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Reinforcing substantive religious inequality: a critical analysis of submissions to the review of freedom of religion and belief in Australia inquiry.

Introduction

From mid-2008 to Inid-2009 the Australian Human Rights Commission (AHRC) sought to gather views from faith, interfaith and civil society groups on the freedom of religion and belief in Australia. The inquiry set out to examine freedom of religion and human rights in the face of increased religious diversity, and examine the role of religion in the public sphere. It engaged with issues that related tit public funding of religion and faith-based services, and raised the question of whether religious arguments had a legitimate place in public debates. There was a stated attempt to understand the implications of growing religious diversity on the relations between faith groups and the state. A central component of the consultation process involved seeking public submissions, of which 2,033 were received. Bouma and colleagues (2011) reported on the overarching findings of the inquiry, in a report referred to throughout this paper as the Inquiry Report. The focus of this article is different from the findings of the Inquiry Report, as our interest is in critically analysing the 'religious voice' in the public submissions, and the impact of the public submission process on social policy. This article addresses two related research questions. First, what was the nature of the voice expressed in the submissions, and to what extent was this voice reflective of the broader Australian population's views of freedom of religion and belief in Australia? Secondly, if submissions had a particular, interested view of freedom of religion, what implications might this have for social policy and the place of religious minority groups in Australia? The public submissions made overt suggestions on social policies, including religious exemptions from anti-discrimination laws, and the development of anti-religious-vilification legislation, and the commentaries on these matters are the case studies for our analysis.

There is a common sense understanding of democracy in which it is asserted that if all citizens are governed the same way and protected by the same entitlements, then this constitutes equality. Equal treatment by the state may ensure process equality, but might not deliver substantively equal outcomes (Mouffe 1993; Castles 1995; Tholen & de Vries 2004: 461). The uniform treatment of all persons can, and usually does, deliver inequality in peoples' material circumstances. This inequality in outcomes can pertain across religious groups. This may be because individuals from minority groups are less empowered to participate in political processes and to 'profit' from their rights. This means that minorities require additional assistance, from the state and other institutions, to exercise their citizenship (Young 1995: 177; Tholen & de Vries 2004: 456). This is the intellectual basis for the principles of out-reach and targeting which underlie access and equity policy. Reaching for substantive equality in a multi-faith nation would therefore require mechanisms tit specifically assist minority groups. Our theoretical assertion, following those critical philosophers who advocate radical democracy, is that the contemporary state too often privileges dominant religious groups, while professing neutrality, and to the detriment of religious minorities.

Some theorists have contested the theory that assumes consistently unequal outcomes for a group is a reasonable enough test of the fairness of a rule or law. One of the best developed of these critiques, in the realm of religious groups and rights, is that by Brian Barry. Barry (2002) firstly reminds those concerned with social justice that even treatment is a dramatic improvement upon palpably racist or sexist laws and rules, and that such advancement has been hard won. In this sense, state evenness in its treatment of religious groups has great virtue. It would be inappropriate if religious minorities were not given the opportunity to avail themselves of employment or of a service because of their faith. But Barry balks at criticising as unjust a law or practice simply because it could give rise to the members of a religious minority excluding themselves from a job or service. The latter might include a Sikh who feels unable to ride a motor-cycle because of a law that mandates the wearing of a crash helmet and would not accommodate a full turban. The test for Barry is whether a law has an uneven effect on the opportunities available to people across different religious groups (are all people allowed to ride motorcycles), not the (un)evenness of the outcomes (for example, how many Sikhs ride motorcycles). A nuance to this distinction, is whether the rule (be it a proscription or prescription) is reasonable and necessary to advance the public good. Barry argued that assuaging head injuries from mandating crash helmets is in the public interest, and therefore fair. We bring these understandings of fairness and also substantive equality to our analysis of how social policy questions raised within the Freedom of Religion and Belief in Australia Inquiry were advanced.

Many democratic states also subscribe to the idea of state neutrality, or the separation of church and state. Fozdar (2011: 631-2) recently concluded that the supposed secular neutrality of the state in Australia had been found wanting, and that the discourse of political leaders showed that the state was instead privileging 'members of one religious faith over others', and associating the character of the nation with Christianity. The latter can be seen as contrary to political secularisation where the state is seen to affirm its independence from religion. Regardless of one's position within the debate, it has become apparent that religion is increasingly present in the public sphere in many countries previously characterised as socially and politically secular--including Australia (see, for instance, Maddox 2005; 2009). The secularisation trajectory in Western nations (Wallis & Bruce 1992; Wilson 1985; 1998) may have faltered or even reversed (Fozdar 2011). The encroachment of religion within the macro structures of traditionally secular countries can be demonstrated by French President Sarkozy's argument for 'positive secularism'. In a country characterised by a strict separation of church and state, Sarkozy used a welcome speech to Pope Benedict in 2008 to stress the Christian religious heritage of France and argue that religion can play a positive role in public life without threatening the secular state. Worryingly, this suggests that secularist separation, nor even state neutrality, are necessary in a democratic state. Of specific concern is the fading of even professed state neutrality and the increasingly de jure authority of religious supremacism in (some) Western nations.

