican II – Ecumenism St. Mary’s Cathedral, yet it has only earlier, where I carried the wreath for Pope John Paul II to lay on the memorial and Interreligious Dialogue. A very recently that the communities these to the victims of the Shoah, will remain special word of thanks to John McCarthy buildings serve have come to be so close always among my most cherished QC and David Knoll for their part in the to each other. memories. organization of this evening. To have our None of the progress made in this State Governor preside at this function is relationship, or in the others dealt with Turning to the future, I share Cardinal a signal honour for me, not only because in my book, could have been realised Kasper’s comment that “we are truly at of the high position that she fulfils so without the ready and courageous positive the beginning of the beginning”. The graciously, but also for the fact that she response of outstanding leaders of the way is now open for us to consolidate is so greatly loved and admired by the other Christian, Jewish, and Muslim our gains by ensuring that our Jewish people of this State. communities, to the new approach of and Catholic communities are informed the Catholic Church. Our presence here and educated in accord with the new The offer of having this launch here tonight is a further example of that spirit spirit that has been created, a spirit of in The Great Synagogue of Sydney has of cooperation and trust, and I express friendship, mutual respect, cooperation given new significance to the launch my warmest appreciation for that to the and understanding. We all know that of a book that traces in some detail the Senior Minister, Rabbi Jeremy Lawrence much more has to be done in this field in wonderful story of Jewish-Catholic and to his predecessor and good friend, both communities. But we must not be relations since the historic Council Rabbi Raymond Apple. satisfied with that, for we have so much declarations in Nostra Aetate. in common that we can offer together to Before I say a few words about my a troubled world. book, I would like to speak briefly about what was, for me, and I can say for Pope

9 We have the same God, our moral The book therefore consists of two In genuine dialogue individuals and values have the same source in the sections, the first on Ecumenism and the religions clarify their own identities as Torah or Old Testament of the Bible, second on Interreligious Relations. In they explore similarities and differences we have the same understanding of this writing the second section, I was faced with others. world in which we live, our “new spirit with the fact that, while the Vatican From my own experience as President of friendship and caring for one another Council considers Catholic-Jewish of the Pontifical Council for Christian may be the most important symbol that relations in a special number of Nostra Unity and of the Holy See’s Commission we have to offer to our troubled world” Aetate dedicated to Interreligious for Relations with the Jews, and as a (ILC meeting Prague 1990 – page 195 relations in general, following on the member of the Pontifical Council for of my book). Council Pope Paul VI, at the request Interreligious Dialogue, I not only learnt of Cardinal Bea, entrusted Catholic- Preceding speakers have given much, but was also greatly enriched. As Jewish relations to the Secretariat an introduction to my book and an Pope Paul VI once stated, “true dialogue of Christian Unity and not to the appreciation of my work. It has been is an exchange of gifts”. Secretariat responsible for relations for me a work of love. Like every love with other Religions. My solution was The volume that is launched this story, the preparation was at times very to deal in the second section of my book, evening is a proof of this. Open and demanding and provided its challenges on the chapters on the implementation honest dialogue has led us along new and difficulties. Despite some health of the Council decrees and the present paths, from hostility or indifference, problems, I was able to finish the State of the Question, with a) Religions to understanding and appreciation, and work on schedule and am pleased that other than the Jewish Religion and b) more recently to cooperation and joint this is the first of the series of eight Catholic-Jewish Relations. initiatives in favour of common values, volumes on Vatican Council documents peace, justice and the protection of being published by Paulist Press to It might seem strange to include in our environment. That we continue to commemorate the fortieth anniversary one volume ecumenism, interreligious advance is important for the challenge of the close of the Second Vatican dialogue in general and Catholic-Jewish that is common to all who see themselves Council. relations, and yet they all have much in as children of Abraham, namely to work common. The progress in each of these In my case, the aim was to revisit together for the good of our society, to fields is based on a common approach. and, as it were, re-discover the two heal a broken world. Inspired by the principles proposed Vatican documents Nostra Aetate on the by the Second Vatican Council, the Thank you all for your presence here Church’s relations with other great World Church set out to enter into dialogue or this evening, and may God be with you Religions and on discussions, to listen, learn and explain. all. the Church and Christian Unity.

40th Anniversary of Nostra Aetate commemoration at The Great Synagogue

10 76th Red Mass Homily St. Mary’s Cathedral, Sydney - 30 January 2006 Kings 3:5,7-12; Ps 118; James 3:3-18; Lk 17:7-10

