Managing minority religious and ethnic groups in Australia: Implications for social cohesion

Abstract

The author examines Australia’s growing religious pluralism and change within religious communities, including Muslim communities. The meaning of those developments for the concepts of social cohesion and citizenship is considered, as are the possible effects on social cohesion deriving from the lack of a federal bill of rights protecting minority individuals and groups in Australia. Also discussed are the aftereffects of the destruction of the World Trade Center in New York, with the attendant focusing of attention on Muslim communities in Australia and around the world. The passage of dozens of anti-terrorism laws in Australia, and the implications of those laws for limiting the personal and group freedoms of religious minorities, especially Muslims, are examined in terms of concerns about social cohesion. Finally, the debate over whether to allow the development of Shari’a law in Australia and its potential impact on social cohesion are discussed.

Introduction: religious diversity in Australia

Australia is a very religiously diverse society, and is getting more so every day. Whereas in 1961 88% of Australians were associated with one of the Christian groups, that total dropped to 64% by 2006, and apparently is still decreasing (Bouma, 2011). This means that increased competition and even conflict may occur as growing minority faiths seek more involvement in public space in Australian society. Growing competition between religious groups has significant implications for the development of social cohesion in Australia. ¹

There is growing competition and potential conflict within religious groups, as well, brought on in some groups by migration from countries with quite different cultural values and practices (for example, Australia has at least 350,000 Muslims from 80 countries, and 36% are Australian born: Bouma, 2011). Developments within some religious communities (such as ordination of women or acceptance of homosexuals) have also led to internal difficulties in some religious groups (Bouma and Ling, 2007). These tensions also have implications for the maintenance of social cohesion in Australia.

There also seems to be a growing religious resurgence in general, with much more attention being paid to religious matters than in the past (Bouma and Ling, 2007). The resurgence suggests that a significant number of citizens are using religion and religious affiliation as a way of defining themselves in a world where establishing identity can be very difficult, especially for immigrant minority group members. The tragic events of 9/11, along with the Madrid, London, and Bali bombings, have led to even more focus on religious matters, with predictable attention being paid to Islam following those horrific events. Muslims throughout the Western world have since experienced more discrimination, and for some this has led to a reaffirmation of their identity as Muslims, and efforts to resist the stigmatization that has occurred (Hopkins, 2011; Furseth, 2011; Woodlock, 2011).

There are major policy changes in the wind in Australia concerning migration, which have implications for religious/ethnic groups in the society. Also, the policy of multiculturalism is under heavy fire, and Australia appears to be moving back to a more assimilationist, monocultural approach to immigrants (Jakubowicz, 2006; Hocking, 2007). Many migrants in Australia and those whose entry into Australia is being limited share religious traditions that raise concerns among Australian citizens. These concerns and the developments mentioned above all impact social cohesion in Australia as it relates to religion, and the sense of citizenship felt by religious minority members.

This historical and demographic situation in Australia concerning religious diversity and change means that religious minorities not associated with major Christian groups may perceive and experience various forms of discrimination. To the extent this is the case, social cohesion will suffer because discrimination contributes to the idea that the individual and the group of which they are a part are somehow outside of society and its protections, and of less worth than members of the dominant religious and ethnic group. Such feelings and beliefs about exclusion are antithetical to the concept of social cohesion and can dramatically affect the sense of being a committed citizen of a host society (Turner, 2011; Hopkins and Blackwood, 2011).

No bill of rights and few protections for religion in Australia

The concern of minority members about being excluded raises the issue of why Australia is almost alone among the Western industrial democracies in not having a federal bill of rights that would afford more protection for individual rights and freedoms, including religious freedom. McKinnon (2007: 191) states: ‘Resistance to a bill of rights appears in part to reflect a fear that such an instrument would give undue weight to minority rights, fettering the ability of the democratically elected government to respond flexibly to balancing competing social interests’. He goes on to note that some opponents claim that a bill of rights would ‘erode the cohesiveness of Australian society.’ Richardson (1995) points out that strong opposition from the major Churches helped doom efforts to gain a bill of rights for Australia, as they feared it would empower minority religions, and also interfere with how the Churches operate in such areas as the hiring of employees.

