2. Religion and the State – the Constitution, Roles and Responsibilities

Section 116 of the Commonwealth of Australian Constitution Act states 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.

The Constitution

2.1 Is this section of the Constitution an adequate protection of freedom of religion and belief?

1. The Australian Constitution has problems. Section 116 seems to be a perfunctory effort to stipulate that there should be a separation of church and state in Australia and that Australia should be a secular society. These are noble objectives, but the Constitution does not achieve them.

2. Section 116 is a denial of legislative power to the Commonwealth, but it does not ensure separation of church and state and does not offer any protection for those who do not believe in supernatural/imaginary gods. If religions are exempt under the Income Tax Act, then this legislation favours religions over other groups, including over those who do not have a religion. This undermines the perception of a separation of church and state. The separation of church and state must be enshrined in the Constitution if there is to be freedom of belief.

3. Section 116 does not prohibit religious schools that receive public funding from discriminating against well-qualified science teachers who have no religion. The Constitution does not, but must, protect individuals against discrimination by private organisations, including organised religion.

4. Aside from s.116, there are religious problems in the Constitution that must be addressed. When any one religion is favoured, the freedom of religion or belief is compromised.

5. The Constitution’s preamble requires a more secular approach because it effectively discriminates against non-Christians. Although the preamble has no legal force, it contains a reference to the Christian God. There is no perception that Australians will treat other belief systems and non-believers/atheists with the same rights as Christians, given that the Christian God has such prevalence in the Constitution, albeit in the preamble. It is subservient, irrelevant and demeaning that the preamble says we are humbly relying on the blessing of Almighty God. It is undignified to humbly rely on anything if, as a nation, we are to forge our own identity and determine our destiny with pride. The words ‘Almighty God’ may have some meaning for Christians and religious people, but it is gobbledegook to those who are not. Some may argue that the reference to God should reflect the historical nature of Australia’s early white Christian-based society, but this constitutes a denial of Aboriginal belief systems and of the multicultural and desirably secular nature of modern Australia. The Christian belief in God does not deserve a place in a legal, and political, document. While many people choose to follow the Christian religion, it is wrong and divisive to include such religious perspectives in a Constitution belonging to all Australians.

6. If Christians do not think that reference to Almighty God in the preamble is discriminatory, what would they think if a reference to Almighty Allah, Thor or Zeus were substituted, or even added to the preamble? Imagine the outcry. Their attitude would be that there should be freedom of religion, but only if it is Christianity. This attitude is unethical.

7. Simply stated, the Constitution is no more a place for a religious statement than the Bible is for noting our humble reliance on our Prime Minister. The Constitution should aim to be inclusive of all Australians, rather than divisive. A divisive Constitution undermines religious freedom.

2.2 How should the Australian Government protect freedom of religion and belief?

8. There are many options for the Australian Government.

• A stronger Constitution must allow freedom from religion or the right to not have religious beliefs.
• The right to not have religious beliefs needs to be reflected in all jurisdictional frameworks.
• There should be a full and complete separation of church and state in Australia.
• There should be no religious references in the Constitution, the Parliament, or material relating to any public institution.
• Australia should be a secular state, a non-divisive state, where no religions and no one religion is favoured.
• Religions should not be favoured any more than other organisations of people with similar interests.
• The non-charitable elements of religions must pay tax, and must be accountable in a democratic way, as, for example, companies are to their shareholders.
• Religions must be accountable for any government funding they receive.
• It is dangerous to vest power in religious leaders who are not elected and not accountable.
• It should be unacceptable for individuals and private and public organisations to discriminate and impose religious views on others.
• Religions should not be exempt from discrimination laws. Do Australians really believe that Christian politicians at Church can believe the terrible things written in the Bible about women, homosexuals, and non-Christians (including non-believers), and then treat others as equals and be tolerant of others the next day? Unless groups such as religious organisations are forbidden to discriminate, discrimination will flourish in society.
• Australia needs politicians with greater moral fortitude to stand up to organised religion.

2.3 When considering the separation of religion and state, are there any issues that presently concern you?

9. Religions are unfairly advantaged in Australian society. Why should people with like belief systems and interests have any more rights in government or public institutions than people who have the same sporting interests, such as members of a tennis club.

10. Australia’s Head of State is the Queen of Australia, Her Majesty Queen Elizabeth II. She is also Supreme Governor of the Church of England, a position that is very relevant to the church, although it is mostly symbolic. The problem that there is not a full separation of church and state begins here. Australia’s Head of State should have nothing to do with religion. The perception is all wrong. When Australia becomes a republic or before, there must also be a separation of church and state in Australia.

