In Freedom of Speech, Religious Freedom

There is a considerable risk that the Morrison government might be contemplating the enactment of discrimination laws that could ban so-called ‘hate speech’ on the basis of severe criticism of religion. The Prime Minister has been reportedly urged by Islamic groups and leadership, including the Grand Mufti of Australia, to extend to religious grounds the existing sanctions against those who might offend others on the basis of race, gender, age, or disability.

I humbly suggest that, rather than expanding the scope of discrimination laws to cover the strong criticism of religion, Australians should remain legally allowed to discuss matters of religion, particularly when this is tied up with political perspectives that encompass communicating matters of undeniable public interest.

My opinion is based upon the view of the Australian High Court as stated in several of its landmark decisions. Overall, these decisions inform that our democratic system of government requires every citizen in this country to be entitled to communicate in a free and open manner about matters of political nature, including when these matters may be intertwined with a more critical analysis or scrutiny of certain religious beliefs and practices.

The implied freedom of political communication is a constitutional principle introduced by the High Court in the early 1990s. This important freedom effectively prevents the government from disproportionately restricting freedom of speech. Based primarily upon the view that the system of representative and responsible government was established by the Commonwealth Constitution, the implied freedom requires that the people and their representatives must be able to communicate in a free and open manner about political matters.

The provision derived from Section 18C of the Racial Discrimination Act is particularly unconstitutional because it is not supported by the external affairs power in s 51(xxix) of the Commonwealth Constitution, with such provision reaching well beyond the intended scope of the International Convention on the Elimination of All Forms of Racial Discrimination. For instance, international law does not recognise the right not to be offended. The second is that S 18C impermissibly infringes upon the freedom of communication about government and political matters implied from the Commonwealth Constitution.

Now it is the freedom to politically communicate on religious matters that is further at risk. The Grand Mufti of Australia, Dr Ibrahim Abu Mohamed, has notoriously called on the Prime Minister to push for new laws to greater protect Muslims against so-called ‘Islamophobia’; that is, the strong criticism of the Islamic religion.

This is confirmed by a leaked video of the Prime Minister meeting with Dr Mohamed and other Islamic leaders at Lakemba Mosque. The video shows Scott Morrison being warmly welcomed by the Muslim leadership and urged by them to extend notorious Section 18C to religious grounds. At the same meeting, the Muslim Association Director, Ahmad Malas, demanded the Prime Minister review all the federal laws so as to address ‘the need for the Government to take responsibility at stamping out the ideology of white supremacy’.

The Australian Grand Mufti notoriously states that Section 18C should be amended so as to allow Muslims to receive the same level of legal protection afforded to ethnic groups. Just as a reminder, this is the same leader who has criticised a secular judge (Justice Fagan of the NSW Supreme Court) for daring to ask why these leaders often fail to disavow the “belligerent” verses of the Koran, thus weakening the convictions of Islamic terrorists.

Justice Fagan made a fair comment, particularly with regards to the apparent reliance on Koranic verses to support a duty of religious violence as fact that has been testified in a number of cases across Australia. If the verses upon which terrorists rely are not the binding commands of the god of Islam, then, Justice Fagan concluded, ‘it is Muslims who would have to say so’.

The opinion of this secular judge was met with profound indignation by the Grand Mufti of Australia. Dr Mohammed was adamant that Koranic verses can never be criticised by whoever the person might be, including the verses in the Koran that promote anti-Semitism and religious violence. ‘This will never happen’, he said, before accusing that judge of being utterly ‘uninformed’ about the real teachings of the Koran: ‘You don’t ask to disavow medicine if some doctors exploit it, you don’t ask to disavow law if some judges misuse it’, Dr Mohammed said.

In the exercise of his role as the country’s primary Muslim leader, Dr Mohammed has met several times with our Prime Minister. Dr Mohammed recently visited him in order to request ‘the introduction of new laws which would make it an offence to discriminate against Muslims’. Dr Mohammed took the opportunity to issue the following warning to the Prime Minister: ‘We are waiting for the response of the two big parties, the prime minister and the opposition leader … and we know that hate and racism are incidental viruses to [Australia’s] society. Everyone, Muslim or non-Muslims, no matter what colour they are, we are all guests on Aboriginal land’.

One cannot hide the irony that, in their attempt to prevent themselves from ever feeling offended, such Muslim leaders have no qualms in deeply offending the country’s majority ethnic group in Australia. Having arrived in our democratic country, many such Muslims escaping from remarkably oppressive theocratic regimes start to develop a visceral hatred for the ethnic majority that have so generously received them in our tolerant society, and often as refugees from their native Islamic nations.

As for their claim that we are all guests on Aboriginal land, of course, if the same rationale were applied to the countries of Northern Africa (and even most of the countries in the Middle East), then all the Muslims living in these parts of the world should consider themselves to be guests on Christian lands. Of course, Islam only became the dominating religion in Northern Africa after many centuries of violence, slavery and ultimately the genocide of the original Christian inhabitants of these conquered lands. And even to this very day Islamists attack and kill Christians in the Middle East and Northern Africa, and burn down their places of worship.

Above all, we should resist the idea that any legislative reform in this country should be used to protect Muslims from feeling offended by means of strong criticism or rejection of their religion. Instead, we must strive to put Australia in line with its international human rights obligations to effectively protect religious freedom in the context of free speech, freedom of conscience, freedom of association, and the right to peaceful assembly.

