Religious Vilification Legislation – An Aid to Freedom, or a Source of Confusion?
Wednesday, 29 August 2012
| Doug Hynd
In an article in the Canberra Times on 23 August 2012, the ACT Attorney General Simon Corbell outlined the government's intention to table, in the Legislative Assembly, amendments to the Discrimination Act 1991 that would mean that it would be unlawful for a person to ''incite hatred towards, serious contempt for, or severe ridicule of a person or a group of people'' on the basis of their religion.
In explaining his proposal, the Attorney General noted that since 1991
“… it has been unlawful in the ACT to vilify someone on the grounds of their race, their sexuality, their gender identity or their HIV/AIDS status. The amendment being proposed is simply to add religion to those grounds. The amendments would not restrict religious freedom. On the contrary he was of the view that the proposed legislation … against religious vilification in fact strengthens the right to freedom of opinion and expression by protecting the expression of ideas through a person's chosen religion. Anyone who values freedom of expression through public dialogue must also value the diversity of opinion found in any healthy democracy.” (http://www.canberratimes.com.au/opinion/vilification-law-change-strengthens-free-expression-20120822-24mii.html)
As it turned out there was not time on the legislative agenda for the proposed amendments to be debated by the Legislative Assembly in its final sitting before the election in October. This is a fortunate development in that it will provide time for further consideration of the issues raised by the proposed legislation.
The Attorney General’s proposal has had the curious result of bringing together in ecumenical opposition a number of Christian spokespersons who are not normally found in agreement on matters of public policy. In this case, Jim Wallace from the Australian Christian Lobby, Paul Collins, the noted Catholic author, and the Anglican Bishop of Canberra and Goulburn, Stuart Robinson, have all expressed their opposition. In this position they have been joined by a number of atheists in some vigorous and at times entertaining correspondence to the Canberra Times.
The threshold issue that needs to be addressed is whether legislation is needed at all. What are the harms that have been caused that cannot be addressed by existing legislation? In his article to the Canberra Times defending his proposal, the Attorney General does not offer any instances of specific situations that could not be addressed by other legal remedies. The proposed legislation has not been subject of consultation with the ACT community. Certainly the Attorney in his public comments did not identify any pressing problem that would justify the introduction of legislation. The state of public debate in the ACT is certainly vigorous, but rarely vicious. The Attorney did not suggest whether a few recent examples of leaflets with an anti Muslim bias were the sort of material he had in mind as being likely to fall within the scope of complaints under the amendments.
The next issue that needs consideration is the ‘in principle’ issue as to whether the amendment will strengthen the right to freedom of opinion and expression, or whether it will be a source of vexatious litigation and in fact aggravate relationships between communities with strongly differing views. No evidence on the actual impact of relevant legislation is offered.
The Attorney General’s argument for the legislation is that it offers an educational process because given that “contempt can grow from ignorance, respect can grow from understanding another person's views, including their religious views.” The method of proceeding would be that “complaints about unlawful religious vilification will be addressed through the Human Rights Commission's complaints-handling processes.” A complaints-handling process does not on first glance seem to be an obvious method for achieving the transformational process of developing mutual understanding and respect. While the proposed amendment to the Discrimination Act is not punitive in itself, it does have the effect of bringing debates about fundamental issues within a legal framework.
And it is to the lawyers that we are committing handling of these issues if this amendment is passed. As Paul Collins noted in an interview on ABC local radio in Canberra on Thursday 23 August 2012, legislation is a blunt instrument, and lawyers are not specifically trained to deal with the subtleties of philosophical and theological debates and the complexities of community traditions. Collins certainly expressed skepticism that the Human Rights Commission, which would deal with complaints on religious vilification in the first instance, had the necessary expertise to do so. Does it have the expertise to deal with the issues that may well surface in complaints in a way that will build mutual understanding and respect? He rather thought not and drew attention to the results of the Victorian legislation on religious vilification, where a complaint brought under those provisions ran for several years and ended up with expenditure on legal fees that reputedly ran to around a million dollars.
A further difficulty with any attempt to legislate on religious vilification is that it is almost impossible to define the term "religion" in a way that is neutral between the wide variety of differing ways of being in the world. A survey of both the religious studies literature, and debates in the sociology of religion reveals a deep contestation about whether "religion" is a useful, or even meaningful cross-cultural category. The assumption that we can classify communities and their practices as "religious", I would further argue, has the effect of marginalising them from mainstream debates on issues of justice and the ends that we seek as a community. This clothes supposedly ‘secular' reason with an aura of objectivity that is misleading, to say the least. The understanding that the Human Rights Commission would bring to such complaints would be of such a character.
Certainly, attempts to reach an agreed definition of “religion” in High Court cases relating to Section 116 of the Australian Constitution have not resulted in agreement by the judges. The judgments reveal a distinct lack of agreement on both the definitions and the rationale for those definitions and reflect the substantive disputes in the academic literature on which they have drawn. There will be a problem then in deciding in any consistent and intellectually rigorous way what might fall within the scope of ‘religious vilification’. The addition of the term ‘religious’ to the categories of behaviour that fall within the scope of vilification is in my judgment analytically useless at worst, and highly contested at best. The difficulties on this fundamental issue are likely to benefit only the legal profession.
The other issue relates to the question of freedom. I struggle to understand how the passing of such legislation will lead to greater freedom in public debate. At best, such legislation might provide a means of identifying the boundaries that are accepted by the community in the exercise of freedom in public debate.
I agree with Christian churches and leaders in their expressions of opposition to the proposed legislation against ‘religious’ vilification. No longer having a position of privilege in society, accepting the offer from the state of legislation designed to supposedly support the exercise of their freedom would be a move in the wrong direction. In practice people and groups who wish to misrepresent and verbally assault the traditions and ways of living of other groups in the community will only undercut their own credibility and reputation over the longer term.
Besides the lessons of history that point to the difficulties that arise from dependence on the state to uphold the integrity of the Christian church, there are good reasons in the teaching and practice of the gospels for them to be prepared, if necessary, to accept the difficulties that might arise from not having access to the law to defend themselves. Christians are called to a way of being in the world shaped by following Jesus, a way of life that was characterized by truth-telling and love of enemy. The churches should be quite happy to exercise their existing freedom to live out that calling without the questionable additional “freedom” offered by the ACT Attorney General.
Doug Hynd is a recently retired senior public servant living in Canberra. Doug is on the board of Ethos and is currently pursuing his PhD.