History Teachers' Association of Australia
Religious Freedom, Tolerance and Diversity in Australian Democratic Society: The Ideal, the Reality, and the Future
In the light of government sanctioned, Islamic court decreed stoning of adulterers and rape victims in Nigeria, seemingly never-ending sectarian violence in Northern Ireland, the excesses of Afghanistan’s Taliban government, and other state sponsored religious extremism, we may be forgiven for being thankful that in Australia we enjoy the benefits of a strict separation of church and state, and a neutral secular law and legal system and that we live in a society where religious freedom is protected by our courts and constitution and that we are adequately protected from religious discrimination by anti-discrimination laws. In relative terms we may also see ourselves as a tolerant multicultural society, which respects and accommodates religious diversity.
This view appeared to be confirmed by the fact that until very recently – prior to the ill advised appointment of Archbishop Hollingsworth as Governor-General, public exposure of the scale of child abuse by priests, the September 11 attack and Bali bombings in the name of Islam - religion only very rarely featured in our headlines, topics of conversation and arguments - the "child sacrificing" Seventh-day Adventist, Lindy Chamberlain, being a notable exception.
We not only didn’t argue about religion, we didn’t talk about religion at all. To do so would have been deemed impolite – even rude
Religion in Anglo-Australian society was not intrusive. Even today, when we speak of ‘in your face religions’ we talk of migrants - Mormons are American, Buddhists are Asian, Muslims are from Asia Middle Eastern – somewhat reminiscent of the way we talked of the then exotic dishes such as Sweet and Sour, Spaghetti and Pizza in the 1960s.
The results of the 1988 referendum, in which an attempt to clarify, extend and strengthen constitutional protection of religious freedom failed to gain any support whatsoever, arguably appeared to confirm the perception that the protection of religious freedom was not an issue or of concern to the vast majority of Australians.
Only very recently has the gap - some would say chasm - between the ideal and the reality been exposed and begun to be discussed.
In 1997 the Human Rights and Equal Opportunity Commission undertook the first ever, official review of religious freedom in Australia.
In Nov 1998 the Commission published its findings in a Report titled Article 18 Freedom of Religion and Belief. The review’s politically unwelcome and inconvenient findings led to it being swept under the carpet - in so doing ensuring that members of the public who are neither members of religious minorities nor familiar with the Commission’s web-page could remain in John Howard’s mythical 1950s Christian church-going dream land.
The review revealed significant evidence of religious discrimination, with many of the submissions outlining commonly and frequently occurring instances. The Commission concluded that constitutional protection of religious freedom was inadequate and recommended that the Commonwealth should enact a Religious Freedom Act to amongst other things properly accommodate the right to believe and practice, recognise and give effect to freedom of religion and belief, affirm the right of all religions and organised beliefs, and place limits on limitations on freedoms. It also recommended reforms such as the decriminalisation of witchcraft and abolition of the offence of blasphemy.
So, why has legal protection apparently proven to be inadequate?
First, because in spite of common perceptions the common law offers no protection.
Our courts have been unambiguous in ruling that there is no common law right of religious freedom. The irony of this reality is that at the time of federation Australians expressly rejected the adoption of a US style Bill of Rights – preferring instead to rely on a representative legislature and common law for the protection of rights such as that to freely practice religion.
Secondly, because what at first glance appears to be constitutional protection has been found to be largely meaningless.
Section 116 of the Australian Constitution provides that: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."
It appears that the reason why section 116 was inserted in the constitution was to counter fears of minority religions, most notably Seventh-day Adventists, at the implications for separation of church and state of the inclusion of a preamble that referred to God - "Whereas the people of NSW, Vic, SA, Qld and Tasmania, humbly relying on the blessing of almighty God, have agreed to unite…"
Many reasons may be cited for why section 116 protection is largely impotent:
First, it only applies to laws enacted by Federal Parliament, and thus arguably only to some executive and administrative acts.
Secondly, it also does not apply to laws enacted by State parliaments. With the exception of Tasmania, State constitutions do not contain religious freedom provision in their constitutions.
An opportunity to rectify these first two problems was put to the Australian electorate in 1988. The Constitution Amendment (Rights and Freedoms) Bill 1988 sought to extend the protection offered by the Federal Constitution by making the clause applicable to State as well as Commonwealth governments. By deleting the reference to the making of law it also sought to remove the ambiguity over whether s116 also applied to executive acts. As mentioned earlier, this referendum question failed to secure a majority in any Australian state.
