On religious vilification and the law


The NSW Premier Mr Carr recently announced government policy to a rally of evangelical Christians, the Hillsong congregation. It was policy they wanted to hear: there will be no religious vilification laws in NSW.

Only weeks earlier (see Hansard, NSW Legislative Assembly, 21 June 2005), Carr had told Parliament the same thing, and it is in that speech that we might expect to find some rationale for such a policy. At least, something more than an apparent desire to appease a rapidly growing and influential political voice.

Thanks to Peter Nicholson from the Australian

Thanks to Peter Nicholson from the Australian

Rather than a rationale, Carr pieced together many and varied arguments for not acting on religious vilification. It might have made more sense if he’d just said ‘no’. Instead, he told the Parliament that ‘such laws can be highly counterproductive’, and he cited the SA Attorney General saying ‘that most of the people intended to benefit from [a religious vilification]law…are ardently opposed to it’.

True, the SA Attorney General did once say that (see Hansard House of Assembly 2 April 2003), but it was an odd claim for him to make at the time. He said it on the basis that ten faith-based bodies ‘supported the proposal or supported it with qualifications, sometimes heavy qualifications’, and that ‘the main Western Christian denominations, the Greek Orthodox Archdiocese and the Greek Evangelical Church opposed it’. Unless Western Christian denominations count for more, the views seem to have been fairly evenly divided.

The South Australian Attorney General reported that many Christian schools opposed the proposal, but that ‘secular commentators, such as the Commissioner for Equal Opportunity, the Aboriginal Legal Rights Movement, the Bar Association and the South Australian Multicultural and Ethnic Affairs Commission, supported the proposal’.

This looks a long way from ‘most of the people intended to benefit [being]ardently opposed’, but if such a claim was good enough for the SA Parliament, it was good enough for Carr to repeat. And South Australia offered him more than a thinly supported claim from two years ago. Carr attributed to the SA Attorney General the view that ‘vilification laws should not be extended because they are liable to misuse’. But the SA Attorney did not express that view. Rather, he merely reported (see Hansard House of Assembly 24 February 2004) that that view had been expressed in a large number of letters that ‘appear to have been based on a circular sent out by the Hon. Andrew Evans MLC highlighting [matters]of special concern to Christians’.

Does Carr, in common with the Hon. Andrew Evans MLC and his well-organised Christian letter-writers, really rely on the possibility of misuse as a sufficient argument against religious vilification laws? What law is not subject to abuse? What government decision maker does not have to deal from time to time with matters better dealt with differently? That phenomenon has nothing to do with whether society is, or is not, in need of vilification laws.

Although Carr blithely asserts that there are ‘examples out of the Victorian experience’ of misuses of religious vilification laws, he cites none. In fact, only two decisions have been made under the Victorian laws: one complaint was upheld and one dismissed. What could Carr have been talking about? The successful complaint is one that has upset some evangelical Christians, the Catch the Fire Ministries case; is this, for Mr Carr, an example of misuse of legislation?

To further illustrate this claimed risk of misuse of vilification laws Carr refers to a Victorian man’s claim that his being a witch is a religion. One might expect that the relevant tribunal would deal with that as an unremarkable definitional issue, but Carr is concerned that ‘determining what is or is not a religious belief is difficult. It can be defined as just about anything. It is subjective. It is a personal question’. Defining terms is a matter for the parliamentary drafters and the courts; ‘religion’ is readily defined for, say, the purposes of marriage in the Marriage Act.

But Carr seems to doubt the capacity of the drafters and the courts. Claims of religious vilification are, he says, better answered by ‘the commonsense of citizens’ than by wasting the time and money of a government tribunal. Indeed, Carr has great faith in the way people just go about their business: ‘thousands of events [are]examples of a harmonious society in action where faiths respect one another, co-exist and learn from each other’. Wouldn’t the same logic lead us to say that as people don’t usually assault each other we don’t need a law against it?

The muddled nature of Carr’s arguments is compounded when he promises protection to Muslims, and holds them up as an example of why the protection can go too far. He assured Parliament that Muslims are protected, because of their ethno-religious status, by a racial vilification amendment to the NSW Anti-Discrimination Act that he had supported. Then almost immediately he cites Muslims’ objections to the performance of a Voltaire play (in Geneva eleven years ago), to show that ‘vilification laws can easily be used to curb legitimate social comment and free speech’.

Only at one point did Carr come close to engaging with an argument in principle about legislation against religious vilification, suggesting that ‘religious vilification laws can undermine the very freedom they seek to protect – freedom of thought, conscience and belief’. There is a real debate to be had about the balance between restricting vilifying speech and allowing free speech. But it’s not a debate Carr engages in.

The balance between vilification and free speech is often a hard one to find, and as often a very easy one. NSW laws already entrust this balancing exercise to the courts, with laws against vilification on the grounds of race, homosexuality, transgender status, and HIV/AIDS. How does Mr Carr sensibly say that for vilification on the ground of religion œthe commonsense of citizens  is a better protection? He didn’t take this position when he and the Labor Party supported the enactment of the many existing vilification laws in NSW. The potential difficulty of the balancing exercise is no reason for failing to protect people with religious beliefs in the same way that others in the community are protected.

While Western Australia is still sitting on a decision on whether to legislate, and South Australia has said it won’t, in the States that have such laws there has been little action. Two cases have been decided in Victoria, one in Queensland and none in Tasmania. As it happens, the one successful complaint concerned comments about Islam by evangelical Christian ministers.

That case, the Catch the Fire Ministries matter, demonstrates that it is one thing to comment on, even adversely, the teachings of another denomination, but it is another to incite hatred, serious contempt for, or revulsion or severe ridicule on the grounds of religion. That is the dividing line to be respected in a mature and pluralist society. It is a line that is commonly drawn and defined to protect a wide range of groups who might be the target of vilifying conduct. But not, it seems, for religious communities in NSW.

Mr Carr has not yet explained why people are any less entitled to protection when religion is the basis of vilification. He didn’t need to explain it to the Hillsong congregation, but he might need to explain it if ever he is inclined to seek votes among other, less numerous and less publicly supported religious denominations.

Clearly there won’t be religious vilification laws in NSW for quite some time. But not because the government has analysed the need, surveyed the community, debated the principles and formulated a reasoned policy. Rather, because, it seems, the NSW Premier has formed a view that such laws are unnecessary/unworkable/not wanted/open to abuse/different from other vilification laws/likely to undermine free speech/all of the above. Take your pick, in a commonsense kind of way.

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