Our lives become engaged with God The Lord’s response is given, “Since “who did not cling to his equality with you have asked for this and not asked God, but emptied himself to assume the for long life for yourself or riches or the condition of a slave and became as men lives of your enemies, but have asked are”, as St Paul puts it in his letter to the for a discerning judgment for yourself Philippians (2, 6-7). …. I give you a heart wise and shrewd Thus we Catholics from the very as none before you and none will have beginnings of the Church celebrated the after you”. mystery of Christ each Sunday, or the And so history and common speech Lord’s Day. Through the Mass our lives, will acknowledge the Wisdom of lived week by week, are brought into the Solomon. mystery of Christ. Each Mass is an act of And what is wisdom? It is a natural worship on our part – we acknowledge gift in some, born of an insightful mind, God as the author and sustainer of our a sense of truth, and the product of being. We humbly recognize that all is experience. Our Christian tradition also from him, and he deserves our praise speaks of it as a distinctive attribute of and thanksgiving. We join the angels God that can be shared with us. Divine in acknowledging the greatness and Wisdom. St Thomas Aquinas thought wonder of God – “Holy, holy, holy, Lord that though a good mind can give you Bishop God of power and might”. knowledge of divine things, God’s Each Mass is an offering of ourselves supernatural gift of wisdom makes your and a placing of our lives before Almighty mind divine (ST 2-2, 45, 2). Thomas The Principal Celebrant and homilist God. And knowing the poverty and does not mean you become like God, at the 76th Red Mass was Bishop Julian frailty of our human condition we come but he means that with the divine gift Porteous, Auxiliary Bishop of Sydney. seeking from the Father of All the grace of wisdom you feel at home with the The setting of Psalm 118 used in the of strength, guidance, peace. Amidst divine. You accept the divine perspective liturgy was specially composed for the the trials and strains of life we take readily and you now see the world in a occasion by Justice George Palmer of an opportunity for refreshment to our literally different way - you see things the Supreme Court of NSW. spirits, for encouragement to faithfully now through God’s eyes. fulfill our tasks, and at times for healing For a Catholic key moments are of hearts damaged by the pains of life. Accepting this divine gift of marked by the celebration of the Mass. wisdom means developing a particular Key moments, like, of course, our Each Mass is a moment to bring sensitivity towards truth, and a distaste First Communion, our Confirmation, ourselves in our humanity, full of the for falsehood and deception. Wise men Marriage, and our Funeral. The Mass, struggles and weaknesses, into the and women find truth comes as naturally each Mass, engages our lives with the crucible of redemption – the mystery of to them as good food and clean air - the death and resurrection of the Lord. mystery and grace of God. Each Mass and falsehood is as repulsive to them is a transcendental moment – earth and Divine Wisdom as rotten meat and foul stench. People heaven unite. Christ, Son of God, Word At the commencement of the Law often explain law by appeal to the great made flesh, who suffered, died and rose Term of 2006 may I reflect with you upon cardinal virtue of justice, but justice is again, becomes truly present amongst a theme proposed by the First Reading. meaningless unless it is an attempt to get us, according to his own words. “He Solomon humbly asks of the Lord, “Give to the truth. People who are not wise can who eats my flesh and drinks my blood your servant a heart to understand how of course know all sorts of truths, but lives in me, and I live in him”. to discern between good and evil, for wisdom means seeing how all these who could govern this people of yours truths fit together as parts of the divine that is so great”. It is a gift I am sure all plan, and, indeed, having an absolute of us would want to ask for. love of the truth.

11 Of course, knowing the truth always These are not bad people: they really The path of Wisdom will not always has an effect on action; truth does not believe that this is what we ought to be a popular path, but is it our great task stay in the mind: it lives through our do. But of course these same ideas have and responsibility. words and actions. The greatest Catholic been used internationally to justify Today, in this Mass as we bring our thinkers have asserted, often against the most abhorrent acts and policies, lives and our service in the law before a hostile world, that our individual and to justify the worst negligence God, we can make young Solomon’s and social actions are not to be aimed towards human beings and timeless prayer our own: “Give your servant at pleasure or utility or personal moral values. Instead, Catholic teaching a heart to understand how to discern convenience but at truth. asserts that social and legal action is between good and evil”. to reflect the truth about the human This is not an easy thought to person and to communicate that truth uphold today, but it is crucial. Whole throughout society. Whether in family generations of young people grow up law, criminal law, stem cell research, – and enter professions such as the abortion legislation, IR legislation or law – believing that we should act for wherever, good law does not rest with whatever is most socially useful, or enabling what people find agreeable or has mass community endorsement, or convenient: it seeks out the truth about is convenient, or gives great pleasure. the person and upholds that truth even in the face of community indifference, even in the face of community hostility.

The pastoral nature of Church law and marriage: reflections on the address of Pope Benedict XVI to the Roman Rota, 15 February 2006

On 25 May 2006 the Society began My approach today will be discursive what it is hoped will be regular breakfast rather than academic and my aim is to seminars. The first such meeting was use the Pope’s address to draw out some addressed by a distinguished canon aspects of the Church’s understanding lawyer in the Archdiocese of Sydney, of marriage and the role of canon law in Rev John Doherty, BTh, DCL, PhD. protecting these doctrinal values. Introduction As a canon lawyer, I represent a I would like to thank the Saint Thomas different system of law as compared to More Society for the invitation to speak the common law system and a secondary today, which came to me through your aim today will be to point out some president, Greg Smith. In advance of comparisons to our civil understanding today’s presentation, the Society has of marriage. In drawing your attention to some similarities and differences in made available to you an address of the two legal systems, perhaps both may Pope Benedict XVI given to the Roman come into a clearer focus. Rota on 15 February 2006 and I will use this address as a reference point for my reflections today on the pastoral nature of Church law and marriage. Rev John Doherty