11. Section 116 of the Constitution does not require that there be a separation of church and state or that non-believers have the same rights as believers. This must be rectified. If it is not, religions will continue to be favoured, discrimination ensues, and Australians will suffer the consequences. A secular Australia means that there can be freedom of religion and belief because the government should never have authority over individual values. Liberty of individual conscience, the freedom of religion and belief, cannot occur if religions or any one religion is favoured by the state, as is the current situation in Australia.

12. The prayer at the beginning of each sitting day in Parliament is just as antiquated and discriminatory as the Constitutional preamble. Parliament is not a church, and should not be imposing religious values on parliamentarians. Australians would vehemently oppose the use of daily prayers in schools, universities and hospitals, yet there are daily prayers in Parliament.

13. The perception of a separation of church and state seems a spurious concept when daily prayers occur. It is unethical to impose Christian prayers on others when Christians would vehemently reject other religions’ prayers. Can people imagine the outcry from well-known Christian parliamentarians if a prayer to Allah was substituted for the Christian prayer, even if it occurred on a pro rata basis according to religious numbers? Christian leaders (in religion and politics) would not want to be hypocritically doing unto others what they would not permit others to do unto them.

14. The National Schools Chaplaincy Program is an attempt by the government to indoctrinate children in religion. Chaplains are expected to provide general religious and personal advice, comfort and support to all students and staff, regardless of their religious denomination, and irrespective of their religious beliefs. This is not compulsory, but the government is spending public funds to promote religion by stealth in the school system. This is unacceptable. Through denial of religious choice and the presence of mainly pro-Christian chaplains, the government hoped to promote Christianity in schools. It is unlikely that the government would have funded the chaplaincy program if the only chaplains available were non-Christian.

15. Australian religions are exempt from Income Tax, Capital Gains Tax and possibly other taxes. Religions can invest their money tax-free and cross-subsidise any of their ‘business’ activities. Colloquially, Australians would call this a lurk, and they do not come any bigger. If estimates that churches’ annual turnover of $20 billion per year are in the right ballpark, Australia could be forgoing well over a billion dollars per year in taxation revenue. Governments and politicians must question why religions are permitted to bank billions from their tax breaks; billions that governments could be using for the benefit of all Australians.

16. The Roman Catholic Church is the wealthiest non-profit organisation in Australia and one of its largest organisations, with approximately 180 000 employees. Yet it runs schools, hospitals, aged-care facilities, employment services and many other businesses without paying tax that other Australians would pay. Non-religious Australians find it difficult to establish schools, hospitals etc when their religious competitors do not pay tax. Religions are effectively cheating ordinary Australians. If some of that taxation revenue forgone were instead spent on Australia’s poor and needy, on education and health, on medical and scientific research, on energy efficiency, and on fire prevention, Australia would be much better for it.

17. Nobody really knows what religions do with their money (perhaps propping up the rich parent religions overseas), as they are not accountable. The tax-exempt situation for religions is clearly discriminatory and unacceptable. It is quite extraordinary that this religious discrimination has existed for so long. Religions must not be exempt from any taxation and they must be accountable. This is fundamental.

18. Both major parties support daily Christian prayers in Parliament. Religions are tax-exempt and lack transparency. This is religious discrimination at the highest level. There can never be freedom of religion or belief if the Constitution and daily prayers send a pro-Christian message and the taxation system has a religious bias.

2.4 Do religious or faith-based groups have undue influence over government and/or does the government have undue influence over religious or faith based groups?

19. Yes. Religious or faith-based groups have undue influence over government. Australian governments in all jurisdictions have been reticent to introduce social change. The rights of homosexuals to marry, the rights of terminally ill people who seek voluntary euthanasia, the rights of women seeking abortion, researchers wishing to use embryonic stem cells are some contemporary issues that have been opposed for religious reasons. Claims to the contrary are not credible, given the religious people who vote against these issues. These issues have majority support in the community and do not directly affect other people. However, the number of religious politicians seems disproportionate compared to numbers in the community.

20. The Australian Christian Lobby (ACL) states ‘that there are large numbers of Christian politicians at all levels of Government who value your prayers and support’. The ACL claims that it lobbies ‘to affect Christian principles in Government and legislation’. The ACL is at least honest in its unethical and brazen attempt to impose one religion on other people. Religious organisations, and groups such as the ACL, should be given no greater access to politicians than other lobby groups.