One of the most pressing challenges facing contemporary societies is how to handle the management of moral and religious diversity--the basis of the recent enquiry of the AHRC. Recent international flashpoints around the management of religious diversity include the wearing of head scarves and other religious symbols within the public sphere of France, as well as the minaret referendum in Switzerland. As the inquiry found, to some Australia is a Christian country, to others it is a secular country, and to others it is multi-faith country. Those who are convinced that Australia is a Christian nation can point to the foundational presence of Christian practices within the polity to affirm their view (for example, the Parliamentary Prayer; the presence of God within the Preamble to the Commonwealth of Australia Constitution Act 1900) (Fozdar 2011: 622-3). Those who see Australia as a secular country can point to section s116 of the Commonwealth of Australia Constitution Act 1900 which proscribes establishmentarianism. There are those who see Australia as officially a multi-faith nation, and they point to sections of the statements on multiculturalism that advocate religious diversity and tolerance (Australian Multicultural Advisory Council 2010: 2). In the conclusion of the formal report of the Freedom of Religion and Belief in Australia Inquiry, Bouma and colleagues (2011) remarked on the conflicted view about the religious character of Australia.

The self-definition and religious character of Australia has been and remains a contentious issue, with various voices advocating Australia as a Christian nation, or as a secular nation, or as a multifaith plural nation. This issue is important, because it influences the way the different voices articulate policy and practice and argue for change (Bouma et al. 2011: 80-1).

The picture that emerged was not just complicated, it also revealed the contested nature of these visions. The analysis revealed that as plurality and presence of religion within the public sphere increases, the scope for shared values contracts and the possibilities for public disputes over basic institutions expand. It could be argued that Australia is entering into a post-secular period in which the management of religion becomes ever more necessary. Jurgen Habermas' (2008) approach to post secularity, however; implies that rather than a divisive role, the inclusion of religious arguments in public debates could enhance social cohesion through respectful debate. As stated above, our aims in this paper are to report on the nature of the voices expressed and the representativeness of claims made, as well as to reflect on the social justice implications of the public submission process. In answering these questions, the conceptual work in this area directs attention towards the outcomes from the inquiry and to what can be said about the fairness of the process.

Context

The context for our discussion of freedom of religion and human rights is one of increasing religious diversity and the shift of religion from the private to the public sphere. The latter entails a more robust contribution to the development of various social policies. These are areas of public life and public policy where religion and the state intersect. There is no national Bill or Charter of Rights in Australia to provide protection of religious and human rights, though there are State-based versions in the Australian Capital Territory (ACT) and Victoria. In the absence of national protections, religious and belief organisations, particularly outside the ACT and Victoria, turn to patchy anti-discrimination and anti-vilification laws. The Constitution also speaks to freedom of belief and religious rights. Section 116 states that:
   The Commonwealth shall not make any laws 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 public trust
   under the Commonwealth.


Determining the extent of this freedom, especially for minority groups, was central to the overall mission of the inquiry. The Australian public were asked to evaluate freedom of religion and address a number of specific issues, including what are the rights and responsibilities of religious, spiritual and civil society organisations, and to assess the effects of recent changes to State, Territory and Commonwealth legislation. Essentially there was an attempt to gauge if belief and religious practice were sufficiently protected. Previous research has indicated that Section 116 has been limited in its application, applies only to the federal government, and has had marginal legal use in the defence of minority religious groups (Niland 1985; Richardson 1995: 199-201; Evans 2012: 476-78).

The colonial religious heritage of Australia is of an Anglican-Protestant majority. The change in the religious landscape of Australia, and therefore its identity, changed drastically from 1971 (with the rescinding of the White Australia Policy in 1972). This saw not only an increase in religious diversity but also the shift to a Catholic majority. Data from the Australian Bureau of Statistics (ABS) indicates that Anglicans dropped from 39 per cent in 1947 to 22 per cent in 1996 and in 2006 sat at 18.7 per cent--with clear indications that this downward trend will continue. Meanwhile the growth of Catholicism was marked during this time period (from 20.7 per cent in 1947 to 27 per cent in 1996 and 25.8 per cent in 2006) although recent statistics reveal a slight decline of those who identify as Catholic. Areas of growth outside of this Christian majority (at 63.9 per cent in 2006) can be found in a number of religions, but significantly in Hindus and Muslims where the growth rate from 2001 to 2006 is recorded at 55.8 per cent and 20.6 per cent respectively. The 'no religion' category has also demonstrated significant growth at 27.6 per cent over the same period (Bouma et al. 2011). There has accordingly been a shift from the Anglican-Protestant hegemony of early colonial Australia to a Catholic-Anglican hegemony (Bouma 2006). This has occurred with the simultaneous growth of those who declare no religion, growth in Hindu and Muslim populations and a rise of new religious movements.

These affiliation statistics hint towards the institutional context of religion within Australia. Bouma (2004) has characterised this through a number of features. There was a strong Christian establishment and an enduring institutional legacy. However, in contrast to that of the United States, the nature of Australian religion and spirituality is a 'shy hope in the heart'. As Bouma (2004: 2) argued, it has not been characteristically Australian to 'trumpet encounters with the spiritual [...] Australians hold the spiritual gently in their hearts, speaking tentatively about it'. Bouma (2004) pointed to the Australian notions of the 'fair go' and 'egalitarianism' as second and third contexts important to religion in Australia. He argued that they encourage an institutional context that has promoted civility and a 'harmonious productive society' where religious intergroup tension has remained at a minimum (2004: 335). Bouma's portrayal is of a 'low temperature'--an increasingly religiously plural society that is 'essentially tolerant of religion, disinterested in religious difference, and prefers religion at a distance' (ibid.). One reason for the relative low temperature of religion in Australia may be the largely unchallenged primacy of Christianity. Of course, the subdued political visibility of religion does not square with the social sectarianism between Catholics and Protestants that divided Australia for two centuries. A shift from the 'shy' private religion to a more prominent public role for religion is manifest in the public submissions, and has been demonstrated generally through an increased presence of religion in recent policy debates and social service provision. And while there may have been a tradition of the 'fair go' and 'egalitarianism', as Bouma (2004) asserts, that did not necessarily extend to the beliefs of Indigenous people and faiths of non-Christian migrant groups. Our examination of the public submissions demonstrates the shift to more prominent public roles for religious groups and organisations. Christian groups defined the nation and culture in their own terms, advocating their privilege and justifying their own exemptions from discrimination instruments (see, for instance, Fyfe 2011; Mart, 2011a, 2011b).

