Can religious vilification laws protect religious freedoms?

On June 28, the Thornlie Mosque and Australian Islamic College in Perth was targeted by vandals. A vehicle was destroyed by fire, and offensive graffiti was sprayed on a nearby wall.

True, the law courts can respond accordingly if the offenders are caught, given this attack involved criminal offences. But is there not also a role for anti-vilification legislation to bolster society’s defences against the more overt and worrisome displays of religious bigotry?

What the law says now

As a signatory to the International Covenant on Civil and Political Rights, Australia is obliged to enact laws prohibiting:

… any advocacy or national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

To that end, there is a great deal of state and federal legislation now in place that grants civil remedies in the event of racial and religious discrimination. Notable is the federal Racial Discrimination Act, enacted in 1975 and amended in 1995 to add the controversial Section 18C (the “racial hatred” amendment).

The Coalition promised, during the 2013 election campaign, to rescind Section 18C. This promise was later abandoned by the Abbott government.

There is other legislation, too, that specifically criminalises acts of racial hatred, such as South Australia’s Racial Vilification Act.

This legislation, however, does not protect those who have been vilified because of their religious beliefs. An observer might think that being a Jew, Muslim, Sikh, or Buddhist is as much an issue of religion as it is a matter of race or ethnicity, so it doesn’t really matter.

But that is not necessarily the case. In law, “race” is determined on the basis of a combination of genetics, shared history, and cultural traditions. This need not include religious observance.

This issue arose, somewhat obliquely, in the 2003 Jones v Toben case. Jeremy Jones, then-director of the Executive Council of Australian Jewry, claimed that Fredrick Toben’s Holocaust denial website was in breach of Section 18C. The Federal Court agreed, finding that some particularly egregious assertions on the website did breach the act.

In an interesting twist, Toben had claimed that Judaism was a religion, thus the act didn’t apply. The court disagreed, finding that Judaism was sufficiently “racial” to be covered by the act. The court did not say, and it cannot follow in any event, that being Jewish means that one affirms the Judaic faith.

To further complicate matters, in some legislation, such as New South Wales’ Anti-Discrimination Act, the definition of “race” includes “ethno-religious” origin. But the NSW Administrative Decisions Tribunal Appeal Panel has ruled that determining whether there has been discrimination on the basis of race cannot be done by referring to an aggrieved person’s religion.

So what does all this mean? It means, simply, that one cannot rely upon the laws that proscribe racial and religious discrimination to be protected from religious vilification.

Should there be specific legislation?

Yes and no.

Yes, all people have the right to be protected from religious vilification, especially in this post-election era. On July 2, a not-insignificant proportion of Australians indicated their strong preference for candidates advocating a ban on burqas, an end to the building of mosques, and the scrapping of halal certification.

On the other hand there should be no such legislation because we cherish our freedom of speech. Vilification laws are a serious limitation on that freedom.

Let’s look at the current state of the law. There are three pieces of legislation in Australia that address religious vilification. In Victoria, a person convicted of “serious religious vilification” faces a fine or six months’ imprisonment. There is a similar penalty for a conviction under the law in Queensland. A person convicted in Tasmania faces fines and orders for compensation, but not imprisonment.

Other legislatures have been decidedly timid, and so, it seems, have the courts. Of the few complaints that have been taken up by prosecutors, the most highly publicised was the trial of Catch the Fire Ministries. Outspoken Christian fundamentalist pastors Danny Nalliah and Daniel Scot were found by the Victorian Civil and Administrative Tribunal to have vilified the Muslim community during an anti-Islam seminar and in their writings.

On appeal, they succeeded in having the matter referred back to the tribunal, but it was settled by mediation en route.

Where should we go from here? I am of the view that we should be wary of legislative intervention. I agree with a number of academics, such as Fran Barber, that passing such laws can create more problems than it solves. There are non-legal mechanisms – education, community programs, conciliation – that can better foster religious tolerance than the use of the adversarial legal system.

In the end, it’s a moot point. Given the muscles that the One Nation senators can now flex in Canberra, and given the campaign being waged by the Institute of Public Affairs, not to mention the simmering antipathy towards Section 18C of both Attorney-General George Brandis and conservative columnist Andrew Bolt, one can safely assume that that the section will not be widened in the foreseeable future by any new “religious vilification” amendment.

That would simply be pouring petrol on the fire that Pauline Hanson is likely to start lighting under the Racial Discrimination Act very soon.