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A few years ago, then National Civic Council national president Pat Byrne assembled a matrix of federal, state and territory laws dealing with gender identity. His matrix included birth certificate laws, marriage laws and anti-discrimination laws at odds with the traditional religious teachings of the Catholic faith tradition and those of many other religious traditions. Such laws are also contrary to a biological worldview of sex in which sex is biologically binary and immutable. These laws bring the state into conflict with people and institutions that hold these views.

As Byrne can attest, the frequency with which laws of this type are enacted across the country makes it hard for anyone to maintain an accurate and up-to-date matrix of this kind. In this article, I want to endeavour to put those laws into context. I want to consider how Australia appears now to be untethering the law from the morality of traditional Christianity, and from reason, at a cyclonic pace in a comprehensive triumph of positivism over natural law.

In the Western legal tradition, most people follow the law most of the time because that is what people do in a civilised society. They don’t follow the law every day due to consciously fearing retribution but as a matter of habitual obedience. For many, what’s legal is moral.

The reasons for this are found in the Christian roots of the Common Law and our legal system and emerged at a time when there was great – and not coincidental – unanimity between the positive law and Christian morality. Although never a Christianity theocracy, Christianity has nevertheless historically provided the moral framework for Australia’s legal system and laws. As Patrick Parkinson, former dean and head of the University of Queensland Law School, has explained:

“The close relationship between law and theology in the formation of the Western legal tradition, the belief in law as ultimately given by God and the idea that there were natural laws which governed human relations meant that law was imbued with a certain aura of sacredness. The close relationship between law and faith meant that law was believed in; for law, in Caesar’s kingdom, was an aspect of the will of God.”
(Tradition and Change in Australian Law, fifth edition, 2013)

What the law is has become increasingly important because, as religiosity has waned in the West, more people have looked to the law as the boundaries and frame of morality and behaviour. This is significant because, now more than ever, if groups in society want to change society in ways favourable to them, the law is a more complete means of achieving that aim than it might have been in the past. Where once at least a majority of people would have a shared moral perspective which might resist dissonant changes in the law, that is no longer so. The place of religion is much diminished.

Natural Law

The aim of this article is not to provide a detailed lesson in jurisprudence, but it is necessary to say a little about natural law. This is because, if natural law remained the dominant legal theory, it might provide a framework for the discernment of good from bad laws and act as something of a bulwark against the decline in recognition of Christianity as a moral guide.

In a nutshell, natural law argues that, through the use of human reason, it is possible to discern the good which the laws of a society should aim for. Natural law is a foil to relativism. A natural law theorist would agree with Martin Luther King Jr when he said the following in one of his early sermons:

“Some things are right and some things are wrong. Eternally so, absolutely so. It’s wrong to hate. It is always wrong and it always will be wrong. It’s wrong in America, it’s wrong in Germany, it’s wrong in Russia, it’s wrong in China. It was wrong in 2000 BC, and it’s wrong in 1954 AD. It always has been wrong and it will always be wrong.”

While natural law today is closely associated with Catholic thinkers like John Finnis, former Professor of Law and Legal Philosophy at the University of Oxford, it traces its roots to ancient thinkers such as Aristotle and Cicero. For example, in De Re Publica, Cicero spoke of “a true law, namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal”. For Cicero, it would never be morally right “to invalidate this law by human legislation”.

The Christian embrace of natural law might be traced to Romans 2:14-16, where St Paul spoke of the Gentiles having an innate sense guiding their behaviour by which they could be judged even though they did not know the Scriptures. St Thomas Aquinas formulated a more holistic understanding of the operation of natural law in the Summa Theologiae.

Professor Finnis’ best-known work in this area is Natural Law and Natural Rights. There, he identifies Life, Knowledge, Play, Aesthetic Experience, Sociability or Friendship, Practical Reasonableness and Religion as the goods that reason dictates people should aim to achieve. The legal system and government should facilitate the achievement of these goods and the extent to which laws do or do not do so is a measure of their consistency with natural law.

This does not mean that natural law dictates that every nation will have exactly the same laws. For example, a nation can equally protect life by laws requiring driving on the left or on the right. Similarly, a country experiencing famine would have to devote a greater proportion of its resources simply to sustaining life and fewer resources to the Aesthetic Experience than a country experiencing great prosperity.

