Identity politics and racial or religious discrimination

By | 5 Apr 2016

Photo of 50th Anniversary of Civil Rights March on Washington for Jobs and FreedomFreedom of expression is a cardinal principle of Humanism and featured as such at the 2014 World Humanist Congress (Australian Humanist 116, p. 1; 117, p. 6). It is well recognized that it is not absolute and may be overridden by common law, laws of obscenity and defamation, etc., which are generally regarded as being directed against the abuse of freedom of expression.

While enjoying robust clashes of opinion we are tempted to conflate the ideas we oppose and the persons who advance them. Or the persons themselves identify with their ideology. That is a challenge to the freethinker, to respect the difference between the person and the idea. Humanists are against unjust discrimination, but at least two of the relevant statutes are problematic.

Racial Discrimination Act 1975

This Commonwealth Act declares certain offensive behaviour, namely a public act ‘reasonably likely … to offend, insult, humiliate or intimidate another person … because of the race, colour or national or ethnic origin of the other person’, unlawful (§18C). §18D exempts ‘anything said or done reasonably and in good faith … for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest’.

The Humanist Society of Victoria (HSV) welcomed those sections of the Act, in order to protect migrants and Indigenous people from that kind of mistreatment and to include them in the Australian community. The Act did not treat racist violence, which was widespread against Indigenous people and indeed institutionalized across Australia.

Two law professors, Dan Meagher and Spencer Zifcak, have since analysed the Racial Discrimination Act from the standpoint of freedom of expression (Meagher, Federal Law Review 32, no. 2, 2004; Zifcak, Australian Humanist no. 121, 2016, p. 3). Freedom of expression in public affairs is a public good which is vital for democracy. On §18C, they argue persuasively that intimidation and humiliation should remain unlawful, being definitely injurious, but insult and offence ought to be deleted, because they are socially tolerable. This is partly supported by the latest report of the Australian Law Reform Commission (no. 129, Traditional Rights and Freedoms, §§4.176, 4.207, 2 March), that ‘offend’ in §18C represented an unjustifiable interference with freedom of speech, although no instances were known to have occurred in practice. (Recall that the libertarian federal Attorney General tried in 2014 to repeal all of §18C.)

Racial and Religious Tolerance Act 2001

This Victorian Act declares racial vilification, defined as ‘conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of’ anyone on the ground of their race, unlawful (§7); and religious vilification also, defined in the same words, on the ground of their religious belief or activity (§8). §11 exempts public conduct ‘engaged in reasonably and in good faith’ for ‘genuine academic, artistic, religious or scientific purpose’ or otherwise ‘in the public interest’.

HSV has been a strong supporter of the Racial and Religious Tolerance Act, regarding it as an educative and civilizing influence which would encourage decent relations. We recommended that exemptions be made for critical debate on religious tenets, condemnation of brutal cultural practices, so-called blasphemy and satire.

The Act obviously does infringe on freedom of expression, protecting persons from vilification without so protecting their religious belief. Since each of the Abrahamic religions has tenets that are incompatible with another Abrahamic religion, if all are protected when operating in this State all must be circumspect. A telling exercise is to turn the problem on its head and ask rhetorically, with Dr Victor Gunasekara (2002), ‘Should the utterance of praise to God be banned on the ground that it causes hurt to the unbeliever?’

The Victorian law on religious vilification is an obvious improvement on the ancient common law of blasphemy, which was seen as treason against the monotheocratic state and punished by death. That particular rationale for blasphemy law fails in Australia, which has never had an established religion. In England and Wales the Blasphemy Act 1697 was repealed in 1967 and the common law of blasphemy was abolished in 2008. The Commonwealth abolished both those laws in 1995. However, in Victoria the common law of blasphemy may yet linger even if asleep. The current incarnation of blasphemy came from the Cairo Declaration of Human Rights in Islam (1990) and advanced the concepts of ‘defamation of religion’ and ‘Islamophobia’; it is vigorously opposed by the International Humanist and Ethical Union.

In 2002, there was a seminar on Islam, held in Surrey Hills, organized by Catch the Fire Ministries, where three Muslim converts were deeply offended by the proceedings. Islamic Council of Victoria alleged breach of religious toleration (Racial and Religious Tolerance Act, §8) and won the case before VCAT in 2004. Catch the Fire Ministries appealed to the Supreme Court and succeeded in reversing the judgment in 2006. They had argued that the law prohibited vilifying persons whereas the seminar only criticized the religion – ‘love the sinner, loathe the sin’ – and there was no allegation of blasphemy. Devout Muslims may have found the distinction alien to Islam. Peter Costello, Bob Carr and Christian activists ‘Salt Shakers’ all urged that the law be repealed. (Hanifa Deen, The Jihad Seminar, 2008.)

Reviewing Humanist policy

The overwhelming majority of people hold core beliefs imprinted during their upbringing and not deliberately chosen by them; to an extent their identity is not their own. They will rarely be susceptible to rational argument. However, freethinkers can encourage them to take a broader view and even to sympathize with their supposed enemy.

Some people will take offence in any context and others not: to censor an action that gives offence deprives the others of its potential benefits to them and to that extent is discriminatory. The Meagher–Zifcak proposal to amend the Racial Discrimination Act is bold, because it expresses confidence in the general resilience of Australian society. If we agreed with it, we might also call for revulsion and severe ridicule to be deleted from the Racial and Religious Tolerance Act (§§7 & 8), going along part of the way with the conservative Christians. Fortunately, both Acts allow speech that is ‘in good faith’ and ‘in the public interest’ – although that seems inapplicable to threats of violence. A possibly weak aspect is that the effect of the unlawful action is taken to indicate guilty intent.

So my question is, is HSV satisfied with its policy of supporting the status quo in these two Acts, or should it change in the direction of freer expression? Those with a gloomier view of human nature than Humanists are glad of the protection against offence and insult, as a bulwark against the more injurious hate speech. We might ask ourselves, who would benefit from relaxing these laws? It would open up social debate, responsible and irresponsible alike. Would the forces of light prevail over the forces of darkness? I invite all members of the Society who have read this far to advise the committee of their wishes in this matter.

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Copyright © 2016 Stephen Stuart