Universal Secularism and Religious Particulars in Australia: An Irresolvable Problem?

From the proceedings of to the 4D Conference, University of Western Sydney, July 2013


Multiculturalism, defined as the presence of people of a variety cultural backgrounds in a single community, is almost irreversible reality. The combination of large-scale migrations, improvements in transport and communications technology, and an increasing dominant political and economic ideology of globalisation, brings into question the long-term future viability of the modernist nation-state, with moves towards multinational and international governance. Under these circumstances, cultural integration - and assimilation - has become a major issue for many governments, as they attempt to combine the twin orientations of integrative unity and adaptable diversity.

Historically variations in religious belief have also been associated with cultural and geographical regions. However, as the traditional imperial state or principality was dominated by religiosity, the modern state has increasingly developed with a separation between private religion and secular public. Nationalism and secularism were thus a combined modern alternatives, and just as the former could be taken to a racist extreme, so too the latter could be expressed in an authoritarian hue, especially with the examples of State-sponsored atheism, which extends even (and often especially) to symbolic representations, often combined with dominant ethnic prejudices.

From a contemporary liberal perspective, existing trajectories towards multiculturalism and non-discriminatory clarity between individual religiosity and governmental agnosticism is welcome and encouraged. Whilst this hopeful and somewhat simple perspective is encouraged it can and does face the difficulties of context and the possibility of irresolvable issues. It is these possibilities that are explored looking particularly at Australian legislative and institutional examples, looking specifically at the implementation of laws where supposedly universal secular principles conflict with religious particulars, the content and implementation of various state-based religious vilification legislation, and the practise of police and emergency service operations.

Multiculturalism : A Historical Perspective

As should be fairly evident multiculturalism is a term that represents a social experience of a continuum, an experience which has been present since the beginning of the species, and an experience which is increasingly likely. A tentative definition of multiculturalism is the presence of people of a variety of cultural backgrounds in a single community. A culture (from cultura, a cultivating) referring to a population with mutually understood shared symbolic values (of which primary language can be a useful quality), and a community (from communis) referring to a place where that population is present. Historically we have understood communities to be defined within a specific geographical region, a concept which is remains evident in the European term for local governance, the commune. Of course, this is no longer the case, especially with the mass adoption of the world-wide communications framework known as the Internet, although precursors obviously existed beforehand. One can reasonably speak, for example, of communities of premodern scholars and merchants which transcended geographical boundaries and indeed created a culture in their own right which, as a matter of practicality, valued multilingual knowledge.

In addition differentiation should also be made between culture, counter-culture, and subculture, the latter representing a stylistic and value variance from the dependent culture which remains immersed within that culture (unlike the counter-culture, which separates itself from it). Further to this diversity of cultural definitions, an additional concern is the trajectories arising from presence of many cultures, subcultures, and counter cultures, for example an admixture of languages that lead to creoles or the adoption of loanwords. Finally, a distinction also should be made between the facticity of multiculturalism, where the existence of a diversity of cultures is a matter of accounting and statistical analysis, and a policy orientation towards cultural diversity, whether it is to be encourages (like biodiversity), or whether there should be restrictions (as with racist policies), or whether there should be functional-assimilationist policies (e.g., an official language) or functional-adaptable (e.g., teaching of multiple languages in the education system).

It is difficult to find evidence of historical monocultures except in the sense of the most isolated and exclusive communities. There are significant communities that represent a high level of monoculturalism, of which Japan and the Koreas is an oft-cited contemporary examples with 98.5% of the population identified as Japanese in the former case, and 99% as Koreans in the latter. At the other end of the scale there are countries like the Democratic Republic of the Congo and India, both of which have an enormous variety of different cultural groups and where no single group even represents a majority of the population. In the Congo, some 250 ethnic groups have been identified along with several hundred languages; in India there are is a similar number of languages and even well-known common languages such as Hindi and Bengali make up less than 33% and 20% respectively of the population.

