Max Wallace: Is Australia Secular?

In former prime minister Scott Morrison's first 14 Feb 2008 speech to parliament, he said:

"Australia is not a secular country – it is a free country. This is a nation where you have the freedom to follow any belief system you choose. Secularism is just one. It has no greater claim than any other on our society. As US Senator Joe Lieberman said, the Constitution guarantees freedom of religion, not freedom from religion. I believe the same is true in this country."

Similarly, John Dickson, who was the Guest Speaker of the 28th Australian National Prayer Breakfast in the Great Hall of the federal parliament on 16 October 2017, said in a recent ABC Religion and Ethics program that secularism is:

"… an ideology that seeks to keep religion out of important aspects of the life of our community."

The notion is that the phrase 'freedom from religion' infers hostility to religion. I disagree.

Article 18 of the 1966 Universal Declaration of Human Rights, to which Australia is a signatory, along with 194 other member states of the UN, establishes the right to freedom from religion as well as freedom of religion. Article 18 says:

"Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community of others and in public, or private, to manifest his religion or belief in worship, observance, practice and teaching."

The use of the term 'freedom from religion' thus does not necessarily entail hostility towards religion. It refers to a pluralism of differing views. The legal and Rawlsian reasoning on this point is described in Meg Wallace's Freedom From Religion: Rethinking Article 18, 2015, published from her PhD thesis.

Within this pluralism the principle of free speech gives citizens the right to criticise each other's point of view.

It is surely true to say that in a cultural sense, Australia is secular. The curriculum of our schools is overwhelmingly secular; all legislation in our parliaments is secular even though at times it is religiously motivated; legislation conservative churches oppose such as gay marriage, decriminalisation of abortion, voluntary assisted dying and so on have passed, albeit against prolonged religious opposition; the media, business, sport, and the arts are very secular. Our hedonistic, materialistic, secular culture is promoted non-stop by advertising and media publicity.

However, this omnipresent, overwhelming culture tends to mask Australia's entrenched soft, theocratic characteristics which fly under the radar of most political commentary. Professor Anne Twomey described what I say are the roots of this phenomenon very well when she wrote in The Queen and Her Governors, 2006:

"Like a chameleon, the Crown is a unique and unusual creature within Australia's constitutional law. It takes great care to protect itself by blending into the background so carefully that its presence is barely perceptible."

The argument below extends this description but the conclusion is all mine.

I suggest what many religious ignore is that 'secular' in its legal, technical sense refers to a government positioned along the continuum of nation states from atheist at one extreme to theocratic at the other; a secular government is one that favours neither religion nor atheism. In principle, it sits impartially in the middle. It is not an ideology as John Dickson and Scott Morrison would have it. It describes the basic structure of democratic government.

Obviously, Australia is in no way an atheist state. But it is an exaggeration, in my view, to characterise our constitutional monarchy as secular.

Australia has many legal, symbolic, and financial aspects that result in a serious entanglement with religion, discussed below, making Australia an 'in-between state', tending towards theocracy.

Examples of this entanglement go to the fundamental structures of our government:

• The current head of state, the Queen, is also the Supreme Governor of the Church of England, in England. Our head of state is undeniably religious.

• Politicians, when elected, must swear allegiance (or affirm) to the Monarch before the Governor-General:

  "I swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, Her heirs and successors according to law. SO HELP ME GOD!"

• In 2001 an Anglican Archbishop, Peter Hollingworth, became Governor-General.

• There are seven constitutions in Australia: six state and one federal. Only s.116 of the federal constitution refers to the relationship between government and religion. No clause in that section says there is a separation of government and religion, and no High Court decision has ever said, unequivocally, that there is. In the 1981 Defence of Government Schools case Justice Sir Ronald Wilson said:

  "The fact is that s.116 is a denial of legislative power to the Commonwealth and no more ... The provision therefore cannot answer the description of a law which guarantees within Australia the separation of church and state."

  Justice Sir Ninian Stephen said s.116:

  "...cannot readily be viewed as the repository of some broad statement of principle concerning the separation of church and state, from which may be distilled the detailed consequences of such separation."

• In 2012 I organised a petition to the House of Representatives requesting the parliament legislate for separation of church and state, signed by 370 citizens. It was entered into the Hansard on 12 December 2013. In 2014 I wrote to the Attorney-General, George Brandis, complaining that there was no effective separation of church and state in Australia. The office of the Hon George Brandis QC replied on 18 August 2014 that 'the Government has no plans to legislate for separation of church and state in Australia' which I suggest is a tacit confirmation of what their Honours found above, and what I am alleging about the theocratic characteristics of Australia.