12 The Pope’s address, while having a In the 2006 Rotal address, Pope When the Code of Canon Law, rather precise focus, contains references Benedict refers to previous Rotal drawing on the Church’s dogmatic to some important aspects of marriage addresses of John Paul II and the key teaching on marriage, describes marriage as the Church understands it and to doctrinal themes of those addresses (the in canon 1055, it describes all marriage the canon law on marriage. Indeed, pastoral nature of law in 1990 and 2005, and then goes on to say that Christ has the Church’s canon law and its legal and the indissolubility of marriage in added something to this natural reality structures are at the service of and the 2000 and 2002). by raising the marriage of baptised protection of the institution of marriage. persons to the dignity of a sacrament. The central theme of the 2006 Rotal They are meant to protect the truth about address In fact, Church marriage law is a marriage, which is part of the divine The Pope’s theme in his 2006 blend of divine, natural and positive revelation handed on by the Church. address is not an easy one. It explores law and must be understood and applied The Roman Rota the relationship between the pastoral accordingly. An example of divine First, I will say something about the needs of a party who seeks a declaration law is the teaching of Jesus about the Roman Rota and its role in fostering of nullity of marriage before a Church indissolubility of marriage which is given expression in canon law (e.g., the pastoral nature of Church law and Court and the role and function of canon 1056 of the Code of Canon Law). marriage. The Roman Rota is a Court of the Tribunal itself, specifically those The natural law on marriage is expressed the Holy See; if you will, it is the Pope’s laws and procedures that govern the in several areas of Church marriage law, own Court – or “Tribunal” – and the Tribunal’s adjudication of the validity such as the fact that marriage is between of a particular marriage. great majority of the cases heard at the a man and a woman (canon 1055). Rota are marriage nullity cases. These often seem to be in conflict, These laws based on divine or as many of the faithful are seeking a The Rota has a very important role to natural law cannot change. An example declaration of nullity so as to be allowed play in the application of the doctrine of of a positive law that is not divine to go to Holy Communion and seem marriage in particular cases and how these or natural is the law on the form of doctrines are to be given legal weight in frustrated by the obstacle of juridical formalities. The purpose of law is, marriage: for validity, marital consent other Church Tribunals. In other words, must be exchanged before a priest and the Rota’s jurisprudence, developed ultimately, the salvation of souls but these juridical formalities seem at odds two witnesses. This, of course, could as the law is applied in these cases, is change. a benchmark for other Tribunals. This with this pastoral dimension of the law point brings to me the first difference and may even frustrate it. The indissolubility of marriage in our legal systems. Church Courts are In dealing with and resolving this One element of this doctrine is not hierarchic as are our civil courts. “false opposition,” as the Holy Father the indissolubility of marriage. All It may surprise practitioners trained in describes it, he develops some doctrines marriages are indissoluble, and Christian the common law system to learn that a about marriage and even the procedural marriage, to quote canon 1056, “takes Second Instance Court is not a superior law used in determining its validity. on a special firmness in virtue of the sacrament.” The Pope observes that court in the way that a Court of Appeal The Church’s canonical doctrine “this truth is sometimes obscured in may be in Australia. However, there is a of marriage the consciences of Christians and of sense in which the Rota influences other The Church’s canon law on marriage peoples of good will.” The language Tribunals; the Church’s position is that flows from and reflects its dogmatic here is nuanced but the meaning is clear. the “lower” Courts are to be guided by teaching on marriage. It is important the doctrines of marriage of the Rota to understand the relationship between Indeed, it could be argued that very few – its jurisprudence. The Pope’s annual canon law and doctrine. Law always Australian Catholics, perhaps through address to the Rota, in turn, gives him follows doctrine and the various no personal fault, truly adhere to the the chance to deal with doctrinal and commentaries on the Code of Canon doctrine of indissolubility as the Church procedural themes that will influence Law will point out the sources of the understands it. the practices and decision-making of law. This is where the Church’s doctrine the Rota and, indeed, all Courts that The Church’s doctrines about and legal practice diverges from most deal with marriage nullity. Over many marriage have many sources, including civil legal systems. For the Church, years, these addresses have collectively divine and natural law. There is an marriage is both intrinsically and advanced the doctrine of marriage and explicit reference to this when the Pope extrinsically indissoluble; that is, it jurisprudence pertaining to marriage. refers to marriage’s “twofold natural and cannot be dissolved by the parties or any sacramental dimension.” other human power.

13 In Australia, marriage is only Another doctrine, one that is not However, the real defendant is intrinsically indissoluble; it cannot be explicit in the Pope’s address, is that the marriage bond itself, now being dissolved by the parties but the State marriage is between a man and a woman. impugned by the party seeking the can dissolve it. Underpinning the two This is being debated in many countries, declaration of nullity. Here the Pope approaches are different doctrines including our own, but for the moment refers to the role of the Defender of of marriage: the Church teaches the Australian civil law doctrine is the the Bond, which, as he points out, is a indissolubility, and the State stability same as that of the Church. It goes relatively recent innovation in these but not indissolubility. without saying that, if Australia does cases (1741). move to allow same sex marriage, the While the Church in some matters The defence of the bond provides the Church will be in the same position as it defers to the State (see canon 1059), necessary “dialectic” in the proceedings. is with the dissolution of marriage. it does not concede to civil society, or The Defender’s role is a reminder that any human entity, the power to dissolve Procedural law in defence the Church is, in a sense, one of the a marriage. What does the Church of marriage parties in the case and the Tribunal’s concede to the State? It concedes things The Pope now takes up the matter role is to protect and even foster that do not touch on the essentials of of procedural law in detail. In doing so, marriage as a service to the Church. The marriage, such as property rights and he affirms the role of procedures, those standard of proof in canon law is called custody, or what name a married woman “juridical formalities” which seem to “moral certitude,” which is similar to may choose to use, and so forth. some to frustrate the pastoral role of the “beyond reasonable doubt” standard canon law. of criminal cases in the common law However, the Pope does say that system. If a Tribunal cannot reach moral the institution of marriage, which One point that he makes forcefully is certitude, then the case must be resolved “establishes the institution of the that, in a marriage nullity case, the trial in favour of the marriage bond (canon family”…“deeply concerns the Church is not against the other party. One of the 1060). This dialectic aims at ascertaining and civil society.” parties petitions for a decree of nullity the truth about a particular marriage. and the other party is always summoned to appear. This is a matter of justice and is intended to reach the truth in that particular case.