21. Politicians should forbid religions to discriminate against particular groups of people, including women. However, with few exceptions, politicians are reluctant or lack the moral fortitude to stand up to the organised religions.

22. Barack Obama, as a Senator, correctly recognised that governments must not legislate based on politicians’ religious beliefs. Governments require a universal principle, one amenable to reason, to legislate. He said ‘Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God’s will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.’[1]

23. With few exceptions, Australian politicians do not have the same ability to separate their religious beliefs from their political responsibilities. They need to understand that their religion is not amenable to reason, and must not be forced on others. Politicians need to ask religious leaders to justify why their religions should be tax-exempt (creating a burden for other taxpayers) or be heard on social issues, when religions deny scientific evidence, discriminate against others, have a history of violent conflict, and impose themselves on others, effectively denying other people freedom of choice in religion and belief.

24. Religions have opposed just about every law that would bring about a better human condition, whether it be equality for women, women’s suffrage, contraception, the use of condoms to prevent transmission of sexual diseases, the abolition of slavery, decriminalising homosexuality, abortion or voluntary euthanasia. Religions have retarded knowledge advancement by denouncing every scientific advance that conflicts with them. The Christian politicians may argue that they are not influenced by religion, but they fool nobody. Just about everyone who opposes abortion is religious. The correlation is very high.

25. This underlying rationale for the Euthanasia Laws Act—the religious opposition to voluntary euthanasia by certain politicians—has again come to the fore through the Commonwealth Parliament’s recently legislated ban on the electronic transmission of information about voluntary euthanasia, and the ban that has also been placed on the sale of The Peaceful Pill Handbook by Dr Philip Nitschke and Dr Fiona Stewart. Nonetheless, in the absence of supportive voluntary euthanasia legislation, Australians are downloading the information in this book, and attending meetings, to make informed end-of-life decisions.

26. Religions, via Christian politicians, have enacted legislation to ensure that people who believe that voluntary euthanasia is a viable option cannot have it, or even information about it. This is a gross imposition of conservative and Christian religious views on other Australians, and a reprehensible act. Good government policy should not be about banning information that predominately elderly Australians would use to make informed decisions about how they should live, and end, their own lives, because this forces other people’s religious values on them.

27. Another argument relates to s.116 of the Australian Constitution. Section 116 states that the Commonwealth shall not make laws ‘for prohibiting the free exercise of any religion’. The clergy and most other opponents of the Bill oppose euthanasia because of their reliance on Christian ethical values. Clearly, those who support euthanasia rely on different ethical values, such as might be compatible with a ‘religion’ based on the primacy of the quality of life, rather than, for example, a Christian ‘existence for its own sake’. If a religion were established that permits voluntary euthanasia, then it would seem to the layperson that the free practice of this religion, a religion concerned with individual liberty that does not directly affect others, would be prevented by a law that would be inconsistent with s.116.

28. Some world religions support voluntary euthanasia (so long as there are precautions to prevent abuse). Australian members of these religions are not permitted to practice their beliefs because of a Christian belief that all killing is wrong. Christians, who do not want voluntary euthanasia, might want to die with pain, suffering and indignity, but they should never be able to deny that choice for other Australians. That would be arrogant.

2.5 Would a legislated national Charter of Rights add to these freedoms of religion and belief?

29. If a Charter of Rights is developed, then the right to not believe must also be protected. There must be equivalence in rights between belief and non-belief, including in religion. The right for individuals, of sound mind and body, to determine and choose how they should live, and in cases of terminal illness, how and when they should die must be protected. Individual liberty must not be constrained. People must be permitted to have freedom of belief (that would include religion), but not if this is imposed on or discriminates against other people. There must also be complete freedom to debate religion and all other issues.

Roles and responsibilities

2.6 a) What are the roles, rights and responsibilities of religious, spiritual and civil society (including secular) organisations in implementing the commitment to freedom of religion and belief?

30. Religions must not be imposed on others by physical, emotional or legislative means. This means, for example, at schools that receive public funding, no religions and no one religion should be foisted on students. Students should preferably be taught philosophy (and science), or at least be given the option of studying and comparing religions. Teachers should be employed without regard to their religious values or beliefs.

31. Religious leaders should be able to freely debate issues. Their argument that ‘my ethical views are right because it is my God’s fiat’ is neither objective nor compelling to people not of their religion. An objective observer would conclude that their values are those of people who wrote an ancient and primitive religious text, not representative of their church membership, and are discriminatory.