Although ACT adopted a limited Bill of Rights in 2004 and Victoria did so in 2007, the proposal to add a bill of rights to the federal Constitution to cover this concern has been dismissed twice by voters, in 1944 and again in 1988 (see Richardson, 1995). Some commentators argue forcefully that having a bill of rights at national level would promote social cohesion by making minority groups feel more protected and welcome in Australian society. McKinnon (2007: 395) claims that having a bill of rights would ‘clarify and strengthen the essential values that underpin and unite our society.’ He adds (2007: 199) that a bill of rights would ‘provid[e] an objective framework for reconciling competing interests’ and serve as a basis for better laws that would protect basic human rights. But, as noted, others disagree. Support for a bill of rights is not shared by many Australian political leaders and the general public, a fact that may contribute to feelings of exclusion felt by some minority religious and ethnic groups.

Compounding problems concerning social cohesion among religious groups deriving from the lack of a bill of rights applicable to all Australians, especially Muslims, is the lack of strong federal or state statutes against religious discrimination. Law professor Jamila Hussain (2004: 221–222) notes that there are no federal statutes outlawing discrimination on the basis of religion. State legislation does exist in Victoria and Queensland that makes racial or religious vilification illegal, but there are many exceptions and exemptions from the statutes, which have little apparent impact on media coverage of various kinds including talk radio ‘shock jocks’, who regularly promote negative stereotypes of Muslims. ² And in NSW, the state with the largest Muslim population, the 1977 Anti-Discrimination Law lists many different characteristics and states that are covered, but not religion. Efforts since that Act was passed to add religion to the long list of protected areas have failed. Hussain also notes that whereas some religious/ethnic groups, including Jews and Sikhs, can avail themselves of anti-discrimination laws that mention race, Muslims cannot do so since they are not considered a racial group. Thus, those that identify with a religion, especially Muslims, may have good reason to feel somewhat excluded from Australian society.

Anti-terrorism and social cohesion

The situation concerning minority religions has become even more problematic post 9/11, especially for the growing Muslim population. University of New South Wales Law Professor George Williams stated recently (2011: 22), while lamenting the passage of so many measures that supposedly deal with the threat of terrorism, that most of them ‘would never have been allowed to pass in the U.S.’ Williams claims that Australia has passed 54 federal anti-terrorism measures since 9/11, averaging one about every seven weeks. He quotes Canadian professor Kent Roach, who said:

Australia has exceeded the United States, the United Kingdom, and Canada in the sheer number of new anti-terrorism laws it has enacted since September 11, 2011. Australia’s hyper-legislation strained the ability of the parliamentary opposition and civil society to keep up, let alone provide effective opposition to, the relentless legislative output. (2011: 22)

Williams agreed that some new anti-terrorism laws were needed in Australia, but noted that the lack of an Australian bill of rights, coupled with the haste with which so many laws were enacted, has resulted in statutes that seriously undermine the protections for Australian citizens. Williams says: ‘The common thread of Australia’s anti-terrorism laws is that they have been enacted in undue haste and reviewed and repaired some years down the track, or often not at all’ (2011: 22). He points out as well that when some of these hastily approved new laws were referred to the Australia Law Commission, and the Commission offered a number of critical suggestions about modifying the laws, its recommendations were ignored. He further notes that, unlike other Western democracies trying to deal with the threat of terrorism, Australia has no bill of rights to serve as a check on executive authority and legislative haste. In a comment particularly germane to the thesis of this paper, Williams says:

… the laws can give rise to a sense of grievance in sections of the community where people believe they have been unfairly singled out. This can be magnified by the exceptional nature of the laws and what can be heavy-handed government and media reaction to their use. (2011: 22)

After noting that the new laws play into the strategy of terrorists who seek to make governments overreact, and that implementation of the laws has been focused particularly on the Muslim community, Williams says: ‘Anti-terrorism laws can cause resentment and radicalization within a community’ (2011: 22). In concluding his provocative essay Williams refers to the recognition among a few government officials of the potential negative impact of this large output of anti-terrorism laws, and says that ‘[this recognition] and other initiatives are required to bolster social cohesion in the face of destabilizing anti-terrorism laws’ (2011: 22).