Nostra Aetate Commemoration. l to r: Sir Nicholas Shehadie; David Knoll, President, NSW Jewish Board of Deputies; Rabbi Jeremy Lawrence of The Great Syngogue; Her Excellency The Governor; Cardinal Cassidy

14 However, this creates a dilemma Their purpose is to help the Tribunal Indeed, the Pope calls for an for people who work in Tribunals who reach the truth about the validity of a adherence to the procedural integrity of are easily touched by the sometimes particular marriage. In fact, the Pope the process. This is not to frustrate the wrenching stories of those who come states that the love of truth is where party, but only the truth truly serves those to the Tribunal and may struggle to put canon law and pastoral ministry meet. who are seeking a declaration of nullity. the search of truth, which may suddenly The Holy Father here speaks of the Not to search for truth compromises the appear to be an abstract and cold principle, possibility of another approach, one that pastoral role of canon law and, as the ahead of the personal needs or desire of cannot be said to reflect truth. He speaks Holy Father says, can even compromise the client. I am sure that this dilemma is of pastoral love being contaminated the saving encounter of the party with not confined to marriage nullity cases in by “complacent attitudes toward the Christ. canon law. Every legal practitioner will parties.” These sometimes have the The 2006 address by Pope Benedict be aware of this tension. He or she has a semblance of truth but do not reflect the to the Roman Rota will help those responsibility to the community as well real good of the parties or the Church. working in Marriage Tribunals to see as the client, and getting the balance Conclusion the doctrinal basis of their work and the right can be difficult. In a passing comment near the end service they can provide the Church, as The tension resolved: the search of the address, the Pope called for cases well as the genuine pastoral care they for truth to be processed “in a reasonable time.” give to those who seek a declaration of The seeming contradiction between This comment received considerable nullity. I trust that this brief reflection on the pastoral needs of someone seeking publicity at the time leading some the themes of the address will serve to a declaration of nullity and the juridical commentators to conclude that the help members of the Saint Thomas More formalities necessary to it are resolved Pope was calling for a relaxation of the Society come to a deeper understanding by taking account of the purpose of procedural rules in favour of pastoral of the pastoral nature of canon law and these juridical formalities. considerations. A close reading of the its role in the protection of marriage. address in its entirety will dispel this notion.

Is a Fairer Australia Possible? At What Cost?

On 17 August 2006 Father Frank offered a profound theological reflection Brennan SJ spoke to a joint meeting of on “A Christian orientation in a pluralist the Society and the Guild of St Luke democracy”. He wrote: It is an honour to address this first joint “Catholic theology has since the later gathering of the Guild of St Luke and Middle Ages, with the acceptance of the St Thomas More Society here at the Aristotle and his idea of natural law, University of Notre Dame where I have found its way to a positive concept been appointed the inaugural professor of the profane non-Messianic state. for human rights and social justice. With But it then frequently loaded the idea my father being a lawyer and my mother of natural law with so much Christian a doctor, I am very happy to be amongst ballast that the necessary readiness you. Your convenors, knowing that I to compromise got lost and the state am not an economist and knowing that could not be accepted within the you are lawyers and doctors have asked limits essential to its profane nature. me to address the questions “Is a Fairer Too much was fought for and as a Australia Possible?” and “At what cost?” result the way to what was possible Our present pope Benedict back in 1985 and necessary was blocked”. Father Frank Brennan

15 In the public forum, all religious I will hint at ways in which our I can’t think of any examples in authorities need to acknowledge the Catholic heritage can help inform civil which I have self-consciously applied primacy of the citizen’s conscience over discourse in finding if not the right my own values except insofar as they the teaching authority of the citizen’s answer, then at least an appropriate are reflected in … legal principles. But church when it comes to the church’s way of balancing conflicting claims, self analysis is a risky process. A judge’s and the citizen’s participation in the law with a suitable margin of appreciation duty is to administer justice according to and policy making of the State. in a pluralist, democratic society like law and if you can’t perform that task Australia. then you shouldn’t be a judge.” The wise religious authority will acknowledge that “experience, especially Bill of Rights In his 2006 Australia Day Address, experience enlarged by empathy, adds to One argument for a bill of rights is Prime Minister John Howard looked the force of a teaching.” that it helps to uphold community values back on the first century of Australian when those values are most at risk, though nationhood and reflected on the balance Good law and sound public policy not necessarily when they are most we have achieved as a nation, encouraging in a pluralist democracy must be contested. A bill of rights is a legislative “individual achievement and self- spared much of the Christian ballast of or constitutional text which sets down reliance without sacrificing the common internal Episcopal declarations so that individual entitlements especially good”, valuing our independence, conscientious Catholics can engage with against the State, such entitlements chafing against bureaucracies that deny the necessary readiness to compromise being consistent with principles which us choice and the capacity to shape our within the workings of the essentially are derived from community values. lives, while being “determined not to let profane State. When a society is facing new challenges go of the Australian ethos of the fair go There is a vast range of issues and rapid change, a bill of rights may for all”. We are now a “diverse society we could explore: from the new provide bright line solutions for judges which practices tolerance and respect”. WorkChoices legislation in which we and legislators trying to navigate the He set down his catalogue of would question the balance between the challenges of change, remaining true Australian values: employee’s rights and the conditions to those values. Chief Justice Murray needed to maximise employment through Gleeson says, “In the past, religion • respect for the freedom and economic growth, through to same sex provided many of the common values dignity of the individual marriage which calls for a consideration by reference to which conflicts of rights • a commitment to the rule of law or interest were resolved. Our law in civil law and public policy of the • the equality of men and women correct application of principles of non- still reflects many Christian values.” • a spirit of egalitarianism that discrimination and the need to consider Reflecting on the nature of a pluralist embraces tolerance, fair play and the natural right of any child to have and society, he comments: compassion for those in need. to be nurtured by a known biological “By definition, that means that mother and a known biological father. there is competition, not only when it Conceding our cultural diversity, he But let me open our proceedings by comes to applying values, but also in insisted that like most nations we have opening three issues which are presently identifying values. Everybody is aware a dominant cultural pattern, and for us on the table and which are likely to that our society is rights-conscious. that pattern comprises Judeo-Christian prompt some lively discussion amongst A rights-conscious society must also ethics, the progressive spirit of the such a group but with slightly more be values-conscious. If it is not, then Enlightenment and the institutions and prospect of common agreement without we have no way of identifying those values of British political culture. partisan division on party lines and interests that are rights, or of resolving When addressing the Australian without emotions running too high. conflicts between them. Rights cannot Parliament on 27 March 2006, British I will take up one legal question – the work without values.” Prime Minister Tony Blair said: Bill of rights, one question of concern When asked about these remarks in a “We know the values we believe to all citizens – border protection and broad ranging, profile interview in 2006, in: democracy and the rule of law, but the rights of refugees, and one medical Gleeson told the Australian Financial also justice, the simple conviction that, question – stem cell research. Review: given a fair go, human beings can better “I don’t think judges should allow themselves and the world around them. idiosyncratic values to influence their reasoning process.