For the benefit of those still holding onto an idealised perception of religious freedom in Australia and thus unable to imagine a contemporary Australian State government enacting laws discriminating against religious groups, it may be time to recognise that it DOES matter that our State government’s can restrict religious freedoms because they HAVE shown themselves willing to do so. Following the 1965 Report of Kevin Anderson QC’s Board of Enquiry into Scientology (established by the Victorian Government) which concluded that: "Scientology is evil; its techniques are evil; and its adherents sadly deluded and often mentally ill…In a community which is nominally Christian, Hubbard’s disparagement of religion is blasphemous and a further evil feature of Scientology", the parliaments of Victoria, Western Australia and South Australia legislated to prohibit the practice of Scientology, the use of its name and the dissemination of its teachings. Western Australia and South Australia repealed such legislation in 1973 and Victoria only did so in 1982
Thirdly, it remains uncertain whether the section 116 protection applies to laws of the territories.
Fourthly, and perhaps most significantly, section 116 has been interpreted very narrowly by our judiciary. In particular the use of word "for" has been held to require that prohibited laws be ones enacted for the purpose prohibited by the section. Thus our High Court has ruled that to fall foul of section 116, the prohibited federal laws "for establishing any religion" need to be enacted for the sole purpose of creating a national church or religion. Similarly the term "for prohibiting the free exercise of religion" has been held to only protect us from laws prohibiting the doing of acts required by religion - but significantly not from laws requiring the doing of acts prohibited by religion. In ruling the protected freedom not to be absolute, our courts have distinguish between belief and actions and held the freedom to practice religion to be restricted by rights of other members of society to protect society against the unsocial actions or actions subversive to the community itself.
Fifthly, while the High Court’s attempts to define "religion" have produced generous, though unclear criteria, the definition is apparently not broad enough to definitively encompass Aboriginal religions.
Finally, section 116 has been held not to be a constitutional guarantee of rights of individual but an express restriction of the Commonwealth legislative power
The third reason why legal protection is inadequate is that our anti-discrimination laws have proven to be not only inadequate but arguably also inappropriate.
In most states (though not South Australia and Tasmania) anti discrimination legislation offers some protection. Yet, legislating religious freedom appears to have failed.
A key explanation arguably lies in the reality that our laws are neither neutral nor secular. Our law purports to be secular and neutral and thus to not prefer one religion over another. While the law’s claim to objectivity has been challenged with respect to race and gender, it could be said that the it is the law’s ostensible secularity and constitutional protection which have reinforced the perception that all religions are equal before the law.
Though religion is not openly declared to be part of the law as it once was, what we have created is a veneer of secularity. By that I mean that while our laws no longer overtly enforce religious conformity, on closer analysis they are found to be based on Judaeo-Christian doctrine and to reflect liberal western Christian values.
Consequently as legal norms reflect those of our dominant Christina religions, many of our laws under the guise of secularity enforce such religious values and consequently do favour some religions over others.
This has also enabled the law to define limits of religious tolerance in terms of religious practices that are acceptable to the dominant Christian group in our society. It is not surprising, therefore, that minority religions which offend the values of the main churches tend to also offend the values of the law – just ask a Jehovah’s Witness involved in a Family Court dispute over children.
I note in passing that it is curious that our multicultural society celebrates only western Christian holidays as public holidays, ignoring religious holidays of eastern Christianity and other religions.
I also submit that through their comparative and equality focus, anti-discrimination laws have served to promote assimilation rather than diversity – further entrenching dominant religions as benchmarks of norms and arbiters of the limits of tolerance.
When we talk of treating all religions equally we unfortunately often mean treating religious minorities exactly as we treat members of dominant Christina religions.
Such equal treatment occurs in the absence of adequate consideration of vital differences. Thus, Muslim’s are accorded the same rights as Christians, and as Christians don’t insist on taking breaks from work to pray 5 times a day, why should Muslims. The validity of our laws is not determined by its conformity with God’s law so we dismiss those who do as fanatics. In short, the law’s perception of religion is not that of a religion that presents its adherent with a choice between being true to their religious obligations and complying with secular law.
The dominant culture’s view of religion is that of a private and personal belief system which is not publicly discussed, which doesn’t noticeably dictate lives and behaviour, and the practice of which is flexible and not compulsory. It certainly doesn’t conflict with a citizen’s obligations to the state
Such a view is evident in the law’s approach to freedom of religion - which tends to equate freedom of religion with freedom of belief rather than freedom to practice religion.
In contrast with this view of religion, Australia’s fastest growing religions are either non-Christian or if Christian then charismatic or evangelical – religions which play a dominant (by that I mean visible/intrusive) role in the lives of their adherents and
in many instances place the will and law of God above that of secular law.
The promotion of an awareness of religious difference has tended to ignore its infinite diversity - instead, stereotyping and pigeonholing. By treating minority religions as special cases the law has further marginalised and reinforced mainstream Christianity as the bench-mark of normality and neutrality.