• When the full bench of the High Court sits, the Court Crier declares 'God Save the Queen!' before the judges enter and sit. We questioned why the Court does this and the Court replied 16 February 2017 that the practice of the Court Crier 'is a long-established Court protocol'. So, reference to the Christian supernatural God is built into the very formalities of the Court.

• The absence of a section separating government and religion in the NSW constitution allowed the government to fund an estimated $100M towards the Catholic Church's World Youth Day in 2008 without any threat of a constitutional appeal.

• At the start of the Parliamentary Year, politicians, led by the prime minister and leader of the opposition, attend a church in Canberra for the Parliamentary Year to be blessed. On 21 February 2021 the Governor-General, General David Hurley, the prime minster, Scott Morrison, and the leader of the opposition, Anthony Albanese, read lessons from the pulpit. This service was live streamed by the Catholic Church.

• Similarly, at the start of the Legal Year, barristers and solicitors and others in the profession attend the 'Red Mass' at Catholic and Anglican Churches to have the Legal Year blessed.

• S.50 of the Senate's Standing Orders compels the President of the Senate to say a prayer and acknowledgment of country. It commences:

  The President, on taking the chair each day, shall read the following prayer: Almighty God, we humbly beseech Thee to vouchsafe Thy special blessing upon this Parliament, and that Thou wouldst be pleased to direct and prosper the work of Thy servants to the advancement of Thy glory, and to the true welfare of the people of Australia.

  The Humanist Society of Queensland sought a legal Opinion from barristers Gerald Ng and Bret Walker SC in 2017 as to whether this compulsory prayer was unconstitutional.

  They were advised HSQ could run the argument in the High Court but could very likely lose (after spending $300,000+). The reasonable inference from this Opinion is that the constitutionality of a Senate Standing Order that compels the President of the Senate to read a Protestant prayer effectively locks religion into the Senate until s.50 is repealed, and so far, in over a century, no political party has sought to do so.

  That sends non-religious citizens a message.

• It is well known that all state parliaments, and the Northern Territory, commence business with Christian prayers, as does the federal House of Representatives.

• The Australian flag includes the Union Jack with three crosses representing three Christian saints: St George, St Andrew, and St Patrick.

• The National Anthem is secular but on 1 December 1997 Senator Watson from Tasmania revealed that a Dr Robin Sharwood composed an alternative religious verse and contacted the Governor-General, then Sir William Deane, to obtain official status for it. Senator Watson read the text of the verse into Hansard. It started, 'O God, who made this ancient land'.

  We queried this. On 6 February 2014 the office of the Governor-General, Dame Quentin Bryce, replied that "The verses written by Dr Sharwood may be used in the context of a church service as a hymn but may not be used as an alternative to the National Anthem on those occasions when the National Anthem should be sung." We requested the correspondence between Dr Sharwood and the Governor-General under FOI to see what was said. Access was denied on 30 July 2014.

  A question that arises is why the Governor-General did not reply to Dr Sharwood that the National Anthem could not be altered, and why a special exemption was in effect made for church services and inter alia private, religious schools.

• There is a significant body of research, too expansive to detail here, that shows private religious schools, privileged to have their own version of the National Anthem should they so choose, are also recipients of significant funding largesse from the federal government while very many public schools are left to flounder.

• Coalition governments, in an openly theocratic decision, insisted on religious-only chaplains (not counsellors) in public schools. When Labor was previously elected, they changed the policy to religious or secular chaplains. When the Coalition later returned to government, they changed the policy back to religious-only. Both sides of politics miss the point that a person's religion is irrelevant to the role. From a secular perspective, a person's religion is irrelevant to what should be the role of a properly qualified counsellor.

• In the run up to the Religious Discrimination Bill, the parliamentary panel leading the inquiry into the Bill interviewed representatives of 41 religious organisations. When the president of the Rationalist Society of Australia, Dr Meredith Doig AO, sought an interview to present a secular point of view on the Bill, an interview was declined.

• In everyday life, citizens carry the image of the Supreme Governor of the Church of England in the loose change in their pockets, and every year, Australia Post faithfully produces Christian stamps.

• Underpinning this entanglement between government and religion are the gifts of land and tax exemptions that since colonial time have turned religious organisations into what the late, former editor of The Australian Financial Review, Paddy McGuiness, called a 'new breed of land developers.'

