Peter Smith

The Legal Minefield of Subjective Offence

18c logo IIIThe Commonwealth is considering a bill to change the Racial Discrimination Act 1975 (ARDAct) in respect to Section 18C. Any change here should also be reflected in the Human Rights and Anti-Discrimination Bill 2012 (HRAntiD) since the words ‘offends’ and ‘insults’ appear in the Exposure Draft clause 19-2. However, there is another significant factor needing attention. This is in respect to a person’s religion and or culture/ethnicity, as these Acts fail to identify what specifically is being targeted.

The Australian Human Rights Commission (HRC) in its 2015 Report questioned whether the ARDAct includes protection of religion against vilification, yet the Act specifies religion in Section3(1) “…fundamental freedoms for all, without distinction as to race, sex, language or religion” and in Part I Article 5(d)(vii) “freedom of thought, conscience and religion”. Hence the terms ‘offends’ and ‘insults’ are relevant to the religious stance of every person.  The NSW Anti Discrimination Act 1977 refers to religion under its title of ‘Prejudice and Tolerance’.  Kate Eastman SC has argued that since “a person’s religious affiliation may be a marker of his or her ethnic origin”[i] a public comment on a person’s religion can be a comment on ethnicity.

It is true Section 18D provides some protection for freedom of speech; nevertheless, an aggrieved person could declare another as a perpetrator rather easily at present due to the lack of definition as to the boundaries to the meaning and use of ‘religion’ in this or any vilification- or anti-discrimination act.

Is the person’s identity the subject of discrimination, or is the religion or the culture under threat?  Clause 19-2 (HRAntiD) indicates personal offence is an adequate basis for declaring another person to be the offender.  But the issue is a question of whether the person’s private religious stance, or just the religion, is under attack.  One can accept that language which conveys hatred of a person should be legally resisted. However, language which critiques a culture or a religion should be allowed as part of freedom of speech.  The NSW Act brings everything it can under the category of Prejudice and Tolerance.  So almost anything can become a marker for religious discrimination. Those who would like to have freedom to debate a religious issue should be scared of the application of the Act due to that lack of clear boundaries .

Looking at the general term ‘religion’[ii], an analysis shows a range of aspects which may be assumed to be part of a particular religion. There are ethical principles, ritual demands and arguments as to the expectations of the religion being expressed by the offended person and whether that individual is following the demands of any written requirement or of a Divine Being.  For instance, when Guardsman Lee Rigby was killed by two Kenyans in London, his murderers insisted they were merely obeying sharia law and the will of Allah.[iii]  In other words, what they did was in obedience to a religious ‘cause’.

The critiquing of principles, rituals and/or arguments of a faith should be regarded as a valid activity which, in itself, allows for a potentially helpful response in defining a religious ‘cause’.  There are legal requirements which may be linked to rituals and/or expectations as to relationships with others of the same faith and/or with the Divine Being[iv].  Yet one recognises that some legal requirements can be considered by followers of that faith as demands which must be met in order to remain part of the religious faith.  Such demands in some religions may be best seen to be essentially a ‘cause’ to be achieved and thus a requirement ideally of every follower. Recently we have witnessed in a number of countries some people pursuing these ‘causes’ which are identity markers of the religion and, as a result, the critique of the identity marker is deemed to be a criticism of the identity of the person, as happened in the Catch the Fire Ministries Inc VCAT judgements (Dec. 2004)[v].

When a religion has a clear ‘cause’ element it may be determined that such a religion is an ideology. The identity issue raises its head again: should we distinguish between a religion and an ideology? More specifically, should we distinguish between an identity marker in a religion and an ideology[vi].  Under freedom of speech expectations the law should not disallow dialogue of an ideology and, therefore, it should not disallow freedom to debate identity makers in a religion.  Likewise there should be no restriction on critiquing a culture.

Culture may then be deemed to be an aspect of anyone’s religion, but critiquing the culture should not be regarded legally as an insult of those who regard this as their cultural position. Critiquing culture or ideology or an identity marker in any philosophical or religious belief is not vilification of a person or group of persons.  Anti-discrimination and vilification acts should be clear that they are directed against offending persons, rather than a religion, culture or an ideology.

This means that identity is critical to any argument. But whose or what identity? The Australian Commonwealth Act does not set out any boundaries as to the use of these terms, with the result that judges are likely to be influenced by their own understandings of the intentions of the Act or the intentions of the insult.  The words ‘offend’ and ‘insult’ are too broad and too vague to be legally useful (these words are not in the relevant international treaties[vii]).  As anti-discrimination acts usually refer to an individual who has been offended, the first issue is identity of the insult.  If the abuse is not of a person but of a religion or a culture or an ideology then this should normally be a legitimate part of dialogue.

