The more the Australian proponents of “hate speech” censorship insist on “respectful” “conversation” in an attempt to control public debate and suppress dissent, the more they entrench the free speech debate in Australian public life. That debate is increasingly focussing on religious ideas, beliefs and practices, and the promotion of sectarianism is now at the forefront of the “hate speech” censors’ continuing exertions.
The controversy about Australians’ religious freedoms prompted by the lodging, pursuant to s 17 of the Tasmanian Anti-Discrimination Act 1998, of a complaint by the transgendered Martine Delaney (above), a Greens candidate, against the Catholic Archbishop of Hobart should surprise nobody. The complainant is seeking relief for alleged emotional harm said to have been caused by the distribution to Tasmanian Catholics, as a contribution to the nationwide debate about “Same-sex Marriage”, of the Australian Catholic Bishops’ recent pastoral letter, Don’t Mess With Marriage.
Writing in The Weekend Australian on 28-29 November about the legislative scheme invoked by the complainant in the pending Tasmanian case, Paul Kelly provided a timely warning for Australians to be concerned about abridgment of their religious freedoms. As he emphasises, it is central to the free exercise of religion that everyone, believers and their organizational leaders (and I would add, non-believers) alike, have their equal say in all public debate. By its very nature, religion is a source of full-blooded debate. If there is no right to offend or insult the sensibilities of believers and non-believers alike, there is no free exercise of religion.
That fundamental freedom is given partial expression in Section 116 of the Australian Constitution (which borrows, word for word, part of the free exercise of religion clause of the First Amendment to the US Constitution):
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
However, Kelly’s passing attribution of blame to “aggressive secularism” as the main threat to the free exercise of religion in Australia mischaracterises the issue and undermines the strength of his otherwise convincing case against the “hate speech” censorship statute in issue in the pending Tasmanian case.
In Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943), Chief Justice Latham of the High Court of Australia, made the following wise observation:
What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds”, adding that s 116 operates “not only to protect the freedom of religion, but also to protect the right of a man to have no religion . . . [It] proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence religion.
In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006), Justice Geoffrey Nettle, then a member of the Victorian Court of Appeal, supplied the additional sage reminder that it is essential not to conflate criticism of beliefs with criticism of believers:
[T]here are any number of persons who may despise each other’s faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions.
It is not secularism – “aggressive” or otherwise – which is the main menace to the participation of religious believers and their spiritual leaders in open Australian public debate. The real mischief is the archaic law of “offensive” speech (mentioned in passing by Kelly) which emerged more than a century ago and was used to suppress artistic, literary, social, political and religious dissent — including, for example, the nineteenth century London street marches of the newly-founded Salvation Army. Many other examples could be supplied, including its use against protests by unemployed workers in the 1930s. It appeared to have died a natural death after its (mostly) failed and discredited use in the Vietnam War years.
And four decades ago another major advance in the nation’s steady, peaceful progress began to occur by legislative action. Statutes were enacted to prohibit discrimination in employment, the provision of accommodation, the sale of goods and services and in the use of public amenities. The targeted unlawful differentiation in treatment of individuals was defined chiefly by reference to their personal attributes. (Consideration of the limitations of this conceptual approach is beyond the scope of this comment. In October 2012, then Commonwealth Attorney-General, Nicola Roxon, issued a discussion draft of a proposed consolidating Commonwealth Anti-Discrimination Act which listed no less than eighteen attributes, the last of which was expressed in Delphic terms, as “social origin”!)
What was unnecessary for the thoroughly commendable legislative prohibition of invidious discrimination and what has led to controversies of the kind now on display in the pending Tasmanian case was/is the legislative fiction, most notoriously embodied in Section 18C of the of the Commonwealth Racial Discrimination Act 1975 (RDA), that public speech and debate unconnected with any applicable source of actual differential treatment is itself treated as a discriminatory act.
This confected notion that you treat an individual or group differently (or “less favourably” to use the common legislative language), simply by communicating an “offensive” “insulting”, “humiliating”, or “intimidating” statement publicly, reflected a new ideology concerning “minorities”. The meaningless but very emotive abstraction, “hate speech”, was lazily but cleverly coined to justify the resurrection of “offensive” speech prohibitions.