Tom Calma, the then Race Discrimination Commissioner and Aboriginal and Tortes Strait Islander Social Justice Commissioner, released the Discussion Paper for the inquiry with a speech entitled 'Like oil and water? The intersection of freedom of religion with belief in human rights' (Calma 2008). Calma reflected on the increased presence and influence of religion in the public sphere, and asserted the apparent incommensurability between religious convictions and human rights. The recent increasing public and political involvement of religions within Australian social policy have been seen as a somewhat anti-modern influence on society. Media bites have operated through dualisms of 'creationism versus evolutionism', 'cults and cult survivors', and the perceived schism between religion and science. The implicit negative framing of religion in the public sphere in conjunction with the shift in the religious landscape could well lead to feelings of defensiveness on the part of certain religions. The submissions reveal varying degrees of defensiveness and resentment on the part of Christians (explored below).

There are two principal social policy debates through which these assertions and claims were most obviously tested (Evans 2012). The two hot spots included consideration of a legislative extension of the prohibition on religious vilification, and the re-consideration of whether exemptions from the provisions of anti-discrimination laws were appropriate for religious organisations. The first of these debates concerns the legality of religious vilification and the asserted need for that right by some religious groups. Some religious groups argue they need to be able to legally vilify other religions as part of their own practice and proselytising (Evans 2012: 487-89). But is vilification essential to religious practice? The United Nations have endorsed laws against vilification as being universally in the public interest (International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations General Assembly: Article 4; International Covenant on Civil and Political Rights, 16 December 1966, United Nations General Assembly: Article 20(2)). As we show below, opponents of anti-vilification provisions argue that the state should not interfere with freedom of speech. Yet, the state regulates speech and all manner of behaviour, especially that which does harm.

A second hot spot of social policy debate within submissions to the inquiry was whether religious groups should continue to be able to gain an exemption to the anti-discrimination laws (Evans 2012: 481-87). These exemptions allow religious organisations to exclude persons of different religious backgrounds (or atheists, or people with lifestyles deemed inconsistent) from being employees within their organisations. This includes discriminating against job applicants for their schools and welfare organisations. The defenders of the exemption argue that only people with the same religious convictions can deliver their education and welfare services in an appropriate manner. Yet, critics of the exemption would argue that the law is an a priori exclusion which discounts the opportunity of people to demonstrate their suitability. Given that religious organisations are such large employers, and providers of services, the exemptions present a major public risk to opportunity (Evans 2012: 487). This would make the exemption unfair in terms of both process (denial of opportunity) as well as outcomes (unevenness).

Background to the data

As stated above, in 2009 the AHRC received 2033 submissions to the Freedom of Religion and Belief in the 21st Century Inquiry. Submissions to the inquiry were a source of data that could be systematically examined to ascertain the religious voice of those who participated in the inquiry. The submissions were an appropriate source of data to explore the politics of a public submission process. A coding framework was developed by a project team, staff from the AHRC, and two of the authors, Dunn and Nelson, to analyse the submissions. One of our aims was to examine the representativeness of the religious voice in the submissions, and the coding framework was set up in such a way so that we could, where possible, compare the views and attitudes expressed in the submissions to those of the general Australian population. Overwhelmingly, most submissions came from individuals, couples or family groups (91.5 per cent). As shown in Table 1, other contributions came from organisations, most commonly these were representative religious organisations or local religious organisations (6.1 per cent). Fourteen per cent (277) of submissions used the online questionnaire template provided as part of the call for public comment. Submissions were relatively evenly split between those that dealt with a single issue only (47.2 per cent) and those that addressed multiple issues (52.8 per cent). Christian groups made up 61 per cent of all organisation submissions and just over 84 per cent of religious organisation submissions.

In addition to the submission process, the inquiry also had an outreach component. Consultations were held in every State and Territory, and faith group and associated leaders consulted represented 98 per cent of the Australian population with a religious affiliation (24 consultations with 274 participants) (Bouma et al. 2011). However, organisations with less than 10,000 followers within Australia were not included within this part of the consultation process. Although the Inquiry Report can claim to be representative, there were no open public for a during this review and the focus groups were facilitated discussions by invitation only. The Australian Christian Lobby successfully demanded a focus group be held where no other religious group would be present. The Australian Christian Lobby's solo focus group reinforced the over representation of the Christian majority voice. In general, the 'Christian voice' could be characterised as defensive and resentful of the legitimacy offered to non-Christians and atheists. The dominance of the Christian 'religious voice' was also seen in the submission process, as detailed in the following sections.