From these extreme examples some observations can made: Firstly, there is a anthropological tendency in human societies to tend towards cultural divergence which are relatively small in comparison to modern examples. Thus relatively underdeveloped countries such as the D.R. Congo have a relatively high number of indigenous ethnic and linguistic groups. This is one of the sources of ongoing conflict in that country is a lack of regional political autonomy despite a 2006 constitutional agreement for provincial decentralisation. Secondly, the establishment of an independent state with a high proportion of indigenous people is best achieved through federalism, such as in India with its federation of states and union territories, although the 1947 partition from Pakistan and the 1971 Bangladeshi independence (and resulting Indo-Bangladesh enclaves) to indicate that this is far from perfect. Thirdly, the countries of Japan and Korea have longstanding governmental policies of ethnic and racial homogeneity in addition to the geographical isolation and suppression of alternative indigenous claims (e.g., the Ainu in Japan). With their relatively high levels of technological development and international integration, they will experience long-term challenges to this policy through these sources which provide telic opportunities for human international movement and political demands for universal rights.

Divergence in the approaches towards multiculturalism can be considered, with a long-run and historical social theoretical approach, as a result of changes in the mode of consciousness and political institutions which correlated with the transformation from traditional to modern society. This transformation includes qualitative changes in the means of production, the means of communication, the aforementioned mode of consciousness and institutional system (including the relations of production). Expressed broadly, traditional society was manorial and imperial in terms of its political institutions and metaphysical-religious in terms of its mode of consciousness, whereas modern society has tended towards a differentiation between democratic polity and capitalist economics with national and secular modes of consciousness.

For its time it certainly arguably that the rise of the nation-state provided many progressive elements, such as local political independence and cultural identity, whilst at the same time correlating with secular political orientations which were partially inspired by the break-up of religious dominant imperial claims and partially due scientific and technological changes did not require metaphysical moral justifications. Yet it was these very same forces that also generated pseudoscientific racial theories of difference and superiority, and a political economy of global imperialism and colonialism. Contemporary attempts to shore up the culturally exclusive nation-state as an ideal however run into the issue that they are increasingly contrary to technological possibilities, the economics of globalisation, and the politics of multilateral and international governance based on universal norms, of which the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women and institutions such as the International Criminal Court serve as examples.

From Religious to Secular Law

A significant challenge to political rules in the rise of modernity was to elaborate a moral code for governance. In traditional societies religion was the foundation for the legal code, just as culture was the foundation of the symbolic code. Unsurprisingly in the early modern states just as the localisation of political independence lead to a degree of cultural autonomy in the form of nationality, so too did religious and legal expressions. Rather than a secularisation one witnesses the establishment of national churches in the European Protestant context (e.g., the State churches of Norway, Denmark, Sweden, England, Finland, & etc) in the first instance removing the authority of a transnational canon law, the acceptance of minority denominations within the same religion, followed by a gradual disestablishment of the church powers over the state, and finally the adoption of a secular reasoning in legal norms. This of course only represents the broad sweep of history and it is also mostly particular for advanced economies as well, in both the European and
Far Eastern perspective.

These political actions are considered to be correlated with a widespread disenchantment of the world as rationalised explanations of events gain greater credibility through proximal verification and falsification rather than appeals to ultimate concerns. Indeed the theological perspectives from such countries high levels of technological and institutional complexity became increasingly abstract in terms of world-explanations, whilst retaining adherence with traditional moral norms, albeit reconstituted in terms of latent social structures (e.g., maintenance of family, sanctity of life, etc) as a primary public orientation with religious convictions that support the same expressed primarily among denominational supporters. It is interesting to note that if the discipline of social theory had any particular predictive capacity in its early years it was the notion of increased rationalisation, scientisation, and a resultant "disenchantment of the world" that would lead to a change in modern religiosity