Williams’ views resonate with those expressed earlier by Monash Professor Jenny Hocking (2007), who wrote in her essay ‘Counter-terrorism and the politics of social cohesion’ that ‘Australian domestic law has been transformed, creating an effective second tier of quasi-judicial process outside the established criminal justice system and free from fundamental legal protections’ (2007: 183). She is particularly concerned about the impact of all the new statutes on racial profiling by agents of the justice system, and states: ‘these “terror laws” at home and the “war on terror” everywhere have given rise to a growing sense of alienation among Muslim Australians[,] against whom they have been directed in practice’ (2007: 184). Hocking’s careful dissection of the new laws helps understanding of their possible negative impact on social cohesion, even if they are accepted by many in dominant social groups within the society.

Hocking closes her essay by noting that Australia’s long-standing policy of multiculturalism has been redefined in the light of the terrorist actions of the past decade. She says (2007: 189): ‘A growing concern is that multiculturalism is, in some unexplored way, linked to terrorism.’ She quotes Petro Georgiou (2005), who asked: ‘How did multiculturalism go from being hailed as an antidote to alienation to being accused of aiding and abetting terrorism, the scourge of the new century?’ Hocking ends by referring to Australia as a ‘post-democratic state, globalized in its form and framework and whose democratic substance is diminished if not seriously compromised’ (2007: 190). Her statement is a disturbing commentary on the prognosis for social cohesion in Australia.

Shari’a in Australia

There have been recent calls by Australian Muslim leaders for the establishment of formal Shari’a courts in Australia (Karvelas, 2011), apparently because there is an assumption that doing so would make Muslims Australians feel more a part of Australian society and more respected for their beliefs and culture. The Australian Federation of Islamic Councils has urged in a submission to a parliamentary inquiry that Muslims should enjoy ‘legal pluralism’, which that would allow family law matters to be dealt with by Shari’a courts promulgating a moderate form of Shari’a that fits with Australian values. The leader of the AFIC, Ikebal Adam Patel, stated in the submission (Karvelas, 2011) that ‘most of the regulations in Islamic law may be amended, changed, altered, and adapted to social change … . AFIC takes the position that Islamic law is changeable according to the requirements of different places and times, and therefore suits the values shared by Australian people.’ Patel added (Karvelas, 2011): ‘This is about personal issues about family and won’t affect any other Australian.’ Patel emphasizes that Australian Muslims are supportive of the Australian legal system, and urges recognition of Muslims values by Australians: ‘Muslims in Australia should accept Australian values, and Australians should provide a “public sphere” for Muslims to practice their beliefs.’ He pointed out that Australia has already made legal accommodations in areas of finance in ways that conform to Islamic law in order to attract Muslim business ³ and in regulating the preparation of halal food. Based on these developments Patel questioned assertions that Australia will never consider Islamic law.

However, is it noteworthy that in subsequent discussions of this matter, Patel modified his position. After coming under serious attack for the AFIC position originally espoused, from both within and outside the Muslim community (Merritt, 2011a, b), Patel indicated that he was misunderstood and now thinks he should never have mentioned the term Shari’a in his comments and in the submission. He said (Merritt, 2011b):

I am a very strong believer in the separation of religion and state and at the same time I am a very strong believer in civil law – the Australian legal system – taking precedence. I would have changed some words, in retrospect, and the use of the word ‘Shari’a’ would have been taken out.