  On 11 March 1995 in the Sydney Morning Herald, he said:

  "The traditional revenues of the churches are no longer coming from the tithes or donations of the faithful, but more and more from property gifted [by colonial state governments] in the past, and they are maintained by the commercial disposal of assets which have never paid tax and even now do not attract tax when realised. That is, the traditional churches are largely living off the tax exemptions which were granted when they were important social institutions. They have become a new breed of land developers, selling off open space as well as buildings for commercial exploitation."

  McGuinness, I suggest, would have also agreed that the tax-exempt status of commercial businesses run by religious organisations which compete with secular businesses who do pay tax, should be abolished.

  A recent Canadian series of reports argued that taxpayers there subsidise religious activities by $3.2B annually. The Canadian Center for Inquiry argued 'this violates a [Canadian] Supreme court ruling that freedom of religion includes freedom from religion.' In 2012 Professor of Sociology at the University of Florida, Ryan Cragun, and his research assistants, calculated religion cost the US $71B per annum at that time.

  Similarly, the opportunity cost of the missing Australian revenue would be significant. With the serious current and future effects of climate change hanging over us, money is going to prayer-based organisations instead of science, not to mention health, education and so on.

  The usual response to this argument is that tax expenditures for religion that deplete the Commonwealth's revenue base, can be reconciled to the expenditures of charities run by the churches (cross-subsidy). That may be true to a point, but many churches engage in cosmetic charity work, and many do no charity work at all.

  In 29 June 2010 evidence given to a Senate inquiry by officers from The Treasury and the Australian Tax Office the officers admitted they did not know how many religious charities there were in Australia. They did not know because organisations can self-declare themselves as religious charities and self-assess whether they have to pay tax or not. That prompted Senator Cameron to ask:

  So, you could worship a fairy at the bottom of the garden … and say 'That's my religion. I want tax exemption because that's my religion'.

  An officer from the ATO said that if the fairy at the bottom of the garden religion did …

  … fit the guidance of the courts as to what a religion is, that would be acceptable.

  That 'guidance' is very simple: the High Court determined in 1983 in the Scientology case that the definition of religion was a supernatural belief and canons of conduct that give effect to that belief.

  In 2012 this free for all changed somewhat with the establishment of the Australian Charities and Not for Profit Commission (ACNC). They are now required to register with the ACNC to obtain tax exemption.

  However, a 'Basic Religious Charity' is exempt from reporting requirements and the ACNC is legally powerless to remove their charitable status even if they are found to be involved in criminal activity, for example, the sexual abuse of children or the covering up of such abuse.

In conclusion, I suggest with all this symbolic, legal, and financial underpinning for religion, Australian government (like many other Western governments) is in effect a soft theocracy. We are closer to the characteristics of theocracy and nowhere near an atheist state. Western governments are running what amounts to a protection racket for religion forever mindful of the thought that the votes of the religious could determine the outcome of a close election.

Sure, we are not a nation where clerics sit in the parliament and rule (although ministers of religion are occasionally elected to parliaments (e.g. Reverend Fred Nile in the NSW Parliament, and in the UK 26 Anglican Bishops are appointed to the House of Lords), but we are a nation of conservative politicians where dreadful discrimination against transgender school students was avoided, thanks to five parliamentarians crossing the floor against the Religious Discrimination Bill.

With the Census revealing Christian affiliation slipping to 44 per cent, continuing its ongoing historical decline, with those not affiliated to a religion continuing their historical ascent to 39 per cent, it is time there was a parliamentary inquiry into government entanglement with religion. I suspect individual members of various religions would support such an inquiry as some really do take the notion of fairness seriously.

I'm not holding my breath. This is a supposedly secular government that does not think twice about whether it is appropriate to start the Parliamentary Year with a service in a church with government leaders at a pulpit giving religious sermons from the Bible, or to use the parliament for an annual Prayer Breakfast as if it was a church.

A disinterested Australian Republican Movement has been silent about separation of government and religion in an Australian republic. Sometime in the future Australia may simply become a Christian republic instead of a Christian constitutional monarchy irrespective of whether Christianity declines further in the Census.

The religious who believe the entanglement of religion and government is proper, normal and beyond question would be shocked at such a parliamentary inquiry into these matters. In their view, it would be yet more evidence of secularists – wolves in sheep's clothing - seeking a so-called neutral stance between religion and atheism that had as its true aim, not reasonable overdue reforms to untangle the entanglement between government and religion, but the elimination of religion from secular government according to an atheist agenda. Either the distinction between secular and atheist escapes them or they are beyond thinking that there could be a distinction.

But the question is what comes first - secular government that favours neither religion nor atheism - or the continuation of our soft theocracy that continues to lock in religious privilege, legally, symbolically, and most of all, financially, for the faithful - unfairly?