16 These are the values that our two permanently fetter the Commonwealth national security in the wake of terrorist countries live by, and others would parliament and government from attacks off shore and threats on shore, live by if they had the chance. But we discriminating against people on we need to acknowledge the profound believe in more than that. We believe the basis of race, gender or sexual changes that have occurred to our checks that the changes happening in the orientation and balances: world that make it more integrated, the • Continued access to the First Optional • The government no longer takes any globalisation that with unblinking speed Protocol of the International Covenant notice of procedures under the first reshapes our lives, are an opportunity as on Civil and Political Rights (ICCPR) optional protocol. much as a risk. We are open societies. which provides for equal protection • The government now controls the We feel enriched by diversity. We and a ban on arbitrary interference Senate. welcome dynamism and are tolerant of with privacy difference.” • The High Court has become isolated • A High Court open to the influence from other final courts of appeal. While Tony Blair came to office with of international norms of human With the passage of the UK Human a passionate commitment to enacting rights on statutory interpretation and Rights Act 1998, even the UK courts the UK Human Rights Act 1998, John development of the common law. (like the courts in the US, Canada, Howard has remained implacably In the short term I suggested the South Africa and New Zealand) now opposed to the introduction of a bill creation of a Senate Committee for Rights work within the template of a bill of of rights in Australia. Whereas Blair and Freedoms which could complement rights when confronting new problems, thought community values could be and incorporate the existing Scrutiny seeking the balance between civil enhanced by a statutory bill of rights, of Bills Committee, the Regulations liberties and public security. Howard thinks a bill of rights in any and Ordinance Committee and the • In Al-Kateb v Godwin (2004), the form is inimical to the maintenance of Legal and Constitutional Committee by isolated High Court has found itself Australian values. In his 2006 Australia implementing a Commonwealth Charter unable to interpret a statute so as to Day Address, Howard put a bill of of Espoused Rights and Freedoms as “a avoid the possibility of a stateless rights off the legislative agenda for his precursor to a statutory bill of rights”. asylum seeker spending his life in remaining time as prime minister. He detention without a court order or I conceded that “bipartisan told the National Press Club that there judicial supervision. was always the need to find “the right intransigence by our federal politicians balance between the legitimate interests confronted with violations against Days prior to his retirement from the of the community on the one hand and unpopular, powerless minorities would High Court, Justice McHugh had cause individual civil rights on the other. remain a problem”. But I suggested, to lament publicly the “tragic” outcome And inevitably this will be a matter for “That intransigence presents an even in Al Kateb. He told law students: passionate debate.” He then launched a greater obstacle to a more entrenched “Al Kateb highlights that, without lengthy salvo against a bill of rights in proposal such as a statutory bill of rights a Bill of Rights, the need for the any form. or a constitutional bill of rights”. informed and impassioned to agitate I suggested that we had two the Parliament for legislative reform In 1998, I published Legislating distinctive Australian safeguards against is heightened. While the power of the Liberty in which I opposed the majoritarianism: judicial arm of government to keep introduction of a constitutional bill of a check on government action that • A Senate in which the balance of rights for Australia. Conceding the contravenes human rights is limited, the power will be held by minor parties shortfall for the protection of rights in need for those with a legal education, like whose political niche, in part, is carved our constitutional machinery, I suggested yourselves, to inform the political debate from the espousal of individual and four means for making up the shortfall: on issues concerning the legal protection minority rights. • The passage of a statutory bill of of individual rights is paramount.” rights similar to the New Zealand • A judiciary shaping the common In the past, I had suggested there was Bill of Rights Act 1990 law and interpreting statutes while responding to international no point in any one State jurisdiction • A constitutional amendment developments in human rights going it alone on a bill of rights and that guaranteeing non-discrimination jurisprudence. we were better off waiting for a uniform against persons so that we could bill of rights at the Commonwealth So what has changed in eight years? level. Even before considering the new challenge of balancing civil liberties and