32. It seems that perhaps about 8% of Australians regularly attend church on any given weekend; many others might call themselves religious but might do so for cultural or family reasons. Many religious leaders’ views on issues like abortion, voluntary euthanasia and sex before marriage are at odds with what the majority of religious people believe. Do the majority of teenagers from religious schools really decide to wait for marriage before their first sexual experience, and forgo all contraception when they do have sex? Young people seem to give their religion short shrift on matters of sex, contraception, euthanasia, and the rights of women, amongst other issues. Religions should not make people feel guilty or punish them for thinking and acting for themselves.

b) How should this be managed?

33. The indoctrination of children should not be permitted in schools or education systems. Females in particular should not be permitted to be indoctrinated in Christianity or Islam, as they continue to be subjugated by these religions. Politicians must protect Australian females. Schools that teach that one religion is best, when clearly this is a matter of personal opinion, are creating a divisive society, and this should not be permitted.

34. Some people see children as only an extension of their parents, and justify childhood religious indoctrination as ‘right’ if that is what the child’s parents want. If Australians instead viewed children as also prospective independent, free-thinking adults, then denying religious choice to people in their younger formative years is disgraceful.

35. Surely, if religions were so confident in their own merits, there should be no need to indoctrinate children, as adults from near and far should flock to them to ‘see the light’. Religions and parents cannot justify denying children freedom of choice in religion and belief. Governments must act to ensure there is freedom of choice in religion and belief in all schools.

36. Philosophy would be useful in this regard, as would studies of comparative religion. What happens at a home is up to parents. Perhaps, if parents have the capacity to appreciate that freedom of choice in religion and belief is a positive in the development of their children, childhood indoctrination of false and biased stories in the home will disappear.

2.7 How can these organisations model a cooperative approach in responding to issues of freedom of religion and belief?

37. Religious leaders and people need to be educated to learn about religious freedom and the ethical merit of freedom of choice in developing belief systems. However, if education teaches that women are the equal of men and consequently should be able to hold leadership positions in their church, this is contrary to religious leaders’ firmly entrenched belief systems, so it is unlikely that they will not accept it. As the Australian Human Rights Commission has established this Inquiry, it could perhaps take a lead in making people more aware of views that, for example, have been propounded in this submission.

2.8 How well established and comprehensive is the commitment to interfaith understanding and inclusion in Australia at present and where should it go from here?

38. The Qur’an teaches that members of other religions should be fought ‘until there is no more tumult or oppression, and there prevail justice and faith in Allah altogether and everywhere’. The Bible similarly teaches that those not of the Christian religion should be put to death, or at least destroyed. Most churches preach to their members that people not of their religion are sinners, who will have everlasting punishment in hell—not really a basis on which churches can have sensible interfaith dialogue. Many religious people deny the literal interpretations of their religious texts, but fundamentalists do not. Perplexingly, it seems impossible to obtain perfectly clear interpretations of the alleged perfect religious texts.

39. It would seem that Christians and Muslims, but also Jews, have the same level of respect and interfaith understanding for each other that they have had throughout history. While the religions are ostensibly making efforts to be conciliatory, it is probable that under the surface, their antagonism towards one another continues. It is to be hoped that the religions can work cooperatively with each other to make the world a better place.

40. It would be wonderfully uplifting if the leaders of the different major religions could join hand in hand and call for a better world. They could announce the cessation of all discrimination and religious hostilities, freedom and equal rights for all, that religions would now pay tax like other organisations, that divisive religious practices would be eliminated, that no religion’s gods or beliefs are better than any other gods or beliefs, and renouncing all references in their religious texts that undermine equality and advocate punishment for people who are not of their religions. That would be a start. Otherwise, religions indulge in a childish, fruitless and divisive game of ‘join up, our religion is better than your religion’. Australian politicians can unite on certain issues, and a proclamation to this effect by religious leaders would surely be beneficial.

2.9 How should we understand the changing role and face of religion, nationally and internationally?

41. Religion is but one facet of society. The world is facing many pressing issues, relating to climate change, environmental protection, education, poverty and disease (especially in the third world), the nature of technological change, as well as financial, economic, population and political pressures. A lack of certainty and the rapidity of social change may drive people away from or to religion; the latter is a concern when religious terrorism is a major concern for many countries. Census data would suggest that religious numbers are decreasing as a proportion of the population. As we understand our world more, and the injustice in it, people realise that there are no imaginary gods and no miracle solutions. People must work together to solve the world’s problems, but intolerance and discrimination, arising from a denial of individual rights, all but undermine the final outcome.