Given this controversy over Patel’s submission on behalf the AFIC and his subsequent comments, it is worth reviewing what scholars say about Shari’a in Australia. University of Queensland Law Professor Ann Black claims that ‘legal pluralism is indeed a reality’ in Australia (2010: 240–241), and that ‘[a]lbeit in the shadow of the Australian legal system, Shari’a informal dispute resolution is quietly flourishing’ (2010: 251). She then discusses whether formalizing the procedures might afford more protection for Muslims and encourage them to feel integrated into Australian society. But on balance Black does not recommend the immediate formalizing of Shari’a tribunals in Australia, but says (2010: 241): ‘time is needed for an Australian Shari’a to emerge.’ She points out (2010: 253) that such an approach has been taken in a few other Western nations, and justifies her position as follows (2010: 242) ⁴ :

As Australian citizens and residents, Muslims can retain their religious and cultural identities and in doing so regulate many aspects of their lives according to Shari’a. This extends beyond religious and devotional requirements to include the legal relationships they enter and terminate – especially marriage, divorce, custody, inheritance, and business dealings – as well as modes of dispute-resolution that they adopt. Disputes can be settled by persons with Muslim credentials, such as imams of mosques, and disputes that intersect with the Australia legal system can be dealt with by Muslim lawyers, both solicitors and barristers, many of whom have an interest in harmonizing the two forms of law. Adherence to Shari’a does not amount to defiance or violation of Australian laws …

One major issue that would arise if Shari’a tribunals were formalized, which Black and other scholars have addressed, is: ‘Whose Shari’a should be selected?’ ⁵ This question refers, of course, to the several different schools of legal reasoning found in Shari’a around the world, all of which are represented among the very diverse Muslim community in Australia (see Saeed, 2010: 235–236). As Black points out (2010: 246):

The Family Law Council of Australia recently noted that, in contrast to other faith communities, there is a diversity of viewpoints and a lack of consensus among Muslims about what could be done to overcome difficulties in relation to divorce in Australia. ⁶

Black raises a serious question about the informal operation of Shari’a in Australia, noting (2010: 248) that for many Australian Muslims this ‘means that its operation is not subject to scrutiny by anyone other than the participants. Nor is it subject to the protection of Australian law.’ She goes on (2010: 248–249) to discuss what might be needed to formalize Shari’a tribunals, even as she recommends not establishing such entities immediately, although she admits (2010: 249) that to do so ‘would be socially empowering and would send a strong message of confidence and acceptance … which would aid in better social integration and strengthening Muslim-Australian identity.’ However, Black also notes (2010: 249) that, ‘conversely, recognizing a separate system of law and institutions for one religious group could be seen as isolating, differentiating, and separating Muslims from the wider community – intensifying the ghettoization of Muslims and re-enforcing a “them-and-us” mentality.’ She adds (2010: 253): ‘If a parallel system of government-supported Shari’a was introduced, it could be held out or perceived as being obligatory for Muslims.’

Australian scholars Malcolm Voyce and Adam Possamai (2011: 339) attempt to ‘deconstruct the idea of a single interpretation of Shari’a in the Muslim communities of Australia.’ They quote Al-Azmeh (1993: 1) that ‘[T]here are as many Islams as there are situations to sustain it’, and they adopt an approach (2011: 339) ‘that sees Shari’a as consisting of universal principles within a specialized framework.’ And they state (2011: 344) that ‘the debate over the opening of the gate of interpretation (ijtihad) in modern Islam has produced not a restoration of tradition, but a modernization of Islamic legal thinking and practice.’ However, they stress the unique pervasiveness of Islamic family law (2011: 342):

Islam allows no separation of the social spheres (in the Luhmannien sense) and therefore applies no differentiation of political and religious authority. Islam is a complete system of living that perceives life as an integrated whole. Family law is central and of eternal value in Shari’a. Its rules are seen as comprehensive …

Voyce and Possamai then develop a concept of ‘multiple modernities’ (following Eisenstadt, 2000), which they use in offering their interpretation of the status of Shari’a in Australia. They say (2011: 346) that ‘with regard to Shari’a, there is a tension between the established secular and post-Christian modernity of Australia and currently growing Australian Muslim modernity’. They suggest (2011: 346) that ‘an Australian Shari’a, somewhat above or across ethnic/sectarian Muslim cleavages, might become more systematic somehow.’ Citing Gole (2000), Voyce and Possamai (2011: 346) posit that ‘the multiple modernities project puts the emphasis on the inclusionary dynamic of modernity, on borrowing, blending, and cross-fertilization, rather than on the logic of exclusionary divergence, binary opposites …, or the clash of civilizations.’