17 The ACT passed its Human Rights No other country will have a greater But in those jurisdictions which allow Act in 2004. The Victorian Parliament obligation than Australia to take them. embryonic stem cell research there have has now passed its Charter of Human They will be resettled in Australia. been no breakthroughs. Rights and Responsibilities Act 2006 Won’t they? And just as quickly, won’t The committee conceded that “it part of which will take effect on 1 they? They will be free to protest, won’t is not known at this stage whether January 2007, with the Act taking full they? embryonic or adult stem cell research effect on 1 January 2008. The Court of Why not process them just as fairly will provide greater benefits (if any)”. Appeal of the Supreme Court of Victoria It acknowledged that embryonic stem will be well positioned to be the leading and as quickly at the $300 million cell research is still “mainly confined interpreter of human rights instruments Christmas Island facility and save some to preclinical (animal) studies because in Australia, unless and until the High money? Or is the idea to leave proven the cells are not yet characterised well Court whets its appetite for granting political refugees languishing in Nauru enough for use in clinical trials and there special leave applications to interpret out of sight and out of mind where their are significant risks (such as tumour bills of rights provisions which presently protests will not be heard? formation)”. are confined to two jurisdictions. Stem Cell research So the committee, prompted by The terrorist threat combined with Ending the 2002 parliamentary debate scientists threatening to leave Australia the tight discipline of the government on human cloning and embryonic stem for more liberal research environments, parties and the unwillingness of the cell research, Stephen Smith leading seized on changing community parliamentary Opposition to invest the debate for the ALP said: “A ban on standards. The committee thought that much political capital in protection human cloning is sensible, is necessary “in the face of moral diversity, it is of minority rights in these uncertain and, on the basis of the debate both here unjustifiable to ban embryo research and times contribute added potency to the and in the Senate, has the universal and therapeutic cloning.” call from the community for a statutory unanimous support of the parliament”. bill of rights which can consolidate the The ban applied to all forms of cloning, They put to one side Parliament’s checks and balances needed in a modern both reproductive and therapeutic. unanimous prohibition of all cloning and democracy. unanimously recommended therapeutic In the Senate, there had been very cloning even with the use of enucleated detailed consideration of one form of Border Protection and the Rights animal eggs. They thought scientific of Refugees therapeutic cloning called somatic cell exploration should be permitted provided The Howard government justified nuclear transfer (SCNT). there were not strong arguments against the 2001 Pacific Solution as a means In part, this was because Senator it from all groups, including those who of stopping secondary movers in Natasha Stott Despoja was very informed discounted the moral significance of the faraway places from employing people about the developing technology; also life of the human embryo. smugglers and ending up in Australia. Senator Brian Harradine was concerned That rationale does not work for Papuans There are three moral positions that to ensure a comprehensive ban on in canoes. might be put about experimentation on embryo experimentation. Senator Kay human and hybrid embryos. Last Thursday, the government Patterson, then Minister for Health and • First, experimentation on any embryo, told Parliament that the proposed 2006 Ageing, defended the bill’s definition not for the benefit of that embryo, Pacific solution will be a means of of “embryo” as one that “encompasses is wrong. “prevent(ing) Australia from being used all embryos, regardless of how they as a staging post for political protests” were created….This includes embryos • Second, experimentation on an and of “removing the incentive to reach created by somatic cell nuclear transfer.” embryo which was created with mainland Australia”. The cloning of all embryos was banned. the possibility of implantation, and as member of a group of embryos The government gives the assurance So what’s changed? Is there a need for created to maximise the prospect that future Papuan asylum seekers will another conscience vote? The Lockhart of successful implantation of a healthy be processed just as fairly and just as Committee was asked to review the embryo, is permitted once it is no quickly on Nauru. legislation in the light of changed longer required. community standards and developments If they are like the 43 Papuans from in research. There has been some progress last year, they will be proved to be over the last four years with research refugees. No other country will take them. using adult stem cells.

18 • Third, the creation of embryos These are embryos created with the There is still the prospect that specifically for experimentation and intention of their being available for stem cells could be produced from destruction is permitted, provided selection for implantation. There is a a collection of cells which is not an only that the experimentation is aimed strict requirement that there not be any embryo. Community standards and at improving the lot of humanity. more embryos created than are required the near universal condemnation of all for the successful implantation of a cloning (including SCNT) by our elected In 2002, the majority of our healthy embryo. politicians just four years ago point to Parliament thought the community the need for Australians to wait until standard was reflected in position two, But there is a second Rubicon. That conscientious scientists have exhausted though a significant minority of the is where we now stand. Beyond this all efforts to find ethical sources of Parliament thought it was reflected in second Rubicon is a city where the pluripotent stem cells for research and position one. The Lockhart Committee scientist is justified in creating human therapies available to all. The ethical thought that the community standard life only so that he might experiment dilemmas cannot be solved by redefining is reflected in position three. This may upon it and destroy it without the need the product of therapeutic cloning as well be the personal preference of each for any respect of the dignity of that anything but a human embryo. member of the Lockhart Committee. human life. In 2002, our parliament unanimously stopped short of crossing There has not been sufficient change On the vast plain of embryo research, the second Rubicon. in the state of scientific knowledge nor there are two Rubicons. The Australian in community acceptance of deliberate community crossed the first Rubicon To date, we have drawn a moral creation of human life for destructive in 2002, given the lack of community distinction between creating an embryo experimentation to warrant a revisiting reaction to the Parliament’s decision which has a chance at life and creating an of Parliament’s 2002 decision. to permit experimentation on excess embryo which has no chance at life. The embryos from IVF. second is created only so that it might be experimented upon and destroyed.

The 75th Red Mass. left: Michael Slattery QC, then Senior Vice-President, NSW Bar Association, offering a reading. right: Fr Brian Lucas, General Secretary, Australian Catholic Bishops Conference, reads the Gospel.

19 The science has not changed; the In the Catholic tradition we have Marcus Priest, “The Smiler”, The Australian moral arguments have not changed; never seen a contradiction between Financial Review Magazine, May 2006, 68-73 community standards have not changed. the two. The bishops and the declining at p. 70 It should take more than a handful of number of priests and religious cannot CPD (HofR) 4; 27 March 2006 scientists seeking out more value-free do it on their own. They never could. F. Brennan, Legislating Liberty, University of research environments for our politicians You are the church in legal and medical Queensland Press, 1998, pp. 44 and 178 to change their conscience vote. mode. Al-Kateb v Godwin (2004) 219 CLR 562 Justice McHugh was one of the majority in Conclusion References the 4-3 decision. He observed at p.581: “As A fairer Australia is possible if we J. Ratzinger, Church, Ecumenism and Politics, a result, tragic as the position of the appellant maintain the Catholic commitment Crossroad, New York, 1988, pp. 204-220 at certainly is, his appeal must be dismissed.” p. 213 to justice, rights and dignity for all, M. McHugh, HYPERLINK “http://www. John T Noonan, A Church that Can and Cannot highcourt.gov.au/speeches/mchughj/mchughj_ especially the most marginalised and 12oct05.pdf” “The Need for Agitators - the vulnerable in our society. As lawyers Change, University of Notre Dame Press, 2005, p.204 Risk of Stagnation” Sydney University Law and doctors we can contribute to this Society Public Forum, Sydney, 12 October mission of our Church and to good , “Rights and Values”, 2005 Melbourne Catholic Lawyers Association, citizenship. 18 June 2004