The development of multiculturalism has an interesting correlation with religious pluralism and for very similar reasons. There is the technological opportunity in transportation which allows for widespread migration between geographical regions. In communications technology, the admixture through the encounters of different religions has led to a greater requirement for, and acceptance of, religious diversity. From this religious diversity within communities one also witnesses the rise of interfaith dialogue and syncretic approaches (which is not unlike the development of multilingual, multicultural societies), which leads to a societal religious pluralism, the explicit engagement of different faith traditions with humanistic and secular prescriptions, which can end up with universal principles that transcend the starting contexts, or can establish points of demarcated difference with truncates the possibility of pluralism in particular areas of life. Examples of the latter can be found in the management of family law issues in multi-religious countries such as Lebanon and Israel; Lebanon has seventeen different official state religions each with its own family law code and religious courts.

Of course this is not the only eventuality, and indeed is quite possibly a minority case. Historical experience provides many examples of how there has been an imbalance between technological development and moral reasoning to the point where entire societies have made use of technologically advanced weaponry available in order to enforce premodern societal values, from an alarming range of religious perspectives up to and including those ideologies which professed no religion at all. Whilst this obviously includes the great totalitarian ideologies of the twentieth century embodied in the Christian and pagan ideologies in Nazi Germany and the atheist communism of Stalin's Soviet Union, the authoritarianism of many contemporary Islamic states are also mentioned with recognition that they are also a result of anti-imperialist and nationalistic claims in their own right.

Indeed, if one recalls the history of the modern age, one cannot help but be struck by the atrocity exhibition that follows. The French Wars of Religion between the Catholics and Protestants from between 1562 and April 1598 left between two and four million dead. The German Thirty Years War of 1618 to 1648 between the same denominational difference saw between three million and eleven and half million dead, the latter figure representing over two percent of the entire world's population at the time. In comparison the Nigerian Civil War of 1967 to 1970 between Muslims and Christians seems positively tame, a mere one to three million deaths, and the Second Sudanese Civil War between the same from 1983 to 2005 bringing one to two million to their creator. This is, of course, in addition to the destruction of property, the mass dislocation, the rape and torture, and all the other experiences that leave the mind and body damaged.

In comparison to these experiences the modern, liberal and democratic secular perspective must seem positively enlightened, and indeed in most cases it is. However in some areas of life it remains strangely inconsistent, almost bizarrely concerned about symbolic rather than moral issues with a hefty dose of ethnic prejudice. The example of the French law on on secularity and conspicuous religious symbols in schools. This ban, whilst not mentioning any particular religious symbol, was wide enough in scope to cover Christian crucifixes, Sikh turbans, and Muslim head scarves worn by students. Expressed as an apparent enforcement of the separation of church and state the prohibition was specified on the display of religious affiliation in publicly funded schools. It should be noted that technically that if one wears the symbolically not a form of religious identification, then the law would not apply - such as Muslims wearing crucifixes, Christians wearing the kippah, and atheists wearing turbans.

Such behaviours actually undermine secularism which, interpreted strictly in terms of public policy, proposes a legal system which is strictly agnostic. This particular interpretation of universal secularism has several advantages to both the increasingly unsustainable use of religious laws in geographical regions, the truncated application in religiously diverse societies, or the dogmatic application of an atheistic orientation, insofar that it will be more adaptable to an increasingly religiously pluralistic society, including those who profess none at all. Further it establishes the interfaith orientation, which emphasises the existential unity between people. Finally it allows for a sufficient flexibility of choice in the expression of religious or non-religious beliefs that ensure that such convictions are freely chosen. The latter is important in the context of the Arab spring which in some cases the frustrating choices sometimes seems to be either a secular dictatorship or a religious democracy (rather than a secular democracy). This is the latest example of the long-standing concern of the possibility of a "tyranny of the majority" over minority and individual rights and a re-emphasis that democracy must be founded on equal individual rights, an isocratic democracy, rather than an oppressive mob rule of the majoritarian approach.