The authors then, again following Gole, describe a ‘post-Islamic stage’ (2011: 347)

in which Islamism is less and less about following political and revolutionary actions, but rather about engaging in social and cultural everyday life practices. ‘Post-Islamists’ would thus be working on new public spaces, on creating new visibility, lifestyles, identities.

Voyce and Possamai do not assume that developing (or allowing to be developed) a functional Muslim modernity will be accomplished easily, but they are suggesting that the forces of modernity and post-modernity cannot be ignored, and that Islam must play (and be allowed to play) a role in how Australia develops its family law system in the future.

Islamic sociologist Jan Ali (2011) has reservations about the implementation of a formal dual legal system that would include Shari’a tribunals in Australia. He is aware that a number of Australian Muslims, particular younger second-generation Muslims, are calling for a dual system, but Ali says (2011: 355):

… the formalization of Shari’a in Australia is not only premature but [also] sociologically unsustainable. Given that Muslims in Australia constitute only 1.7% of the total Australian population, which is ethnically, parochially, and ideologically diverse and divided, and also given that the vast majority of Muslims only selectively practice their faith while many do not practice at all, any agreement of Australian Muslims on one set of laws and order is a sociologically challenging goal and requires first the development of a coherent religious community before Shari’a can be considered for formalization in Australia.

Ali then discusses at length the diversity of the Muslim community in Australia, the many different reasons why Muslim migrants have come from so many different countries, and the many different and quite independent organizational forms that have developed within that community. He says (2011: 361): ‘Muslim migrants have different experiences of Australian society, and these cannot be homogenized … [T]heir experiences as migrants contrast strongly with the popular media representations of Islam and Muslims being uniform and homogeneous.’ He then discusses how Muslims in Australia have organized themselves locally, with less attention paid initially to Islam and Shari’a and more to meeting the material needs that they face as immigrants.

However, Ali then examines the phenomenon of Islamic revivalism as it has developed in Australia, especially among second-generation Muslims. He notes (2011: 366–377) that many young second-generation Muslims are becoming more devout, and that they are also developing ‘newer Islamic movements’ that are much less oriented toward ethnic background or country of origin. He states that these are the Australian Muslims who are demanding a dual legal system so that they can practice their religion more openly and thoroughly. However, in closing, Ali reiterates his reservations about adopting a dual legal system that would implement Shari’a, mainly on sociological grounds of the great diversity of and lack of an overarching organization structure within the Muslim population in Australia.

Eric Kolig, retired professor of Social Anthropology at University of Otago, also discusses many problems raised by developing Shari’a tribunals in Western societies. He says (2010: 272): ‘The questions are endless, and I suspect that contemporary jurisprudence has no firm answers.’ However, Kolig points out (2010: 260) that as of June 2009 there are 85 Shari’a courts being operated in the United Kingdom by the Muslim Arbitration Tribunal under provisions of the 1996 Arbitration Act, thus noting that formal Shari’a decision-making bodies can be developed in Western countries. Melbourne University’s Professor of Arab and Islamic Studies, Abdullah Saeed, says (2010: 225) that such tribunals have operated since the 1980s in the UK, even without formal sanction in law. ⁷ Black, however, points out (2010: 251) that Muslims in the United Kingdom are much more homogeneous that in Australia, since 80% of UK Muslims are from South Asia, making it easier to resolve the key question of ‘which Shari’a to adopt’. ⁸

Professor Saeed points out that other religious or ethnic courts have been functioning in Australia for some time. He says (2010: 230):

A Jewish Beth Din court has operated in Melbourne for a number of decades, providing rulings on divorce, conversions, and adoptions, as well as commercial matters with[in] the Orthodox Jewish community. The court has provided the Orthodox Jewish community with an institution to arbitrate in particular [on] disputes related to the Jewish faith, without threatening or undermining the broader operation of Australia’s legal system or values. Moreover, Koori courts and sentencing circles have also been established for indigenous Australians.

