This article is part of our March theme, which focuses on an ongoing challenge to Australian society: Race & Discrimination. Read our Editorial for more on this theme.
Australia is obliged under international human rights law to prohibit incitement to racial hatred (Article 20 of the International Covenant on Civil and Political Rights). The Commonwealth, every state, and the ACT (but not the Northern Territory) make racial vilification at least ‘unlawful’, and at times a criminal offence.
In such laws the words ‘racial’ and ‘race’ are used not for a pseudo-scientific purpose, but as shorthand for the many ways that a person’s own and perceived identity turns on personal attributes such as their physical appearance, where they were born and raised, their culture, and their traditions. As a result, ‘racial’ vilification laws protect against hateful conduct that occurs because of, for example, a person’s nationality, ethnicity and culture.
Australia’s vilification laws are, however, a hotch-potch of differences, in terminology, legal tests and procedures depending on where in Australia the conduct occurs, what the conduct is, and what the basis for conduct is. The usual test for racial vilification in the states and the ACT is inciting hatred towards, serious contempt for or severe ridicule of someone because of their race. But the federal law sets a lower threshold, prohibiting conduct that is done because of a person’s race and is reasonably likely to offend, insult, humiliate or intimidate them.
Race or religion?
Whatever the terminology or legal tests, all vilification laws take the same approach in that they categorise people’s attributes: the question that the law usually asks is “what was the reason for the conduct”, and if the answer is “race” then the conduct could be unlawful. But categorising people’s attributes is not as simple as the law assumes, and separating a person’s race from religion does not reflect the way in which, say, Jews or Sikhs usually see themselves. Nor does it reflect the daily experience of many people in Australia, whose race is assumed to indicate their religion.
Even though people may keep their own racial and religious identities separate, others’ perceptions of them can be different. This has commonly been the case for people of Arabic appearance since the bombings in the United States on 11 September 2001: on the basis of their Arabic appearance they are assumed to be Muslim. In these circumstances the law’s determination to categorise people is often inadequate to the task of dealing with the complex and nuanced reasons for people’s behaviour.
In these circumstances the law’s determination to categorise people is often inadequate to the task of dealing with the complex and nuanced reasons for people’s behaviour.
From a technical legal perspective there is an upside to this. Few Australian jurisdictions prohibit religious vilification, but almost all prohibit racial vilification; if a complaint is made about conduct that was because of a person’s religion/race, it can be dealt with and recorded as a “racial vilification” complaint. In this way the abusive treatment of a Muslim can be addressed and resolved even if – as is usually the case in Australia – the law does not cover religious vilification.
But this pragmatic blurring of law’s race/religion distinction runs up against the problem of law’s strict categories when a complaint has to go to litigation. Unlike the agency that receives and tries to resolve the complaint, a court or tribunal will have to categorise the complaint, and will have to decide if the reason for the vilifying conduct was a person’s race, religion, neither or both.
Race and religion?
One response to law’s current inability to deal with this blurring of the race/religion distinction might be to ensure that wherever there is protection for racial vilification there is as well protection for religious vilification. An immediate problem with this, however, is that some Australian parliaments have been stubbornly resistant to enacting religious vilification laws. Such laws exist only in Queensland, Tasmania and Victoria, and in recent years NSW, SA and WA have explicitly rejected legislating in this way and the Commonwealth has made no move to do so.
Another problem with legislating against religious vilification in a way that simply copies racial vilification laws is that to do so would entrench law’s categorisation of conduct, and would require a person to make the ‘correct’ complaint of either racial or religious vilification, and risk getting it wrong.
An alternative is the approach in NSW and Tasmania, where race and religion are joined in the term “ethno-religious”. But the term has not been defined, and although it is accepted that the term covers Jews and Sikhs, it is not clear whether the term covers, for example, Christians, Muslims or Buddhists. It probably doesn’t, because a Christian, Muslim or Buddhist is not ordinarily assumed to be of any particular ‘race’ in the way that racial and religious identity can conflate for Jews and Sikhs.
A further alternative is for vilification laws to recognise ‘intersectionality’, and to allow a person to complain of conduct which is, or appears to be, based on multiple characteristics. Recent submissions to a Commonwealth inquiry into anti-discrimination laws promote this approach. But it runs up against the same reluctance to legislate against religious vilification at all.
This reluctance is hard to explain as a matter of principle, and may be a largely political view – elected governments seem more concerned about electoral (and commentators’) backlash than about establishing benchmarks for respectful, human rights compliant behaviour. The feared backlash would be based in large part on a claim for “freedom of expression” (popularly called “free speech”), but that term is commonly – perhaps wilfully for some – misunderstood.
Anti-vilification laws are indeed a constraint on freedom of expression. But constraints on freedom of expression are unremarkable, and most of them come down to the classic libertarian “harm” principle: “As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it” (John Stuart Mill). Freedom of expression in Article 19 of the Universal Declaration of Human Rights is similarly limited: Article 29 recognises limits on a person’s freedom in order to secure respect for the rights and freedoms of others.
Put simply, freedom of expression is limited to the extent that it does not harm others…
Put simply, freedom of expression is limited to the extent that it does not harm others, and this leads to a balancing exercise, in law and policy, between the human right of free expression and the obligation to not cause harm.
This balancing exercise is reflected in, for example, long-accepted defamation laws that limit free speech so as not to harm another’s reputation, and criminal laws that limit free speech so as not to incite a crime. Religious vilification laws are another such limitation, and they operate quite narrowly: they operate only when it is an abuse of a person because of their religion, and there remains unlimited freedom to express views on a religion itself. (Mr Bolt ran into this problem under the federal racial vilification laws: he was free to comment on the issue of racial identity, but not to attack a person because of their race.)
The narrow focus of religious vilification laws allows doctrinal debates to rage on, as long as people are not, themselves, vilified for their faith.
The blurring of a race/religion distinction – or, to put it another way, an increased willingness to make assumptions about a person’s religion because of their race – has led to an increase in complaints of both racial and religious vilification.
In some form, and in some relationship with racial vilification laws, laws to prohibit religious vilification are a necessary step towards protecting people against hostile conduct based on the (perceived) intersectionality of their race and religion. It seems that it will take unusual courage these days for a government to legislate, and to take the same stand against religious vilification as has already been taken against racial vilification.
Whether the States and Territories pass such laws is a matter of politics and will. The Commonwealth government is in a different position, because it has clear and unfulfilled obligations under the International Covenant on Civil and Political Rights. Not only has Australia not legislated against religious vilification, its obligations in relation to racial vilification remain unfulfilled; despite a promise to the United Nations of over 30 years standing, Australia still has not criminalised racial hatred as required by the Convention for the Elimination of All forms of Racial Discrimination.
It is possible that the Commonwealth government will enact a new ‘consolidated’ discrimination law in the next year or so. This presents an opportunity for Australia to give full effect to its international human rights obligations by allowing debate on issues of race and religious to flourish, within the ‘harm’ limitation of preventing race and/or religious vilification.
Simon Rice OAM is Director of Law Reform and Social Justice at the ANU College of Law. Simon is a former judicial member of the NSW Administrative Decisions Tribunal (Equal Opportunity Division), and a former President of Australian Lawyers for Human Rights. He is a co-author of Rees, Lindsay and Rice ‘Anti-Discrimination Law in Australia’ Federation Press 2008, and McBeth, Nolan and Rice ‘The International law of human rights’, Oxford University Press, 2011.