Dispositions toward faith and religion

Most of the 2,033 submissions did not express a general attitude towards religion. Of the just over five per cent who did, most (n=73, 3.6 per cent) (1) stated religion is generally a positive thing. A smaller proportion of the submissions were negative about religion in general (n=36 or 1.8 per cent). According to a survey carried out by the International Social Survey Programme (ISSP) in 1998, the Australian population is relatively pessimistic about religion, with 70 per cent agreeing that religions bring more conflict than peace (see Table 2). In this survey only about one in ten Australians were of the view that churches and religious organisations need more power than they currently have. Fifty-eight per cent of respondents were satisfied with current levels of influence among churches and religious organisations. This suggests that satisfaction with current arrangements is fairly widespread. A significant minority (31.7 per cent), however, were concerned about churches and religious organisations having too much power. About a quarter (26.5 per cent) of survey respondents asserted that Australia would be a better country if religion had less influence. This suggests the submissions to the Freedom of Religion and Belief Inquiry were generally more positive about religion than is the Australian population.

Attitudes within the submissions

About one in 10 of the submissions to the Freedom of Religion and Belief Inquiry expressed support for Australia as a multicultural country that values diversity and accepts religious differences. It is important to note that the remaining 90 per cent of submissions simply did not make reference to multiculturalism in their submission. This is perhaps unsurprising, as the submission process did not directly address multiculturalism. It does indicate, however, that in many cases Australians do not equate religious diversity with multiculturalism, as it tends to be cultural and linguistic diversity that are most commonly emphasised, though the current model of Australian multiculturalism makes explicit reference to cultural, linguistic and religious diversity (Australian Government 2011). Attitudes toward multiculturalism amongst the 90 per cent who did not refer to multiculturalism are therefore unknown.

Fifty-nine submissions (2.9 per cent) expressed the view that it was a good thing for society to have religious diversity. A larger portion of the submissions, 186 (9.1 per cent) felt that religious diversity in Australia was not a good thing. The remaining 88 per cent of submissions did not address this issue. Of those 245 submissions that expressed an opinion on religious diversity, 75.9 per cent were negative. However, support for multiculturalism and diversity is high in the Australian population. National data collected by the Challenging Racism Project demonstrates that Australians are very supportive of multiculturalism, with 88 per cent agreeing that it is a good thing for society to be made up of people from different cultures (Challenging Racism Project 2001-2008). As can be seen in Table 3, only 6.2 per cent of respondents disagreed with the proposition that cultural diversity is good. From the available evidence, contributors to the Freedom of Religion and Belief Inquiry are less supportive of diversity than the general population, with nine per cent taking the opportunity to express concern about diversity (compared to only six per cent of respondents to the Challenging Racism Project survey). Moreover, of those that overtly revealed a view on religious diversity (245 submissions) the proportion that were negative (76 per cent) was much higher than is apparent in the Australian population.

There were 284 (14 per cent) submissions that expressed pro-assimilation viewpoints. In addition, some 19 per cent of submissions expressed feelings of threat or insecurity about religious diversity/difference in Australia. In a nationwide survey, the Challenging Racism Project asked Australians whether they felt secure with people of different ethnic backgrounds. Only about nine per cent of respondents disagreed, indicating they felt threatened or insecure (Challenging Racism Project 2001-2008). While this question has a more personal orientation than the submissions and deals with ethnic rather than religious difference, it indicates that contributors making submissions were relatively more worried about difference and diversity than the general population.

Only a minority of submissions directly addressed equality across race, religion or ethnicity, with 78 (3.9 per cent) submissions putting forward the view that all persons are equal and 53 (2.6 per cent) arguing that all persons are not equal. This means that of the 131 submissions that discussed the equality of race, religion or ethnicity, about 40 per cent made an argument that all persons are not equal. Many more submissions implied that a racial or religious hierarchy exists, giving an indication that many contributors believe that all 'races', ethnic groups, or, most commonly, religions, are not equal. Almost one in three of the submissions (n=643, 31.6 per cent) implied that there is a hierarchy in which some faiths or cultures are superior and others inferior. For example, one such submission stated:

We believe that all other religions should be required to submit to Almighty God ... We do not deny those religions the right to flourish, but we do deny their right to break the law, set up their own laws and courts, allow a morality that offends Christian values, or otherwise oppose the place of the Christian god as the god of Australia (Sub. 405, Full Gospel Assembly Melbourne).

According to the Challenging Racism Project data approximately 11 per cent of the general population disagree or strongly disagree with the statement, 'All races of people are equal' (see Table 3). This indicates that amongst the contributors who addressed this issue in their submission a higher proportion contest the equality of races, ethnic groups, or religions, than the general population. It is important to remember that many of the submissions did not indicate their view regarding the equality of persons, thus it is not possible to compare these contributors' views to those of the general population. However, from those submissions where it was possible to discern the author's disposition on hierarchies, it emerges that contributors to the Freedom of Religion and Belief Inquiry were more likely to possess supremacist views on faiths, culture, or 'races' than the general population.