Some Australian Experiences

The question is raised on whether Australia fits this model of a secular, isocratic, democracy where there is level of governmental agnosticism in policy along with religious pluralism. In making this initial attempt of review - and it certainly must be expanded beyond these examples - the Weapons Amendments Act of various states governments which allows Sikhs to lawfully wear a Kirpan, the publication "A Practical Reference to Religious Diversity for Operational Police" ("A Practical Reference"), and the Racial and Religious Tolerance Act of 2001 ("the Tolerance Act") in Victoria. Before engaging in reviews of these examples however a factual overview of religiosity in Australia as defined in the Australian constitution and with identification from the Australian Bureau of Statistics (with the caveat that that identity does not mean engagement). Whilst the Australian Constitution does not have a Bill of Rights which explicitly protects freedom of religion (and indeed, a referendum in 1988 rejected such a protection by an overwhelming majority), and does include a clause (Section 116) of the Constitution prohibiting the Commonwealth (and only the Commonwealth) from making any law establishing a religion, for imposing any religious observance, prohibiting the free exercise of religion, or imposing religious tests. In terms of identity, Australia is overwhelmingly at least nominally Christian with 61.1% adherence (Protestant 33.2%, Catholic 25.3%, Orthodox 2.6%), with a large section expressly stating no religion (22.5%) or no answer (9.4%). Expressly identified adherents of non-Christian religions are a fairly modest percentage - 7.2% - of the overall population (Buddhism 2.5%, Islam 2.2%, Hinduism 1.3%, Other 1.2%).

Like many Australian states, the public carrying of potential weapons offensively without reasonable excuse is generally prohibited. This has raised a particular issue for Australia's Sikh community where the wearing of the Kirpan, a curved (and typically blunted and often concealed) dagger secured in a cloth sash, is considered to be one of the five articles of the Sikh faith and is never meant to be worn as an aggressive representation. As a result, the Queensland government in 2011 made an exemption that explicitly stated that a member of a religion may physically possess a knife for genuinely religious purposes. A similar sort of exemption applies to the Victorian Control of Weapons Act 1990 and the South Australian Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000. Note that these modifications are particular to the ceremonial expression. In all cases, aggressive threats made with such a weapon would not constitute protection. What is in fact being done with such amendments is the specifying of a "reasonable excuse" which has hitherto covered other activities, such as the use of such potential weapons in employment (a butcher's cleaver), recreation (a fishing knife), entertainment (a theatrical performance), a sport (a fencing club), an association (a historical knife-collectors club), museums or personal heirlooms. Thus the modification of the law, which was of course very important for Sikhs, has been conducted in a manner that is consistent with the non-religious exemptions.

The second example is the Victorian government's Racial and Religious Tolerance Act of 2001. The Tolerance Act, like other similar legislation, sought to promote racial and religious tolerance in a multicultural democracy by prohibiting the vilification of persons on the basis of their race (broadly defined to include genetic cline, nationality, or ethnicity), or their religious belief and activity. There have been two major cases relating to the Act, the first ruling concerning an action by the Islamic Council of Victoria against Catch the Fire Ministries, and the second by a Wiccan prisoner against the Salvation Army who, the plaintiff claimed, "posed a danger to his safety" and whose "Alpha Christianity" course was discriminatory. The second case was quickly rejected and likewise it will be done so here. In the first example, an initial ruling at VCAT found that the Act had been breached. Attracting international coverage and a campaign and funding from the interfaith Becket Fund for Religious Liberty in the U.S. and appeal to the Supreme Court put aside the original ruling.