Fortunately, it is increasingly recognised that the promotion of awareness is much more effective when instead it asks those in power to examine their own values and assumptions and those implicit in laws
I remember being introduced to a very senior judge (who shall remain anonymous) as a lecturer who taught Law and Religion. The judge appeared somewhat bemused by this and (to give him the benefit of the doubt) apparently without first thinking enquired as to what I could possibly teach in such a unit. "A great deal more of what mattered most to many members of our society than I would possibly ever teach in the mainstream of the law curriculum" was what I was tempted to reply - but of course didn’t.
What are the implications of our lawmakers not being aware of the almost endless implications of the interaction between law and religion?
Such lack of awareness may explain why our law makers have so much difficulty in understanding and accommodating Australia’s Indigenous peoples whose traditions do not separate and differentiate between land, religion and law, and why our multicultural policies are less than successful in accommodating Muslim communities and religions which are unlike mainstream Christianity.
The lack of awareness also reflects certain assumptions held by the dominant sector of our society regarding the role of religion. For example religion is very rarely expressly touched on by law and in the rare instances where it is religion tends to be presented as a problem, an exception or a justification for the lowering of acceptable standards.
While we like to think of ourselves as a tolerant society, our Governments have been reluctant to protect us from intolerance. Thus, for example, Australia’s international obligations relating to racial vilification are still not fully complied with. It took us over 20 years to amend our laws to partially comply.
What has been claimed as "tolerance of difference", may be more appropriately categorised as tolerance for that which does not offend or threaten – that which is acceptable to dominant values. In observing that the nation appears to be losing its tolerance former Chief Justice of Australia, Sir Gerard Brennan recently noted that
Perhaps for the first time in our nation’s history, issues of religion figure highly in consideration of our future. The post September 11 world constantly reminds us that we need to distinguish between religions and acts committed in the name of religion (after all we’ve done so in responding to female circumcision) and that the greatest atrocities can be committed in the name of religion.
Arguments about whether a religion is just and peace loving appear to be futile if we accept the reality that all belief systems are capable of interpretations that are attractive and totally repugnant to liberal western values.
We are also forced to acknowledge that religious freedom and diversity is much more complex than simply attempting to accommodate all religious beliefs and practices.
The attack on the World Trade centre and the more recent bombings in Bali and Moscow reminded us that religious tolerance has its limits. Are we being too understanding? After all, the Waco and Jonestown massacres were also committed in the name of religion, yet we dismissed those involved as brainwashed sect members. Why weren’t the Davidians described as militant/radical Christians?
I'm attracted to the view that the best thing that we can do is not to make grand pronouncements about whether Islam is good or bad, but rather to encourage and accommodate liberal and moderate Islam so that Muslims aren't marginalised and forced into adopting extremist interpretations of their faith.
The portrayal of Islam as a faith, which, unlike Christianity, is static, also needs to be challenged. Perhaps we need to remind ourselves of the atrocities which used to be, and to a less obvious extent still are being committed in the name of Christianity. What appears to distinguish Christianity is that even though numerous atrocities have been committed in its name, the overwhelmingly dominant Christian ethos appears to be one of tolerance and opposition to violence.
To those of us who cherish religious freedom, the foe in the current war on terrorism is more constructively seen as fundamentalism rather than Islam. Recent events have presented us with the menace of fundamentalists in political power, not only in the form of militant Muslims but also in fundamentalist Christians at the helm of democracies. Their common feature is their commitment to imposing their beliefs and values on others and their justification of violence in the name of religion.
The difficult (some would say impossible) task confronting our lawmakers and courts is to stop to consider what it is about religion that makes its practice such a fundamental right. If the freedom of religious practice does indeed warrant state protection (and why should we ASSUME that it does) we must clearly determine what religious practices our society is not prepared to tolerate – but crucially, without in so doing imposing the values of mainstream liberal Western Christianity
Separation of church and state is particularly crucial when the State is involved in prohibiting or imposing values held by some religious groups and rejected by others or those who don’t have religious beliefs. In such cases it is vital that the rationalisation for such laws is secular. Thus, if Kevin Andrews wants to deprive women of their right to choose, and the terminally ill of their ability to decide when to end their lives, then he should have to justify this in secular terms.
Having said that, I would urge that it is up to those of us who value both freedom of religion and freedom from religion to be vigilant and willing to expose religious views camouflaged as secular views being imposed on society.
On the basis of the above outlined arguments, to merely enact more laws, as the HREOC suggested, would be a grossly inadequate and inappropriate means of redressing racial intolerance and discrimination and of protecting religious freedoms.
Commonwealth of Australia 
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