Award of Papal Honours for the Diamond Jubilee of the St. Thomas More Society

On 21 September 2006 at Cathedral We are most grateful to His Eminence House, George Cardinal Pell conferred for his hospitality in inviting us to be Papal Honours on several distinguished present at this reception, to his Private members of the Society in honour of Secretary, Dr Michael Casey (a member the Diamond Jubilee. The Society’s and former Councillor of the Society) President, Greg Smith SC, offered these for his assistance in obtaining the opening remarks. appropriate decorations and support in arranging this function and to Mrs Helen Today is another great day for the St. Hoffman for her customary skilful and Thomas More Society, which last year cordial organization of the refreshments celebrated sixty years of life. to be served here today. We are delighted that the Holy Father, In June of this year, I was privileged Pope Benedict XVI, has very generously to be present at the unveiling of a bronze honoured five distinguished members of statue of St Thomas More in the Speaker’s the Society, four of whom the Society Garden of the NSW Parliament House, nominated for Honours and the fifth of donated to the Parliament and blessed whom was nominated personally by His Greg Smith by His Eminence. Eminence Cardinal Pell. I was moved by the significance of The four are Reverend Fathers and of the Society, Anthony Reynolds, a the occasion, as I had decided to seek Doctors Brian Byron and Jim Esler, long serving Treasurer of the Society. Liberal Party preselection for my local both of whom have loyally served as the The fifth is His Eminence’s personal seat of Epping, which was falling vacant Society’s present and immediate past nominee, our immediate past and long due to the impending retirement of the Chaplains, as well as The Honourable serving President, John McCarthy QC. long term sitting Member, my friend John (Jack) Slattery QC, a founding The Society congratulates our good Andrew Tink MP. member and long serving Past President friends, the recipients of these honours.

20 I anticipated that I may have to call on our great Patron and the Patron Saint of politicians to intercede for me if I was elected to the Parliament. St Thomas More provides a wonderful example of courage in the face of adversity. I hope and pray that his presence will cause a lifting of standards in those who are entrusted by the electors of this State with the privilege of representing them. I also hope and pray that he will continue to guide the members and honorary life members of this Society and all their loved ones and friends so that we may continue to uphold the splendour of the truth and strive for justice in all our lives and work. Greg Smith SC makes his opening remarks

RESPONSE ON BEHALF OF RECIPIENTS OF PAPAL HONOURS

I am doubly honoured this evening – It is a splendid privilege to have you firstly, to receive this Award (KCSG) in here – a founder of the Society 61 years the Order of St Gregory the Great from ago, and the sole surviving founder the Holy See, secondly, to be invited to present for the Diamond Jubilee. respond on behalf of the recipients to Jack, you are the only one left the gracious words of introduction by who heard the prophetic words of this Dr Michael Casey. resolution at the foundation meeting on So on behalf of Fathers Brian Byron 14 August 1945: and James Esler, Jack Slattery, Tony “There is every reason to hope Reynolds and myself, I express our and no reason to doubt that the St heartfelt gratitude to the Holy Father Thomas More Society will flourish in and to our patron, Cardinal Pell, to the NSW and will fulfill its noble ideals Holy See and the Archdiocese for the unbrokenly throughout the course of great honour bestowed on each of us the years to come. Looking forward this evening and the further honour far into those years we may visualise you all give us by being present at this someone or other of the Society’s John McCarthy investiture ceremony. members of future time looking To each of my fellow recipients, I back to think upon the Society’s John McCarthy QC, immediate Past offer my warmest congratulations on beginning. For such, the provisional President of the Society, responded your awards. First to Jack Slattery – no Council in presenting this, its report on behalf the recipients of the Papal one here is more worthy of honour and to the first annual general meeting of Honours. recognition than yourself. the Society, places on record all the details of the Society’s origin.”