About one in five (n=415, 20.4 per cent) of the submissions included criticism of specific cultural or religious groups. This compares to over 40 per cent of Australians who stated that there are cultural or ethnic groups that do not fit into Australian society, according to data collected by the Challenging Racism Project. Note that people making submissions were not prompted on their disposition towards minority groups, whereas they were in the Challenging Racism Project surveys. This makes direct comparison difficult. Of the criticism in the submissions, a substantial proportion was directed at Muslims. Some 17 per cent of submissions included critical commentary about Muslims. In the national data from the Challenging Racism Project, just over 20 per cent of respondents indicated they would be very or extremely concerned if a close friend or relative were to marry a person of Muslim faith. In addition, 1,687 respondents to the national survey (13.5 per cent) cited Muslims as a cultural/ethnic group that does not fit into Australian society. This indicates similar levels of antipathy toward Muslims among the submissions and the general population. However, the antipathy in submissions to the Freedom of Religion and Belief Inquiry was not prompted, whereas respondents in the above-mentioned national surveys were. This means that the un-prompted anti-Muslim antipathy of the submissions rivalled the levels of prompted antipathy in the national survey. This could be interpreted as an inflated presence of anti-Muslim feelings among those making submissions. The Inquiry Report also noted the strong levels of anti-Muslim sentiment within the public submissions they had received (Bouma et al. 2011: 71-72, 81-83).

Religion and the state in Australia

About one-quarter of the submissions made a comment on religion's relation with the state; the rest made no comment on this topic (see Table 4). The majority of submissions that discussed the relationship between religion and the state argued that their own religion should have more influence on the state (than it currently does or more than other religions have). When comparing the submissions to responses to a nationally representative survey on religion (International Social Survey Programme 1998), albeit one that is more than 10 years old, the submissions tend to be much more positive about close links between religion and the state than the general population. For example, when asked in the nationwide survey, 'Do you think that churches and religious organisations in Australia have too much power or too little power?', the vast majority of respondents felt that churches and religious organisations had enough power (89.4 per cent). As can be seen in Table 2, only one in three (31.7 per cent) felt that churches and religious organisations had too much or far too much power. In comparison, of the 507 submissions that mentioned this issue, 81.3 per cent were in favour of close links between the state and religion, particularly their own religion. This compares to only 10.7 per cent in the nationally representative survey who felt that churches and religious organisations should have more power. Authors of submissions are more likely to be supportive of church/religious influence on the state than the general population. Overall, the general population is more secular in orientation than the contributors to the Freedom of Religion and Belief Inquiry.

About six per cent of the submissions to the inquiry (n=119) asserted that Australia should see itself as a secular country. The Inquiry Report commented that secularists perceived a creeping of faith into government decision-making. 'Concern was expressed regarding the perceived growing influence of religious lobby groups in Australia, and their perceived influence in government policy-making and decisions' (Bouma et al. 2011: 82). This is a view shared by recent analysts of political discourse and policy-making (Maddox 2005; Warhurst 2007; Crabb 2009: 263; Fozdar 2011). However, many more submissions were concerned that secularism presented a problem to religious belief and freedom in Australia. About 14 per cent of submissions (n=282) expressed the view that religion in Australia was currently being threatened by secularism. Authors of the Inquiry Report stated that:

Religious groups are concerned that religion is under threat from what was termed 'aggressive secularism', and that the role of religion and its contribution to the social and economic advancement of the community is undermined, and a lack of respect for faith and people of faith exhibited (Bouma et al. 2011: 82).

Almost 40 per cent of submissions (n=802) asserted the idea that Australia should see itself as a (Judeo-) Christian country (Table 5). In the Australian Survey of Social Attitudes 2003, just over 36 per cent of respondents said that being Christian is important or very important to being truly Australian (Wilson & Gibson 2003). This indicates that Australians' feelings towards secularism and views on the relation between religion and the state are somewhat inconsistent. In the face of an increasingly multicultural and multi-religious landscape many Christian submissions represented their faith as the 'core' culture, and were despondent or resentful of its displacement from the centre of Australian cultural life. Taken together, this indicates that there was substantial antipathy towards secularism. Only a small minority (six per cent) asserted that Australia should see itself as a secular country.

Comments on religious exemptions, protections and vilification legislation

Table 6 provides an overview on the expressed attitudes toward government legislation for religious freedom and equal opportunity. In broad, the submissions were opposed to further human rights protections for religious freedom, against legislation to prohibit religious vilification, and in favour of exemptions from the provisions of discrimination laws (in order that they can 'lawfully' discriminate). Of the 1,029 submissions that mentioned exemptions, 92 per cent were in favour of religious groups receiving exemptions. The overwhelming support for religious exemption might seem surprising; however, as noted above, the majority of organisation submissions stemmed from Christian religious groups and at the same time the majority of religious-run social services--such as education, aged care, hospitals and social welfare--are Christian run (Ferguson 2006; Marr 2011a). As demonstrated within Table 6, many submissions chose not to address this issue (49 per cent), and some argued against the exemptions (4 per cent). For example, the Jewish submissions provided a clear argument against not only exemptions but also the delivery of government services by religious bodies as it could: 'lead both to the possibility of discrimination and to the undue influence of religious doctrine in the provision of such services' (Sub. 203, Executive Council of Australian Jewry).

In a recent submission to the Inquiry into the Human Rights and Anti-Discrimination Bill 2012, the Uniting Church also called for the scaling back of 'blanket exemptions' to discriminate, arguing they were unnecessary and resulted in there being 'no incentive for that body to ensure that it does not discriminate, and no incentive to promote equality and inclusion in areas of employment and representation other than those leadership positions necessary to maintain the integrity of the religious organisation' (Uniting Justice Australia 2012: 8).

