Religious freedom in the Constitution

Last week Dutch MP Geert Wilders arrived in Australia to help launch a new party, the Australian Liberty Alliance. Wilders is described as a controversial global figure. From the moment he got off the plane was followed by a throng of tight security, very loyal supporters and a group of angry protesters.

Only a few weeks ago the media were discussing whether the Immigration Minister should deny the anti-Islam Wilders a visa into Australia, but he arrived to support the Australian Liberty Alliance. They are one of the new anti-Islam, anti-multiculturalism parties that have cropped up in recent years.

Early last week on the ABC’s 7.30 Greens Senator for WA Scott Ludlum stated his view on Wilders arrival in Australia:

We're a wonderfully successful example of multiculturalism. It's got its flaws and it's got its stresses and tensions and Mr Wilders' job appears to be to make those things worse and drive a wedge into our community. It's the last thing we need at the moment.

He then went on to discuss the name of the party, Australian Liberty Alliance:

If they're about liberty, liberty for who? Liberty's about freedom, and to my mind, including in the Australian Constitution, if they'd bother to go read it, it's about freedom of religion.

So if this new party had read the Constitution, what would they find out about religious freedom and liberty? Let’s have a look.

Rights in the Australian Constitution

It’s a fact that we don’t have many rights in our Constitution. Most of our rights are protected by legislation and common law. There are people that are happy with this arrangement and then there are others who would like Australia to implement something like the US Bill of rights.

One of the important provisions for the protection of rights and freedoms in the Constitution is Section 116, which places a limit on the law-making power of the Federal Government in respect to religion:

Section 116 Commonwealth not to legislate in respect of religion
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. 

During the process of drafting the Constitution in the 1890’s religion clauses for both the State and Federal Governments were moved in and out and around the document. There was huge debate around freedom of religion.

Because of all this movement, the final version of the religious freedom Section is found in the States chapter. The original plan was to also limit that power of the States to make legislation in respect to religion. However in the final conventions this was overturned and consequently the States do have the power to legislate in respect to religion. In fact a number of states have legislation in place that prohibits discrimination on religious grounds. The Federal Government does not have equivalent laws. Chief Justice Robert French has written extensively on this. You can read a paper here.

Section 116 of the Constitution allows any individual who is subject to a law prohibiting the free exercise of their religion to challenge the validity of that law in the High Court. However, in previous cases the High Court has taken a very narrow view of this Section. As such, laws that may incidentally impose some restriction on religion, but were not made with the express purpose of prohibiting religion have been found to be valid.

The Constitution prevents any religion, including Islam, being expressly banned

In that case what does the Australian Liberty Alliance want?

Their 28 page manifesto mentions Islam 22 times. They state:

It is our core policy that all attempts to impose Islam's theocracy and Sharia law on our liberal society must be stopped by democratic means, before the demographic, economic and socio-political realities make a peaceful solution impossible.

Other relevant policies/stances include:

  • No reconciliation or Constitutional change
  • No dual citizenship
  • The revocation of Australia’s obligation to the UN charter on refugees

Why have they used the word Liberty in their name?

What do you think liberty means in Australian today? CEFA has dedicated many of its resources and articles to debates on rights and responsibilities of citizens versus freedom. Peace and harmony in our communities depends on all of us striving to achieve this balance in our everyday lives. Our commitment to the Rule of law is our safeguard to a peaceful nation.

Scott Ludlum had an issue with the use of the word liberty in the name of the party when interviewed on 7.30. In their manifesto, the Australian Liberty Alliance state:

Liberty is defined as absence of coercion and as such is an absolute, whereas democratically established laws can limit Freedom. Liberty is civilised Freedom.

Many would say that by establishing laws such as to prevent the “Islamisation of Australia”, or to stop dual citizenship and revoke Australia’s obligation to the UN charter on refugees, would restrict the liberties of some Australians.

The Oxford dictionary definition of liberty is:

The state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views

Does liberty in Australia mean that Muslims should be able to practice their religion without oppressive restrictions imposed by the State or other authorities? Yes of course.

Minorities is Australia

In his  Quarterly Essay last year, Noel Pearson describes the democratic problem for Aboriginal and Torres Strait Islander peoples in Australia who he describes as an extreme minority of 3% of the population. He states:

The numbers matter when they are this small, because it goes to whether the system of democracy enables an extreme minority to participate in a fair way…..because ultimately the core of our democratic system – elected representation in parliaments – depends on numbers.

Pearson acknowledges other ethnic minorities also face similar barriers (although no other minority has been dispossessed like indigenous Australians).

So if indigenous Australians are a 3% mouse in terms of size of population. What size is the Muslim minority?

An International Ipsos Mori poll recently found that while Australians think that Muslims make up 18% of the country’s population, the actual number is only 2%.

So we have these new political parties gaining traction to oppose a tiny minority.

Let’s dig a little deeper

Are Australians really worried about the so called “Islamisation” of Australia?

Or are we and the media (by giving them airtime) taking these anti-Islam groups out of proportion? Perhaps these anti-Islam groups are also a minority? But much more vocal.

A study out this week by the Scanlon Foundation on social cohesion shows that while Australians trust in Government has gone down, most people (86%) agree that multiculturalism has been good for Australia.

Commenting on the report David Marr writes:

Despite the fear campaigns of the last few years, Australians remain tolerant, proud, resilient and overwhelmingly optimistic.

Andrew Markus for the Scanlon Foundation stated:

What makes Australia unique, is its acceptance of immigration and cultural diversity. And it’s strengthening.

The study also found that a massive two thirds of respondents agreed that Australians should do more to learn about the customs and heritage of immigrants. A similar number believe that immigrants should also learn about Australian customs.

Most Australians believe that there should be a sharing of cultures between immigrants and those born here. And more than 75% of Australians do not think we should choose new migrants on the basis of race and religion! But perhaps we need to be reminded of our tolerance.

This week the Australian Government has announced a commitment of $130,000 to fund festivals and arts projects that celebrate diversity and unite communities. In introducing this investment the Assistant Minister for Multicultural Affairs, Senator Concetta Fierravanti-Wells stated:

We live in one of the most culturally diverse nations on Earth and these projects illustrate the innovative approaches community groups bring to our society to help people share their culture.

When discussing advertising and multi-culturalism in Australia on ABC TV’s Gruen on Wednesday night, Russell Howcroft said:

Interestingly I think there is a role for advertising….wind the clock back, if we go back to Fraser and multi-cultural Australia and then Hawke’s Government. What used to happen was they spent about $22 million on celebrating citizenship and celebrating multi-cultural Australia. You know the fact that we have all come in here and created this incredible minestrone, you know, potpourri of different cultures. It’s an absolute miracle…..So why not create advertising which just reminds us all of this incredible place that we live in, this incredible multi-cultural place that we live in. It’s gone off the agenda…..I do think there is a role to celebrate multi-cultural Australia….we’re all part of this family.

So what should we take out of this story?

The Constitution provides an implied freedom of political communication (maybe we’ll write about this another time), so political views like those of the Australian Liberty Alliance are valid. But we shouldn’t take these new anti-Islam parties out of context. Their supporters are a minority, perhaps even smaller than the Muslim minority in Australia (the Rise up Party gained 0.4% of primary votes in the House in 2013, while One Nation gained 0.2%).

The Constitution prevents the express banning of Islam or any other religion by the Federal Government. So let’s try and bring Australians together with facts & figures and not scare campaigns about the so-called “Islamisation” of Australia.

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