21 Through papal recognition of the You defined and widened the life of The Holy Father remarked that one of Society’s work into the second generation the spirit in busy and pressured legal the most extraordinary miracles he had that prophecy has been fulfilled. practitioners whose cares and troubles ever witnessed was that Irishmen and you had shared as a solicitor. You others of Irish descent were petitioning Jack, no one has contributed more proposed to Society members the idea for the canonisation of an Englishman to the objectives and purposes of the of law as a vocation of service and virtue – a true sign from heaven! Society over these years and decades and a path of salvation. You have been than yourself – long-term Councillor, Father Byron, with our congratulations our longest serving Spiritual Director President for nine years, constant go our prayers. You have had serious (1968 – 1992) and acclaimed recipient promoter and supporter of the Society’s health problems of late. We earnestly of the St Thomas More Award. Please activities – a great judge and lawyer, a hope all will be well with you. remember the Society and its members fine spiritual son of St Thomas More, in your prayers. Tony Reynolds – you were the longest shrewd leader, gentleman and scholar – serving Treasurer in the Society’s history. exemplar and pride of Sydney Catholic Father Byron – you are Australia’s No one has ever worked, day in day out, lawyers – loved and admired by all. leading More scholar, of international on the Society’s affairs and programmes renown. The Society has been honoured Jack, it is a great privilege to receive as you have. The books, records and with your presence amongst us. No one a Papal Award in your presence, for accounts have never been in better order. can bring our Patron Saint and his times services to the Society, as part of the Your supervision of numerous events, more alive or, paint more vividly, More’s second generation of members, mostly publications and correspondence was spiritual journey than yourself. Thomas not even born when the Society was faithful, meticulous and unassuming More is better known and loved by all of founded. This is recognition that the – wrinkles were smoothed and mishaps us through your work with us. vision and faith of yourself and the avoided. other founders has found continued The Patronal Feast Day Mass and Our Golden Jubilee publication “The approbation from the Church both in Dinner was a Byron proposal which has Saint and the Society” was literally the Sydney and in Rome. much enriched our Society. You have happy outcome of your persistence, associated us with the international It is a matter of pride to be associated drive and organising talents. You know world of More studies and its doyen, with you in this way – in the service of how to meet a deadline and make sure Abbe Mach’adour – we are more our Faith, our Society and the Law. God everyone else does. Your handling of the learned and more Catholic through your bless you. You have given us more than Society’s voluminous records damaged service with us. It is rumoured that you can be repaid in earthly terms. by flooding in a basement bank vault left have even come to like lawyers and, all of us forever in your debt and you To Fathers Esler and Byron – we are perhaps, parliamentarians as your recent worthy not only of a knighthood, but all in your debt – for your spiritual and initiative for a Thomas More connection beatification. Congratulations on the intellectual guidance and presence in the in Australian parliaments begins to bear recognition of your fine service to the Society. Consecutively, for nearly forty fruit. Church, to lawyers and the Society. years, you have been at the spiritual You were delighted to be associated heart of our guild. For myself – it has been an honour to with the presentation by Cardinal Pell serve the Society throughout my life in Father Esler – our family connections on behalf of Sydney Catholics of a the law, back to the 1970’s. Place and have been deep and lasting. You were at magnificent bronze statue of St Thomas circumstance shape all of us. In my case school in Parkes with my dear mother, More to the NSW Parliament and which I could never forget that the chambers to who is here tonight with us. You married the Speaker (the Hon John Aquilina), which I belong – the old fighting fifth Christine and myself and have kept a who is with us this evening, has placed in – the Fifth Floor Chalfont and now Fifth fatherly eye on us, as you have for so the Speakers’ Garden – More of course, Floor Wentworth, was the unofficial many other legal families. You are a was a notable Speaker of the House of headquarters of many of our founders great lawyer, a university medalist, and Commons. – the chambers of John McKeown, subsequently, a splendid priest and moral Father Byron, we all have acquired Cyril Walsh and Billy Sheahan, Hugh theologian. You deepened the Society’s anecdotes about More from your vast Maguire, Doug McGregor and many understanding of the relationship of erudition about our Patron saint. The other members of the Society. These faith and reason, of natural law and the one I like best is Pius XI’s response to a were men I had come to admire and place of worship and prayer in the life query about miracles attributed to More revere and I sought to follow them and of lawyers. at the time of his canonisation in 1935. their successors for this apostolate.

22 Thomas More can be also striking I thank and salute all of the officers In closing, I offer on behalf of all of in his influence – the date of my and Councillors who have served with us who have been honoured by these commission as Queen’s Counsel is 6 us for their work, support, inspiration Papal Awards, a renewed pledge of July 1988. The Vice Regal Commission and common sense. fealty to the Holy Father, in the spirit on behalf of a successor of Henry VIII of St Thomas More and expressed in I thank my beloved wife and family was signed on the anniversary of More’s the words of another great Englishman for their patience and understanding execution – just a co-incidence perhaps, (John Henry Cardinal Newman): and for coming to know and accept but in Christian terms, perhaps not. Thomas More as our family patron and “And I hold in veneration for the I particularly want to thank Cardinal to weaving him into their ideals, their sake of Him alone, Pell for his nomination of myself for prayers and their thoughts. Holy Church as His creation this award. I have greatly appreciated I cannot close without speaking of And Her teachings as His own”. his warm support and approval of the Louise Pritchard, my secretary. She Society’s activities which he frequently God bless the Holy Father, preserve is known to everyone associated with talks about and regularly attends (as had him and give him grace and strength the Society and its activities from his predecessors). His Eminence regards as our Vicar of Christ in this troubled Governors-General to Chief Justices to the work of our guild as an important world. May St Thomas More bless you new members – she worked on all our part of the Catholic presence in the all. May he remain with us and give us affairs with cheerful devotion. The good legal profession and public life and he all fortitude and wisdom. order and reputation of the Society was has praised our particular association her constant concern for over a decade. through the Red Mass with St Mary’s Nothing was too much trouble for Cathedral, Australia’s mother Church. Louise, her skills and professionalism This ceremony and these awards are allowed us to transcend many of the another happy instance of the close limitations of a voluntary association. interest of our Patron in our affairs. On my own behalf and on behalf of For me it has been a great honour the Society and the Church, I express to serve as President of an association our heartfelt gratitude to her for all her I love dearly and which has provided splendid work over the last ten years. me with so many opportunities and Thomas More is a greater figure in occasions of spiritual gain, friendship the world and the Church today than and insight. To have had the confidence fifty years ago, or at the time of his of the Society for so long will always be canonisation in 1935. In 2000, Pope John one of my most cherished memories. I Paul II declared him the Patron Saint of remain troubled by how well I served our elected leaders and parliamentarians. He Patron Saint and the Church. It always has long been a patron saint of lawyers. seemed that so much remained undone The Holy See has encouraged interest in or underdone – for which I must remain More as vitally important for both lawyers accountable. My spirit is consoled by and those in public life. This evening’s the approbation of the Holy See and our ceremony re-affirms, that under Pope Patron (the Cardinal) for my service in Benedict, the Holy See continues to the second generation of the Society. strongly promote and encourage guilds and societies associated with this great lay saint and martyr for the unity of the Church. More’s Christian ideal of duty, “the King’s good servant but God’s first” has become the Church’s ideal for lawyers and all those in public life.

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