The International Covenant on Civil and Political Rights 1966 (‘ICCPR’) supports these important freedoms of the individual. It was signed by Australia in December 1972 and its protection to freedom of religion is found in Article 18 of the ICCPR, which is concerned with the right to ‘freedom of thought, conscience and religion’, but also encompasses the right to ‘adopt a religion or belief’.

An infringement of one’s rights protected by Article 18, such as freedom of religion, may also simultaneously involve the infringement of the right to privacy (Article 17), the right to peaceful assembly (Article 21), the right to freedom of association (Article 22), and the right to the equal protection of the law without discrimination (Article 26).

Having endorsed the ICCPR and other international law instruments, the Australian government is obligated to use its legislative powers to further support Australia’s constitutional freedoms. It should protect not only religious freedom but freedom of speech, freedom of conscience, freedom of association, and the right to peaceful assembly.

This can be done because the Australian High Court has generally adopted an expansive approach to the construction of “external affairs”. The external affairs power found in the Australian Constitution, wrote Chief Justice Gibbs in Tasmania Dams (1983), subjects the federal government to ‘no significant limits’, thus offering a potential to invalidate State law in virtually every respect regarding any infringements upon religious freedom.

The Morrison government has under international law the legal (and moral) duty to adhere to Australia’s international human rights obligations. Furthermore, the free exercise of religion is a fundamental freedom of the individual that is legally protected by Section 116 of the Australian Constitution. Courts have also found an implied freedom of political communication, which includes as a corollary freedom of association.

These freedoms must be extended, by logical extension, to religious people and religious organisations. Adding religious people as an additional “class” of protected people further compounds the problem of the constitutional invalidity of laws that may already unreasonably impinge the freedom of political communication. On this count, the changes proposed by these Islamic groups are constitutionally invalid.

Because religious freedom is not the only human right, the question of the relationship between different fundamental rights arises. Article 18 of the ICCPR specifies that ‘only such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others’. Religious freedom can therefore be limited on grounds of national security and broader protection of fundamental human rights for all. That being so, writes CIS Senior Fellow and retired Anglican Bishop Robert Forsyth:

As important as the right to religious liberty is, it is crucial to add that protecting it should not entail any laws that remove others’ rights to criticise, deny or even ridicule any particular religious belief or practice … Therefore, it is essential to rule out any notion that blasphemy should be either reintroduced or reinvigorated as an offence. Nor can religious freedom protection guarantee that religious points of view will necessarily be listened to, or religious leaders respected in public debate. These are matters properly outside the reach of law in liberal democracies.

Professor Adrienne Stone of Melbourne Law School notes that religious speech is in its nature quite often intertwined with ‘political opinions, perspectives, philosophies and practices’. Similarly, law professor Nicholas Aroney of Queensland University comments that, indeed, ‘religion, religious beliefs and religious practices (as well as irreligious beliefs) not infrequently inform, or are tied up with, political perspectives, philosophies and practices’.

That being so, in Evans v State of New South Wales, the Full Court of the Federal Court noted ‘Religious beliefs and doctrines frequently attract public debate and sometimes have political consequences reflected in government laws and policies’. In Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth, Latham CJ noted with respect to religious beliefs:

Such beliefs are concerned with the relation between man and the God whom he worships, although they are also concerned with the relation between man and the civil government under which he lives. They are political in character, but they are none the less religious on that account. [emphasis added]

If religious and political matters are so often intertwined, then one must conclude that any logical derivation to the limitation imposed on freedom of religious communication amounts to a violation of the broader protection to freedom of political communication implied in the Australian Constitution. In other words, since views about religion may so very well influence government policies through Australia’s constitutionally-prescribed system of representative and responsible government, Section 116’s constitutional protection of the free exercise of religion should also encompass communicating and associating about a religion’s view on government or political matters.

If such a demand were to be attended, then the final outcome would be to outlaw our constitutional freedom of political communication if such communication may be displeasing to the inflated sensitivities of radical religionists. As Fairfax journalist David Crowe points out in the Sydney Morning Herald, ‘The obvious danger is a blasphemy law—if not in name, then in effect. At what point does speaking out against a religion turn into a form of discrimination that should be stopped?’

Of course, there is no apparent reason as to why speech about religious matters should not be characterised as political communication to be protected by the (constitutional) freedom of political communication. Arguably, the push to protect people from strong criticism of their religion could provide a legal shield to religious extremists (jihadists) to freely advocate for a religious war against the West, or to promote without due criticism extremist religious ideas which are deeply offensive to the more tolerant and inclusive values of our democratic society.

From a more strictly moral point of view, it is a self-evident truth that no law should ever forbid the strong criticism of religion. After all, some religions absolutely deserve to be severely criticised, perhaps for embracing a theological perspective that fundamentally violate the fundamental rights and freedoms that we share so much in our deeply tolerant and pluralistic society.

Above all, we should never allow our fundamental rights and freedoms to be under-mined by the inflated sensitivities of any religious group, whatever this group might be. In a true democracy, everyone must be legally entitled to criticise religion, and to have the democratic right to consider any form of religious manifestation ultimately retrograde and a potential threat to the preservation of our fundamental rights and freedoms.

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan College, Perth/WA. He is also adjunct law professor at The University of Notre Dame Australia (Sydney campus) and President of the Western Australian Legal Theory Association (WALTA).

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