However, as with the Human Rights and Equal Opportunity Commission's (HREOC) earlier 1998 inquiry into religious freedom and the right to non-discrimination in employment, the Christian organisation submissions largely argued for exemptions. The large volume of submissions in favour of exemptions suggests the possibility of a coordinated campaign. The intention of such a campaign would have been to influence public policy on the matter of discrimination legislation. As highlighted by Bouma (2004: 338), the main recommendation of the HREOC Report of 1998--the provision of a Religious Freedom Act--was not implemented due to a number of factors including the Attorney-General's proclamation that there were 'no wide ranging problems associated with freedom of religious and belief' as well as the majority of submissions being opposed to the legislation. Although there was recognition that the opposition stemmed from the Christian majority and did not reflect the lived experiences and recommendations of other faiths, introduction of the legislation was presented as potentially causing division rather than unity. The arguments of the Christian organisations and individuals in the two inquiries, although more than a decade apart, were strikingly similar. This claim is based on our qualitative analysis of the religious submissions and earlier research on the HREOC inquiry of 1998 and the submissions surrounding that. The argument used then was exactly the same as in the current enquiry.

A number of submissions documented incidences of religious discrimination and religious harassment, including those experienced by members of some Christian denominations. Well over a decade ago HREOC (1998) reported that members of religions such as Jehovah's Witnesses, Seventh Day Adventists, Jews, Orthodox Christians, Muslims, Sikhs and Scientologists (as well as a number of lesser known minority groups) were most likely to be the victims of religious discrimination. The recent submissions reflect a continuation of this trend with all Muslim, Jewish, and other minority religious organisations (such as Pagans and Scientologists) dedicating large sections of their submissions to the discrimination their adherents are exposed to. The Inquiry Report recounted the ways in which freedom of religion was impaired for Australian Muslims and other minorities (Bouma et al. 2011: 69-70). Previous empirical research has also affirmed that non-Christians endure higher rates of racism (Dunn et al. 2009), and that they experience substantive inequality in terms of life chances (Hassan 2008) and their ability to construct places of worship and private schools (Dunn 2001). The authors of the Inquiry Report also described how many of the public submissions to the inquiry, including those from some non-Muslims, recognised the problems that such minority groups faced in Australia (Bouma et al. 2011: 72). The Inquiry Report, however, stopped short of making a set of recommendations to the AHRC or to the government that would redress these concerns.

The Christian majority, across the bulk of the submissions, also pointed to acts of discrimination which were argued to stem from the consequences of legislation such as the Racial and Religious Tolerance Act (VIC) 2001, the Abortion Law Reform Act (VIC) 2008, and the Victorian Charter of Human Rights and Responsibilities. The Australian Christian Lobby was the most vocal in its argument against the legislation. The majority of the Christian groups made reference to at least one of those pieces of legislation to demonstrate their perceived discrimination. The Catch the Fire Ministries versus the Islamic Council of Victoria case2 was commonly cited as a case study to demonstrate the risks associated with 'government entanglement with religious matters particularly through religious vilification laws, antidiscrimination laws and bills or charter of rights' (Submission 780, Presbyterian Church of Qld). This legislation was argued to have 'imposed profound restrictions on religious freedom (and freedom of speech)' (Sub. 95, Family Voice Australia) and to 'promote more conflict than now exists' (Sub. 84, Presbyterian Church (SA)). These Christian groups and individuals felt that the anti-vilification instruments were impairing their freedom to assert the superiority of their belief system and the inferiority of others. The emergence of a Habermasian vision of dialogic consensus has clearly not occurred within this component of the inquiry. Indeed, most of the submissions were devoid of cross-faith respect.

Although the percentage is low (only 3.6 per cent of submissions), there was a call for further protection of religious freedom through legislation. Each submission from an Islamic, Jewish,' Pagan, or other New Religious Movements (NRMs) (such as Scientology) supported the call for further legislative protection. Muslims argued that 'the absence of consistent legal protection from religious discrimination and vilification across the country is of concern' (Sub. 1260, Australian Islamic Mission). However, the bulk of submissions from organisations stemmed from Christian groups. Christian groups, with one exception,4 labelled such legislation as 'divisive' and an 'attack against freedom of speech and religion'. The submission and inquiry process was one in which majority groups were able to lodge a volume of opinion that stacked heavily against additional human rights assistance for minority religious groups. As mentioned earlier, anti-Muslim sentiment was strongly present in the submissions. While the Inquiry Report acknowledged the problems faced by Muslim Australians, they omitted provision of any recommendations on how those facing such difficulties might be better protected. Through this omission the Inquiry Report left the status quo demands of the Christian groups largely unchallenged.

Jakubowicz (2006) argued, that since 2001, Australian political life has been dominated by the challenges of constructing the notion of a single 'people' in circumstances of increasing diversity, including religious diversity. Non-Christian groups, especially Muslims, have been a target of suspicion following events like the terror attacks on New York, the Pentagon and United Airlines flight 93; the bombings in Bali in 2002 and 2005; and the Madrid and London bombings of 2004 and 2005. Anxiety about religious diversity emerged more strongly during this time, where the 'low temperature' of religion has shifted to a higher temperature. During this period a number of monoculturalist articles have been published in the mainstream media. The authors have attacked 'multiculturalism' and included explicit recommendations to restrict further immigration of Muslims into Australia. Take for example the 'One nation, one culture' commentary by John Stone in The Australian (22 July 2005, cited in Jakubowicz 2006): 'official multiculturalism policies must be abandoned outright. That does not mean we should cease receiving immigrants (albeit more selectively). [...] we must sharply reduce, indeed virtually halt, Muslim immigrant inflow'. This article is representative of the rise of exclusionary discourses in the public debates around cultural and religious difference. Non-Christian faiths, and especially Muslims, have been targets of complaint in political discourse. Critical analysis by Australian social scientists has exposed the electoral drivers of those political campaigns and attacks (Poynting & Noble 2003; Maddox 2005; Dunn & Kamp 2012).

