Freedom of religion in Australia - a historical note

This stained glass window commemorates the death by burning of the Anglican martyrs Hugh Latimer, Nicholas Ridley (1555), and Thomas Cranmer (1556). The last person burnt at the stake in England for religious reasons was the Baptist Edward Wightson in 1612.

It appears that the last person executed by burning in England was the counterfeiter Phoebe Harris who was burned to death at Newgate in 1786. This form of execution was removed from the statute books in 1790.

I was in the process of responding to comments on my post In defence of the Lord's Prayer in the Australian Parliament with some historical material when I thought that the material might be of broader interest.

Freedom of religion is one of the few freedoms explicitly recognised in the Australian constitution. The constitution reads:

116. 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 convict ships that sailed for what would become Australia came from Islands marked by deep religious and political divides dating back to the Reformation, the period when the previously dominant Roman Catholic Church's claim to universal spiritual (and indeed temporal) authority was challenged by new Christian movements. These growing religious divisions interacted with the politics of the period, including the early stages of the creation of nation states.

In England under Henry VIII the authority of the crown was asserted over the Roman Catholic Church in England creating what was in effect a State church, the Church of England, headed by the crown.

Faced with constant threats to her power and indeed England's survival as an independent nation, Elizabeth I consolidated state power. The legends from this period - the Elizbethan age - became powerful English symbols. This was the start of the rise of Empire.

The history in Scotland and Ireland were different.

In Scotland, too, there were often religious divisions. However, history there meant that the divides played out more between Protestant and Roman Catholic. In Ireland, the Catholic Church remained dominant.

In the period following Elizabeth, religion continued to mix with politics. The English Civil Wars that established the dominance of Parliament were very much religious wars. Cromwell drew his support heavily from the continuing dissenting voices to both the Anglican and Roman Catholic churches. The Protestant settlements in Ireland - the start of the Ulstermen - were deliberately established for political reasons, to protect the English position.

The convict ships that arrived in Botany Bay carried people from all parts of the Isles. The paramount need to maintain order in a convict colony, the presence of multiple faiths including especially the powerful Scots Presbyterians, all dictated a different approach to that holding in England. No matter how some Anglicans might have desired it, there was never going to be an established state church in NSW. The new order might still see itself as Christian, but it was going to be secular.

The sectarian divide between a Roman Catholic especially Irish minority and an Anglican/English and Protestant (English/Scottish) majority continued and had to be managed. Further, not all the population was Christian. There was a Jewish element from the beginning - early colonial NSW was possible the first jurisdiction in the world to grant Government funding to a Jewish school. There was a larrikin irreligious element suspicious of any form of religion and of what it saw as middle class morality, the imposition of social controls - the derogatory Australian term wowser used to describe especially middle class people determined to enforce social morality reflects this conflict. There were other elements as well, including a Chinese population and a little later a Muslim population. Australia probably had more mosques, generally little tin buildings in outback towns, in 1890 than it did in 1990.

The deliberate inclusion of a freedom of religion clause in the Australian constitution reflects this varying history. This is a very powerful clause. However, it is important to recognise just what it means.

The first thing is that it imposes an absolute prohibition on the Australian Government specifically legislating to enforce or prohibit any form of religion or religious observance. I do not know, but I suspect that at this level this is one of the most powerful religious freedoms clauses in the world. The Australian Government (but not necessarily the states) lacks all power to do some of the things that, for example, the French or Turkish Governments have done in regard to head scarves, the Malaysian Government in specifically enshrining aspects of the Muslim religion in law.

The second thing to note is that it does not prohibit the Australian Government from banning certain practices so long as the legislation applies generally and is not specifically applied to a religion.

All Australians are equal before the law, but the law also applies equally: our changing age of consent provisions now place certain Aboriginal customary practices outside the law; female genital circumcision practices are banned; polygamy is banned; and so on.

Those coming to Australia or who live in Australia must comply with our law or pay a penalty under that law.

The third thing to note is that the clause applies only to law. The issue that we have been discussing, the use of the Lord's Prayer in the Federal Parliament, is not a legal matter, but one of custom.

I suspect that few Australians, let alone those outside the country, are aware of either the religious freedom provision in the constitution or of their historical context. Hence this post.