Saeed adds that there is a question about how many Muslims actually desire having Shari’a formalized in Australia. He says (2010: 233): ‘There is no firm data that document how many Muslims support the introduction of Shari’a or Shari’a courts in Australia’ (see also Black, 2010: 250, 252). And he thinks that the majority of Muslims ‘do not see any difficulty in combining notions of being “Western” and Muslim.’ Saeed goes on to say (2010: 234): ‘What appears to be emerging among some sections of the Muslim community is a desire for community-based conciliation and mediation mechanisms to deal with such areas as marriage, divorce, and inheritance, utilizing both Islamic and Australian family law.’ He notes that such activities are already happening, and that (2010: 235): ‘If these bodies are formally recognized, their rulings can be enforced (and, if need be, reviewed) via the legal mechanisms available to other citizens in the Australian legal system.’

Saeed closes his examination of the issues surrounding formalizing Shari’a in Australia by making a very important point that Shari’a law is being modified to a considerable extent in some Muslim countries. He says (2010: 238) that ‘many Muslim-majority countries themselves are “reforming” their family law by taking into account gender equality and international human rights norms.’ He says that as Shari’a is modified in Muslim countries, it may become more compatible with Australian family law and values, and cites developments in family law in Morocco as an example of the changes that are occurring in some places. Saeed asks (2010: 238): ‘If both systems of law [Australian and Shari’a] converge, will there be any real need to establish Shari’a courts?’ In short, Saeed seems to be agreeing with Black, who also argued against rushing to formalize Shari’a in Australia, although for slightly different reasons. ⁹

The issue of gender is always foremost in discussions on implementing some form of Shari’a in Australia, as elsewhere. Jamila Hussain (2004) documents how in Islam, as in other major religious traditions, the role of women has changed markedly over the centuries since its inception to a situation today where women have far fewer opportunities and rights than do Muslim men. Hussain’s recounting of this history raises significant issues concerning how women’s rights factor into considerations of social cohesion. A huge outcry developed in Ontario, Canada, a few years ago over efforts to implement formal Shari’a tribunals under the arbitration laws of Canada (Bakht, 2006; Saeed, 2010), and the effort was led by Muslim women who were concerned that allowing formalization of Shari’a would negatively impact the rights and life chances of Muslim women. Such concerns have also been discussed by scholars in Australia (Black, 2010; Black and Sadiq, 2011; Nazir-Ali, 2010), and need to be addressed as part of any effort to implement Shari’a formally or informally.

Conclusions

This essay has raised several major issues affecting social cohesion in Australia, especially for Muslims, but for other religious minorities as well. Included was a brief recounting of the rapidly changing make-up of the religious landscape in Australia, and changes within religious groups and the greater society that modify the way religion functions in the public space. A second issue concerned the lack of a bill of rights at federal level, and limited protection for religious minorities at state level in Australia, a situation that allows discrimination against religious minorities, which have little recourse in law. A third area of discussion involved the dramatic changes in law that have flowed from the ‘war on terror’, which Australia has joined with considerable legislative enthusiasm. The many new ‘anti-terrorism’ laws, unfettered by concerns that might derive from the presence of a bill of rights, have particularly impacted members of the Muslim communities in Australia. The discussion of issues concerning social cohesion in Australia closes with substantial coverage of the debate over instituting Shari’a courts on a formal basis in Australia. This heated debate, along with the other factors discussed herein, has significant implications for social cohesion for religious minorities, especially Muslims. The debate also illustrates sociological and political contingencies that must be considered if one is to understand how, when, and why legal pluralism develops, and what factors can deter its development (Richardson, 2011).