Reinforcing religious inequality: The AHRC Inquiry into religious freedom and Australia's vexed religious landscape

From mid-2008 to mid-2009, the Australian Human Rights Commission (AHRC) sought to gather views from faith, interfaith and civil society groups on Freedom of Religion and Belief in the Twenty-First Century. The inquiry set out to examine freedom of religion and human rights in the face of increased religious diversity, but also to examine the role of religion in the public sphere. It engaged with issues that related to 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 this growing diversity on the relations between religion and the state.

A central component of the consultation process involved seeking public submissions, of which 2033 were received. Our focus here is different from that Inquiry Report, as our primary interest is critically to analyse the "religious voice" in the public submissions and the impact of the public submission process on social policy. We want primarily to address two related research questions:

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?

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, the development of anti-religious-vilification legislation, and the commentaries on these matters have been the case studies for our analysis.

Religion and public life

Many democratic states subscribe to the idea of state neutrality, or the separation of church and state. Farida Fozdar 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 secularization 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. One of the most pressing challenges facing contemporary societies is how to handle the management of moral and religious diversity - the basis of the AHRC's Inquiry. 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 instance, the Parliamentary Prayer, the appearance of "God" in the Preamble to the Commonwealth of Australia Constitution Act, and so on). Those who see Australia as a secular country can point to the section 116 of the Commonwealth of Australia Constitution, which proscribes establishmentarianism. Then 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.

The Inquiry's analysis revealed that as plurality and presence of religion within the public sphere increases, the scope of shared values contracts and the possibilities for public disputes over basic institutions increases. It could be argued that Australia is entering into a post-secular period in which the management of religion becomes more necessary. The picture that emerged was not just complicated - it revealed the contested nature of these visions.


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 ACT and Victoria. In the absence of national protections, religious and belief organizations - 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 Inquiry's overall mission. The Australian public was asked to evaluate freedom of religion, as well as 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).

Tom Calma, the then Race Discrimination Commissioner and Aboriginal and Torres 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 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 operate through dualisms of "creationism versus evolutionism," "cults and cult survivors" and the perceived schism between religion and science research.

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.

Background to the data

As we've already stated, in 2009 the AHRC received 2033 submissions to the Freedom of Religion and Belief in the Twenty-first 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.

A coding framework was developed by a project team - staff from the AHRC and two of the authors of this article (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%). Other contributions came from organisations - most commonly these were representative religious organisations or local religious organisations (6.1%). 14% of submissions used the online questionnaire template provided as part of the Inquiry call for public comment. Submissions were relatively evenly split between those that dealt with a single issue only (47.2%) and those that addressed multiple issues (52.8%). Christian groups made up 61% of all organisation submissions and just over 84% 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 the faith and associated community leaders consulted represented 98% of the Australian population with a religious affiliation (24 consultations with 274 participants). However, organisations with less than 10,000 followers within Australia were not included within that part of the consultation process.

Although the Inquiry Report can claim to be representative, there were no open public fora 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.

Religion and the state in Australia

About one quarter of the submissions made a comment on religion's relation with the state, and the rest made no comment on this topic. 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). About 6% of the submissions to the Inquiry 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. Conversely, many more submissions were concerned that secularism presented a problem to religious belief and freedom in Australia. About 14% of submissions expressed the view that religion in Australia was currently being threatened by secularism.

An analysis of submissions found that almost 40% of submissions asserted the idea that Australia should see itself as a (Judeo-)Christian country. In the face of an increasingly multicultural and multireligious landscape, many Christian religious 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, apart from a small minority (6%) who asserted that Australia should see itself as a secular country.

Comments on religious exemptions, protections and vilification legislation

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 1029 submissions that mentioned exemptions, 92% 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. The large volume of expressed opinion 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.

A number of submissions documented incidences of religious discrimination and religious harassment, including the Christian majority. Well over a decade ago the Human Rights and Equal Opportunity Commission reported that 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 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. Previous empirical research has also affirmed that non-Christians endure higher rates of racism, and experience substantive inequality in terms of life chances and their ability to construct places of workshop and private schools.

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 Victorian Racial and Religious Tolerance Act (2001), the Abortion Reform Act (Victoria) and the Victorian Charter of Human Rights. 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 Inc v Islamic Council of Victoria Inc. (2006) case 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." This legislation was argued to have "imposed profound restrictions on religious freedom (and freedom of speech)" and to "promote more conflict than now exists." 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.

Although the percentage is low (only 3.6% of submissions), there was a call for further protection through legislation. Each submission from an Islamic, Jewish, Pagan or New Religious Movement (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."


Increasing religious diversity is forcing a reconsideration of some assumptions about Australian identity and character. In the face of a multicultural and multireligious landscape, the conservative Christian religious submissions represent themselves as the "core" culture - one that existed in Australia prior to the immigration waves that in turn created the pluralistic religious landscape.

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. Although the final report was clearly defined as a report to the AHRC rather than a report by the Commission, 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. Policy making in religiously sensitive areas should be responsive to the attitudes of all Australians.

One response in 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 as democratic as possible, yet as argued earlier, the Christian-only focus group, the lack of public fora, the weight given to the Christian "majority" and the reticence to suggest mechanisms to confront religious inequality, all serve to counter the claim for substantive equality across all groups.

Nevertheless, the public submissions 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. Christian groups had the benefits of effective establishmentarianism and were able to flood the submission process with their vested cases for religious privilege such that the status quo on religious entitlement prevailed.

Jacqueline Nelson is Senior Research Officer in the Dean's Unit School of Social Sciences and Psychology at the University of Western Sydney. Alphia Possamai-Inesedy is Lecturer in Sociology in the School of Social Sciences and Psychology at the University of Western Sydney. Kevin Dunn is Professor of Geography and Urban Studies in the School of Social Sciences and Psychology at the University of Western Sydney. You can read their full analysis of the Australian Human Rights Commission Report into Freedom of Religion and Belief in Twenty-first Century, "Reinforcing substantive religious inequality: A critical analysis of submissions to the Review of Freedom of Religion and Belief in Australia Inquiry," here.