Concluding comments

The first research question posed in this paper was examining the nature of the religious voice of the submissions to the Freedom of Religion and Belief Inquiry. One striking difference between those making submissions to the inquiry and the general population is the average levels of interest in religion and their disposition towards it. Parties contributing to the inquiry had a strong interest in the role of religion in society and this gives them a different perspective from the general population. Those making submissions were also, somewhat expectedly, parochial about the status and importance of their own faith. Hence they were less positive about religious diversity, more likely to be culturally supremacist (that is, to perceive religions as in a hierarchy--with some inferior to others), and they were more likely to independently express anti-Islamic sentiment. Belief in Christian supremacy was stronger among the submissions than pertains in the general population.

The second question addressed in this paper was about the appropriateness of the public submission process as a means to develop social policy. In this instance the social policy matters regarded freedom of religion and belief; specifically religious vilification legislation and exemptions from religious discrimination provisions. Increasing religious diversity is forcing a reconsideration of some assumptions about Australian identity and character. In the face of a multicultural and multi-religious landscape, the conservative Christian groups represented themselves as the 'core' culture--one that existed in Australia prior to the immigration waves that created the pluralistic religious landscape. These specific Christian-centric, and in some cases Christian-supremacist, voices purposefully set out to undermine the social movement towards more inclusive policy and protection of rights. All the more disappointing is that the 2009 inquiry was the third unsuccessful attempt to produce insight and a way forward (Bouma et al. 2011: 2). The previous attempts were in 2004 and 1998 (HREOC 2008.5). The Christian majority insisted that their position of dominance be affirmed in Australia, and the public submission process was an effective mechanism for re-asserting their privileged influence upon the state.

Is a public inquiry with its call for input and a submission process a reliable means to generate democratic outcomes? One defence of the consultative process might be that all groups have been consulted and all groups treated equally in this process. There was indeed a strong attempt to be democratic, with open submissions and outreach to some key stakeholders. The AHRC secretariat and the Inquiry Report authors certainly gave strong credence to the 2,033 submissions which were all analysed and absorbed. Yet the weight given to the Christian 'majority' and the reticence to suggest mechanisms to confront religious inequality, all serve to counter the claim that progress towards substantive equality was delivered. The public submission and inquiry mechanism as a means of democracy is an open process, in which weight of argument and persuasiveness are the determinants of influence. But this could be read as an example of professed state neutrality which has the effect of delivering and confirming substantive inequality (Ngui 2008; Fozdar 2011: 632). Christian groups, who had the benefits of effective establishmentarianism, were able to flood the submission process with their vested cases for religious privilege, such that the status quo on religious entitlement prevailed.

At the base of the inquiry was an attempt to understand the implications of the growing diversity of belief and faith systems in Australia with an increasing intersection of religion and the state. The final report was clearly defined as a report to the AHRC rather than a report by the Commission. Yet the Inquiry Report only infers the need for the Federal Government to pursue the development of a national social inclusion policy and programme agenda. It is appropriate to question if the process of the inquiry was sufficiently democratic, and whether it was inclusive of the needs of a diverse citizenry. The 'majority-ness' of the submissions is a likely explanation of the reticence of the Inquiry Report authors, the AHRC and the Government, to make recommendations to improve the freedom of religion beyond that enjoyed by the Christian majority, and to protect religious minorities from vilification. The terms of reference of the inquiry, as articulated in the inquiry paper, were categorised under seven headings and included 46 specific questions. Many of these 46 questions spoke overtly to issues such as: religious equality, the relation between faith groups and the state, how well incitement was being policed, how well religious tensions were being managed, and whether there was adequate protection against religious discrimination (HREOC 2008: 8-10). The Inquiry Report made no recommendations on those matters, the Commission made no public recommendations to government, and the government has taken no action as a consequence.

Should social policy, such as protection of freedom of religion and protection of minorities' human rights, he matters determined through a public submission process? The submission process privileges those with a vested interest, and in this case they were very specific sub-sections of 'the public'. These sub-sections dramatically influenced social policy to suit their narrow interests. The substantively unequal outcomes of this process are not consistent with a conviction that human rights (such as freedom of religion) are universal. If the measure of a civilisation is how well it treats minorities, and strangers, then the current Australian processes around consulting on social policy regarding religion look rather uncivil(ised). It may be that substantive inequality would require unequal treatment to redress religious privilege. Furthermore, it may be that redress through social policy development might involve reaching out for the opinions and needs of minorities, especially if the process of consultation is one through which the opportunity to be heard might be limited by the lack of resources or skills possessed by minorities. The development of policy and laws that assuage extant advantage and privilege might be especially difficult through a policy process which allows majority opinion to dominate and to vanquish voices from the margin. A process of consultation which professes state neutrality, but which effectively allows majority voices to dominate, and denies the opportunity to minority groups, such as the public consultation processes around the freedom of religion in Australia, fails the tests of both fairness and substantive equality.

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Endnotes

(1.) Here and in the following sections, 'n' refers to the number of submissions that make a particular statement or expressed a given view. Unless otherwise stated, the percentage refers to the proportion of submissions making a particular statement relative to the total 2,033 submissions.

(2.) The complaint in this case arose from a seminar on Islam presented by Pastor Daniel Scot in March 2002 in Melbourne organised by Catch the Fire Ministries. Present at the seminar were three recent converts to Islam who later lodged a complaint claiming that the seminar incited hatred against Muslims in Australia. The Islamic Council of Victoria also became involved in the case.

