The secular contract: sovereignty, secularism and law in Australia

Abstract

What does it mean to say that a nation-state is secular? Secular law typically begins when a state has no religious competitor for authority. For this reason, it can be said that the Australian state is secular because its authority is derived from its own laws. What makes Australian law sovereign, the highest authority within the state, is its secularity. However, given Australia's colonial heritage, it is not just the absence of religious authority, such as a state religion, that gives the state its secularity. The law's foundations in colonial violence and the extinguishment of Indigenous sovereignty as a competing authority are also a crucial way in which secular Australian law can continue to operate as the sovereign authority within the state. Using the work of Charles W. Mills, I will critically interrogate how legal and political characterisations of the law as secular work to disavow the state's racialised foundations in colonial violence in the form of a “secular contract”. In developing this notion of a “secular contract” I hope to show that secularism be must re-thought of as not simply the operation of law without religion, but also, as complicit with the ways indigenous sovereignties in (post)colonial states are negated.

Keywords:

• secularism
• law
• religion
• sovereignty
• race
• politics

Acknowledgements

My thanks to Maria Giannacopoulos, whose comments on earlier versions of this paper significantly shaped its theoretical and political focus. I am also grateful to the anonymous reviewers whose suggestions enhanced the conceptual and theoretical clarity of the paper enormously.

Notes

1. The full Preamble reads: “Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth” (COA 2003, 7). I will discuss the Preamble in more detail below.

2. Note here that the use of “Judeo-Christian heritage”, like most mainstream political invocations of Judeo-Christianity, does not involve public recognition of specifically Judaic prayers, rituals or traditions.

3. I bracket off the “post” in post-colonial here in recognition of the ways that Australia's relationship (as a former colony) to the United Kingdom may be post-colonial but the Australian state's relations with Indigenous peoples constitutes an ongoing colonisation (see Moreton-Robinson 2009; Watson 2009).

4. Race of course is not the only circumscription of political freedom and autonomy in the creation and operation of liberal nation-states, see for example Pateman (1988).

5. The Australia Act 1986 (Cth) affirmed the status of the Australian High Court as the highest form of legal authority within Australia. Prior to this Act, it was possible for the British Privy Council to review and adjudicate Australian law. Despite this formal separation of the Australian legal system from that of Britain, the Doctrine of Discovery still affects the High Court's ability to recognise the sovereignty of Indigenous peoples. Mabo v Queensland (No. 2) (1992) famously overturned the legal finding of terra nullius. This case also determined that the sovereignty that terra nullius imparted to Australian law must be left intact so as to avoid fracturing “the skeleton of principle which gives the body of our law its shape and internal consistency” (as cited in Giannacopoulos 2007, 4).

6. An earlier version of material in this section appeared in Randell-Moon (2008).

7. Asad is drawing on Carl Schmitt's definition of sovereignty as the ability to declare exceptions to its own law (Schmitt 1985).

8. An earlier version of material in this section appeared in Randell-Moon (2008).

9. I have written elsewhere that the lack of statutory protection for religious freedom enables federal governments to perform a double-movement whereby religious tolerance is simultaneously proclaimed as an important value in Australian society yet legislative protection of this value is negated in deference to the state's neutral non-involvement in religious matters (Randell-Moon 2009).

10. Elsewhere I have argued that the Anglo-Celtic and Judeo-Christian construction of state power and citizenship work to frame Islam as an “intrusion” into and “threat” to Australia's secular society (Randell-Moon 2006, 2007).

11. There is currently a High Court challenge to the Labor government's National School Chaplaincy programme under section 116 on that basis that funding school chaplains amounts to establishment (see Cohen 2011). The government has defended the programme by pointing out that chaplains are prohibited to proselytise (and hence establish a religion) under the terms of the funding (Cohen 2011). What is interesting about the programme is that its implementation is designed to promote the importance of religious values, implicitly Christian ones, but the terms through which the programme is implemented legally prohibit the actualisation of those values through conversion and establishment.