If it is abuse of the religious identity of a person(s) then there is still the question as to what is actually being abused?  Is it the religion of the 10th century BC or the 1st century AD or the 7th century or the current year which is deemed to be abused, and is the claimant arguing for a past religious stance or a current one? Can a person claim abuse for following a religious stance no longer held by that religion? Is the critical statement made against a comment in the religious literature, or is it the expression of the faith made uniquely by one person at a particular point of time or an expression outlined in the documents (past or present) of that faith? Again the question of identity arises. Was the insult aimed at a particular person or group of persons, or was it an attempt to raise an issue promoted by the religion which needs to be further debated or reformed?

The Commonwealth Anti-discrimination/Racial Discrimination acts seem to refer to individuals who consider they have been insulted, in which case the whole debate can be and should be open to understanding that this claim is a subjective claim and the abused’s consideration as to what is being insulted is rooted in subjective beliefs.

Any person who holds to an historical and written record of their religion will have his or her own understanding of aspects and of applications of that faith.  Does government need to protect individual understandings of an historical faith or even of a newly developed faith? If the government considers that every personal religious position must be protected then the Act needs to indicate boundaries.  A failure to have such boundaries means that anyone can blame another person for “abusing” his/her unique religious/cultural stance and call the so called “abuser” homophobic, sexist or extremist.

Canon Dr David Claydon is an author, conference speaker on international affairs, Chair of Dealing with Diversity Conference and of Barnabas Fund’s Persecuted Minorities Advocacy Committee.

[i] Freedom from Discrimination HRC National Consultation Report 2015 p62.

[ii] One recognises the difficulty in defining religion.  Emile Durkheim defined it as “A unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.”  (E.Durkheim, The Elementary Forms of Religious Life, 1951 trans. J.W.Swain, Free Press, New York 1975, p 62).

[iv] Note also that Allah/Sharia must be obeyed as a protection of the honour of Allah and the ummah (the religious community) – Patrick Sookhdeo, Global Jihad, Issac Pub, 2007, p108ff & see Qur’an -Surah 24:2.

[v] See for instance

[vi] Section 116 Article 18 of the Australian Constitution refers to “freedom of thought, conscience and religion”, so ideology is caught up in the ARDAct.

[vii] Augusto Zimmermann, a Senior Lecturer in Constitutional Law and Legal Theory at Murdoch University in WA. And see his article in Quadrant July–August 2013 p52-7

  • ianl

    I’m not suggesting that David Claydon’s essay above is gobbledegook – rather, he is attempting to describe it. I prefer the term Disenlightenment to describe this situation, with despair as the only rational response. The sticky, nasty thornbush is way too dense and tangled to become transparent even if the bureaucratic/political wish to do so was there. Given the dissembling and weasel evasions we hear constantly on what all this means (which this essay details well), it’s quite obvious the intent of general censorship is the driving purpose. After all, conversations around the kitchen table are clearly subversive.

    As ex-High Court Justice Kirby once opined on another matter (paraphrasing): “While it may seem desirable for the law to be emphatically clear so that citizens may be sure they are obeying it, a balancing principle requires some modicum of fear to exist in order to keep the populace under control – this balance may be achieved by deliberately reducing transparency of law”.

    > “The words ‘offend’ and ‘insult’ are too broad and too vague to be legally useful …”

    I disagree with David Claydon here. The broadness and vagueness are indeed legally useful if one accepts the intent of the various Acts.

    • pgang

      It’s the ambiguity of the intent that’s the problem, leaving it open to authoritarian interpretation.


    The target of this article should really be the odious State laws on the subject (Commonwealth laws do not and cannot prohibit religious discrimination). In Victoria, only yesterday we had individuals convicted of criminal offences for breaching the Orwellian-sounding Racial and Religious Tolerance Act 2001, which does not tolerate dissident behaviour.

    The Victorian Act prohibits engaging “in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons”. In their wisdom, the authorities have chosen to interpret the “class of persons” to mean a religion per se, so attacking a religion is deemed to be an attack on the “class of persons” who adhere to the religion.

    The case yesterday was one in which a very public and frankly provocative attack on Islam was at the centre, but there is nothing in principle to prevent prosecuting any attack on Islam that can be plausibly characterised as citing “serious contempt for” or “revulsion” of Islam. Truth, it should be noted, is no defence under the Victorian law.

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