The core problem with the Act is the intentions do not match the content. Racial and religious vilification are right condemned by people of moral integrity. But the Act does not prevent this. To clarify, to vilify is to defame or slander and it is a great weakness of the many laws relating to defamation and slander that whilst individuals and legal persons (such as associations, corporations) may seek redress for damages sustained by such speech or writings, individuals defamed or slandered on the basis of their membership to a social group (e.g., be it a nationality or religion) could not. Rather the legislation prohibits "conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons", regardless of their veracity. That ridiculing fundamentalist sects who claim that those who work on the Sabbath should be put to death, or that homosexuality is an abomination equal to eating prawns, or that the Earth is actually flat, or the universe was created in October 4004 BC, and God's language is King James English is outlawed. Such claims may offend some people; but in reality it is only offensive speech that will ever need defending for inoffensive speeches are never condemned. What is important is which truthful offensive speeches is defended, even by those with poor motives. For it is only be grappling with the truth can their partiality and context be admitted and the sum of human knowledge be improved. In this particular example universal secularism has been trumped by the sensitivities of religious particularism and as a result of the first case, the Victorian HREOC (which bring cases to VCAT) has not initiated any further legal action under the Act.

Although having a relatively small percentage of the population expressing a non-Christian religious identity, and an somewhat larger number representing a non-Anglophone first language cultural background (around 25%), the Australian government established an Australasian Police Multicultural Advisory Bureau (originally called the National Police Ethnic Advisory Bureau) in 1990. Express concerns at the time emphasised the need for professionalism, community partnership, and a focus on newly settled and emerging communities for preventative action. The Bureau has issued both awards for contributions in these fields, along with issuing several publications of which "A Practical Reference" is one; others include "Recruitment from Ethnic Communities", "Guidelines for Organisers of Cultural Events", and "Policing in a Culturally Diverse Australia". This guide covers both cultural and religious differences concerning oaths, gender roles, physical contact, behaviour at places of worship, and symbolic expressions. Following a nationwide survey in 1999, operational issues in relating to religious behaviours were identified with the publication of the first edition of the Practical Reference, with sponsorship from a variety of multicultural organisations. Subsequent editions have been published, expanding the religious scope, and a version has also been published in New Zealand.

Much of the content of the the Reference provides an historical and theological overview of the different faith traditions in order to provide a least a basic awareness for operational staff. The Reference does identify where religious tradition conflicts with secular legal norms, and notes for operational staff that the latter must have priority. For example for indigenous Australians autopsies are usually not permitted, however for some states and territories they are mandatory. However, the protocols do recommend minimising these conflicting operations to the extent required by law and below what typical practises may indicate. To continue with the same religious example, the Reference notes that the taking of photographs may be perceived in some traditions as an ingredient for sorcery and thus should be avoided. This operational principle continues throughout the guide; particular religious days and ceremonies are noted as being perhaps not the best to demand interviews, hats should be removed when entering most Christian Churches, footwear is not worn in Hindu prayer rooms, a male officer should generally avoid speaking to an Islamic woman without a male relative present, and so forth. In each of these cases the protocols of activity are respectful of religious traditions in a manner that does not conflict with secular law. Thus a situation is promoted that, when applied, which genuinely indicates religious pluralism as the operational activity is explicitly engaging with the religious community, but also which recognising that the legal outcome must be based on a legal framework common to all faiths.


There is a historical tendency towards multiculturalism for technological and economic reasons which is unlikely to be prevented in the longer term. As different cultures are also associated with different religious traditions, increasingly societies will become culturally and religiously diverse. The encounter of different religious traditions in a legal sense is of a greater challenge than that of different cultures. Cultural difference, diversity, and divergence can be primarily interpreted as aesthetic differences, however with religious differences these become questions of legal norms. The increasingly reality of religious diversity thus requires the development of an interfaith and inclusive religious pluralism, which includes atheistic voices, to develop a secular legal code which provides both freedoms for religious choices and commonality for all members of society. This ideal however will encounter practical but resolvable difficulties along the way as long as the core intention of commonality is found. Again it is emphasised - there is no turning back from a culturally and religiously diverse society, isolationism is simply not a viable option. As a result, members of different faith-based communities and those with none at all will have to come to a understanding, acceptance, and compromise - even if they are not particularly inclined to do so - from their own positions towards that of commonality simply because of this increasing diversity.