The inevitable and wholly deplorable result of this patronising and elitist ideology, aggravated in recent times by the wilful conflation of religious ideas and race/ethnicity, has been that entire categories of ideas, namely those relating to selected “minorities”, have to be insulated from normal debate for fear of hurting individual and group feelings. Worse still, those statutes are now being used selectively to suppress dissent about specific religious ideas, beliefs and practices. One clear lesson of Australian history, for anyone who can be bothered to consider it, is that such sectarianism will not advance the nation’s wellbeing.
It is the inherent and incurable obscurantism of abstractions like “offensive”, “insulting”, “humiliating”, “intimidating” and their many synonyms which has long made them ideal tools for would-be censors. It is impossible to know where the line is drawn in advance of speaking. It is no wonder that Courts have struggled for more than a century to find meaning after the event.
In its most recent examination of a (Commonwealth) offensive speech provision, Monis v R (2013), the High Court of Australia divided 3:3 on the result of the appeal. In his dissenting judgment, Justice Kenneth Hayne drew attention to the central need when analysing self-assessed claims of vague emotional harm to have regard to the fortitude, self-respect and strength of conviction which inheres in every human being:
History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. . .
[I]f the quantity or even permitted nature of political discourse is identified by reference to what most, or most “right-thinking”, members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right. . .
None of the reactions described – significant anger, significant resentment, outrage, disgust or hatred – constitutes a form of legally cognisable harm. Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them. More than that, the emotional responses described are universal human responses which are among the ‘ordinary and inevitable incidents of life’. They can be provoked for any of a myriad of reasons, in well-nigh any circumstances. Experiencing responses of these kinds does not set the person concerned apart from any save the most sheltered or placid of human beings.
As far as contemporary sacred cows are concerned, multiculturalism should not be beyond debate. Using the much-,exquisite precision which he brings to his use of the English language (and which makes him a leader of the High Court of Australia Bar), Bret Walker SC, speaking in his capacity as the inaugural Commonwealth Independent National Security Legislation Monitor, made this point in his First Annual Report (2011):
The presence of religion in terrorist motivations also adds in most cases the weight of monotheism, a shared attribute of Judaism, Christianity and Islam. Sharing that attribute has not historically linked the People of the Book in close friendship. Such tolerance as monotheism permits is toleration, after all, of others who are held to be wrong. None of this helps to prevent social distrust or hostility when different ethnic and cultural groups travel or migrate, including in settler societies such as Australia. The success of multiculturalism cannot conceal this problem (my underlining).
Humankind being what it is, the hugely successful elitist obsession of the past four decades with soothing privileged categories of hurt feelings produces irreconcilable conflict because of the inevitability of intra- and inter-“minority” hatreds. This is especially so with religious belief which has the least claim to protection since, generally speaking, it is formed by being drummed into the minds of innocent children. In the case of such conflicting hatreds, whose tender “minority” feelings are to prevail, and why? The “hate speech” censors have no answer other than to endeavour to square the circle by, for example, treating criticism of religious ideas, beliefs and practices as a form of racism (howsoever defined).
The reality is that Australia’s status as a secular democracy is central to resisting the ongoing assault on religious freedom and freedom of speech, which, as the judges have opined, includes the freedom to be a non-believer and the freedom to criticise any and all religious ideas, beliefs and practices.
Fired-up with renewed zeal after spearheading the defeat of the proposed repeal of Section 18C, the Australian Human Rights Commission has begun agitating for more sectarian folly. In early November 2015, it published a report to commemorate the fortieth anniversary of the commencement of the RDA. That report advances a case for the amendment of Section 18C by the express mention of religion so as to protect a named category of “minority” religious sensibilities. Perhaps a second nationwide debate on Section 18C will enable more Australians to think about the fundamental importance of Section 116 of their Constitution (and the Constitution’s modern implied freedom of political communication) and to be persuaded that it, together with its state and Tterritory cousins, are an affront to both freedom of speech and freedom of religion.
Such a debate and the present debate about the Tasmanian statute would also provide an opportunity for the following provision of the Tasmanian Constitution to be considered:
46 (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
(2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.
L W Maher is a Melbourne barrister