(3.) The Institution for Judaism and Civilization described acts of discrimination against the Jewish population, but they nonetheless argued against further legislative protections of religious freedom.

(4.) An exception was the submission from the Quaker Peace and Legislation Committee (sub. 1,302) which did not argue against further protection of religious freedoms. In fact, the group explicitly promoted a multi-faith Australia and proposed that 'The use of The Lord's Prayer to open Parliamentary proceedings could be replaced by use of an inter-faith version to reflect the changed religious composition of today's Australian population'.
Table 1: Background of submissions

Background                                     Number      %

Anonymous/unknown                               12       0.6
Individual, couple or family group              1,861    91.5
Group of individuals (for example, petition)     11       0.5
Religious organisation (local)                   48       2.4
Religious organisation (representative)          75       3.7
Non-religious organisation                       23       1.1
Faith-based organisation *                        3       0.1
TOTAL                                           2,033     100

NB: Percentages may not add to exactly 700 per cent due to
rounding

* Refers to organisations not classified as religious
but faith-based, for example, pagans.

Table 2: Attitudes to religion, from ISSP 98--Religion II survey
and submissions to the  Freedom of Religion and Belief in the
21st Century Inquiry.

                                             Agree (%)

Looking around the world, religions bring       70.6
more conflict than peace

Australia would be a better country if          26.5
religion had less influence

Churches & religious orgs have far              31.7
too much / too much power

Submissions which expressed a negative          1.8
view about religion

Sources: Australian Survey Social Attitudes 2003 (N=1,310);
submissions to the Australian Human Rights Commission (AHRC)
Freedom of Religion and Belief in the 21st Century Inquiry
2010 (N=2,033).

Table 3: Attitudes--the Challenging Racism Project Survey
and submissions to the Freedom of Religion and Belief in the
21st Century Inquiry

                                                  n           %

Good thing for society to be made up of          761     6.2 disagree
people from different cultures

You feel secure when you are with               1,130    9.2 disagree
people of different ethnic backgrounds

Submissions which argued that                    186         9.1
religious diversity in Australia
was not a good thing

Submissions that expressed feelings of           386          19
threat or insecurity about religious
diversity/difference in Australia

Submissions that expressly discussed           186/245       75.9
religious diversity in Australia, and
took the view that it was not a good thing

Submissions which expressed                      284         14.0
pro-assimilationist views

All races of people are equal                   1,350        10.9

Submissions which expressed the view             643         31.6
there was a racial or religious hierarchy
in which some faiths and cultures are
superior and others inferior

Sources: Challenging Racism Project Survey (N=12,517); submissions
to the Australian Human Rights Commission (AHRC) Freedom of Religion
and Belief in the 21st Century Inquiry (N=2,033).

Table 4: Comments on religion and the state, submissions to the
Freedom of Religion and Belief in the 21st Century Inquiry

                                           N        %     % comment

Religion should not influence state        95      4.7       18.7
Religion should influence state           161      8.0       31.8
My religion should be more influential    251     12.4       49.5
Sub-total                                 507     25.1       100
No comment                               1,517    75.0
TOTAL                                    2,024     100

Source: Submissions to the Australian Human Rights Commission (AHRC)
Freedom of Religion and Belief in the 21st Century Inquiry (n=2,033).
NB: Percentages may not add to exactly 100 per cent due to rounding.

Table 5: Views on Australia as secular or Christian, by type
of submitter (percentages)

                          Australia should see        Australia should
                          itself as a (Judeo-)        see itself as a
                            Christian country         secular country
                      ([chi square](3)=15.27,
                                p=0.002)                 (n/a *)

Type of submitter

Individual                        40.4                      5.3
or group of
individuals
(n=1,867)

Religious                         42.6                      0.0
organisation
(local) (n=47)

Religious                         34.7                      9.3
organisation
(representative
group) (n=75)

Non-religious or                   3.8                      50.0
faith-based
organisation (n=26)

TOTAL (n=2,015)                   39.8                      119

* Chi-squared analysis not appropriate for examining views on
Australia as a secular country as there were too many cells
with low counts.

Source: Submissions to the Australian Human Rights Commission (AHRC)
Freedom of Religion and Belief in the 21st Century Inquiry (n=2,033).

Table 6: Views on exemptions, protections, and vilification
legislation, submissions to the Freedom of Religion and Belief
in the 21st Century Inquiry

                                           Frequency    Percentage

Religious groups      Should receive          948          46.8
should/should not     exemptions
receive exemptions    Should not               81          4.0
                      receive exemptions
                      No comment              995          49.2
                      Total                  2,024         100

Perceives need        Yes                      73          3.6
for additional        No                     1,571         77.7
protections (of       Unclear/                379          18.7
religious freedom)    no comment
                      Total                  2,023         100

Support/opposition    Support                  26          1.3
to religious          Qualified support        22          1.1
vilification          Opposition             1,484         73.4
legislation in        Unclear/no comment      490          24.2
principle             Total                  2,022         100

Source: Submissions to the Australian Human Rights Commission (AHRC)
Freedom of Religion and Belief in the 21st Century Inquiry (n=2,033).
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Author:Nelson, Jacqueline K.; Possamai-Inesedy, Alphia; Dunn, Kevin M.
Publication:Australian Journal of Social Issues
Article Type:Report
Geographic Code:8AUST
Date:Mar 22, 2012
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