Positive Law

Positivism emerged as a critique of natural law. In short compass, positivism propounds that the “law is what the law is”. It sought to explain what was seen as a gap between natural law and the reality of laws as found in autonomous nation-states that enacted and enforced their own sometimes quite disparate laws. However, as noted earlier, this fact on its own is not a legitimate critique of natural law.

One of the most famous proponents of positivism was John Austin. Austin said in 1832: “Laws properly so called are a species of commands … every positive law is set by a given sovereign to a person or persons in a state of subjection to its author.” For Austin the “existence of law is one thing; its merit and demerit another”. So, for Austin, for “law to be law” simply required a command to be issued by the ruler, which is backed up by sanction or force: that is, you must do or refrain from doing what the monarch or government has put into law. This is the dominant legal theory today.

The result is that the law is simply a consequence of political power. It is enacted by parliamentarians (through legislation) and by judges (through their decisions). Neither group is selected for their roles because they have any particular moral or philosophical training or insights that might equip them to be the guides of the morality of their state. Indeed, most legislators and judges would eschew that responsibility, if not deny that they exercise it.

As a consequence, groups that can best persuade others to embrace their perspectives and who are best organised within the education systems and more generally – rather than those who might speak the truth or understand what might really be the best course of action to adopt or even support the introduction of laws consistent with international law – disproportionately influence the law and, through it, the morality of the society.

In this way, a term like “sex” can be defined by parliaments to mean not just male and female, but a range of genders. Similarly, in this way, a term like “marriage” could be determined by the High Court to be a juridical construct.

The Court could then make up its own definition; one which the framers of the Constitution could not have contemplated. They said that marriage is:

“A consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.” (Commonwealth v Australian Capital Territory, 2013, HCA 55)

From the fact that, with very few exceptions, across Australia, in addition to the laws around gender identity identified by Byrne, abortion is accessible essentially on demand to full term and clinics are protected by exclusion zones from seeing or hearing protests, prayers or offers of assistance; and laws now embrace IVF, surrogacy, prostitution and euthanasia (referred to as voluntary assisted dying), it is clear that those who favour traditional Christian morality are not the group exercising power.

This fact is even more so in Australia that other nations, including comparable Western nations. While the New South Wales Law Reform Commission’s recently released Consultation Paper on that State’s Anti-Discrimination Act suggests the extension of that Act’s protections to sex workers, in Spain, the Socialist Government has recently banned its members from “soliciting, accepting or obtaining sexual acts in exchange of money”. Spanish Prime Minister Pedro Sanchez said in support of this rule that “if we believe a woman’s body is not for sale, our party cannot allow behaviour contrary to that”. (See “Spain’s ruling party bars members hiring sex workers”, The Australian, July 1, 2025.)

The United Kingdom, following the Cass report into transgender services to children, and many other countries are proscribing or significantly limiting the treatment of children experiencing gender confusion with drugs or surgery. Not Australia. Many U.S. states are prohibiting or restricting access to abortion. Not Australia. Few countries permit euthanasia, and those that do generally have more restricted access than in Australia.

Gordian Knots

The lack of a clear framework by which to judge laws or to gradate the worthiness of interest groups creates Gordian knots that are impossible to untangle. For example, in a competition between racial minorities and gender equality and the “right to choose”, which should prevail?

In a paper recently published in the Global Public Health Journal, researchers from Edith Cowan University have reported that sex-selection abortions are taking place, particularly among Indian and Chinese women living in Australia. According to the lead researcher Amanuel Gebremedhin:

“While maintaining rights of bodily autonomy, sex-selective abortions should be discouraged, as it undermines broader commitments to gender equality and non-discrimination.”
(Natasha Bita, “Migrant mothers are giving birth to more sons than daughters”, The Australian, June 30, 2025)

These sorts of conundrums do provide an opportunity to expose the irrational nature of our laws and their affront to reason but, sadly, it is raw political power rather than faith and reason that is the measure of our laws and the means to effect change.

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Republished with thanks to News Weekly. Image courtesy of Adobe.