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com INTRODUCTION Designed to address racial and religious slander in each State, the parliaments of Queensland and Victoria enacted legislation in 2001 entitled the “Racial and Religious Tolerance Act 2001 (Vic)” while the Queensland statute was more conventionally named the “Anti-Discrimination Amendment Act 2001 (Qld)”. The statutes hold the vision and purpose to enable aggrieved victims or their champions to lodge a complaint of racial or religious vilification with the relevant state authorities. In addition, both statutes prescribe criminal offences for more serious incidents of racial or religious intimidation, harassment, abuse or violence. The Victorian Act is a new enactment in its own right whereas the Queensland statute takes effect to amend the Queensland Anti-Discrimination Act 1991 (ADA (Qld)). The new Victorian provisions commenced on 1 January 2002 and the Queensland provisions in June 2001. This paper addresses the nature of Australia’s anti religious vilification laws and its impact on the freedom of speech through its implementation. ANTI- RELIGIOUS VILIFICATION LAWS: NATURE, SCOPE & PURPOSE There have always been implied codes of conduct to promote harmony within the community. Harmony is an essential element of unity and peace which has for long played a part in upholding tolerance among different races and religious groups. ‘Harmony' requires more than ‘respect and justice.' ‘Real harmony' is only possible when the cause of the friction is removed. The alternative is a mutual ‘respect' for the differing viewpoints. In both cases it can only be achieved through dialogue on the basis of reason. Equal ‘justice' is presumed to apply in every situation and at all times.1 With regards to the terms “Religious freedom” and “Vilification”, such terms have been often misinterpreted or loosely defined and such aspects are seldom recognised or applied.
1 Keith Cormish, Racial and Religious Vilification (WA) (2004) Atheist Foundation of Australia Inc. <http://www.atheistfoundation.org.au/submissions/racial-and-religious-vilification-wa> at 4 September 2012.
‘Religious freedom' should imply ‘freedom from religion' but this aspect is seldom recognised or applied.2 This is particularly noticeable and present in public schools where parents or guardians must submit written application for the children or child under their care to be excused from attending religious education sessions. There are many areas where religious organisations are granted special privileges which are denied to non-religious organisations. ‘Vilification' on the other hand is very loosely defined term and will need a much better definition. While ‘racial vilification' is defined, ‘religious vilification' is not defined. As ‘religious belief' is defined therefore, to avoid discrimination, ‘non-religious belief' must also be defined.3 Vilification might take many forms in a workplace. The scope of vilification would include public acts such as hate-speech, racist gestures or graffiti, racist material posted on Internet sites, or through workplace intranet or email messaging systems, the distribution of pamphlets or stickers and the wearing of clothing, insignia or badges with racist or derogatory religious meaning. Given the applicability of the legislation to work relations, and the climate of heightened racial and religious tension in Australia, it appears to be particularly timely to note these new Victorian and Queensland provisions on racial and religious vilification and to briefly discuss their potential application in work contexts.4 Anti-vilification laws play an important role in ensuring that people can live free of mental and physical violence.5 The preamble of the Racial and Religious Tolerance Act 2001 (Vic), while recognising that “freedom of speech is an essential component of a democratic society” expresses the rationale for anti-vilification legislation as follows:
4 Alan Chapman , “New Vilification Laws and Victorian and Queensland Work Relationships” (2002) 15 AJLL 277.
5 M Jones, “Empowering Victims of Racism by Outlawing Spirit-Murder” (1994) 1 Australian Jnl of Human Rights.
“Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community” Such laws arguably set public standards and provide a platform for education of the public and particular sections of it such as the media.6 The possibility of significant awards of damages, adverse publicity and the threat of criminal charges may also act as a brake on the most extreme forms of racist, homophobic and transgender violence, harassment and intimidation. In the years prior to the introduction of Commonwealth legislation, three national enquiries into race-related issues recommended legislation in relation to racial and religious hatred.7 The “Racial and Religious Tolerance Act 2001 (Vic) (R&RTA)” starts with an extensive preamble of four paragraphs, which sets out specific objects and purpose clauses. The content of these provisions reflects the contentious context of this enactment. The preamble also reflects on the values of ‘freedom of expression’ in addition to the ‘right of all citizens to participate equally in society’, the diverse ethnic and indigenous and religious backgrounds of people of Victoria, and that slanderous conduct contradicts directly the democratic values for they diminish the ‘dignity, sense of self-worth and belonging to the community’ of the people vilified. The statute recites that vilifying conduct: “also reduces … [people's] ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community”.
6 N Hennessy and P Smith, “Have We Got it Right? NSW Racial Vilification Laws Five Years On” (1994) 1 Australian Jnl of Human Rights
7 Mary Tibbey, “Developments in anti-vilification laws” (2001) 21 Aust Bar Rev, 204.
Along with this preamble, the Act contains lengthy clauses setting out the purposes of the Act8 and the objects of the Act9. Section 4(1) specifies that the objects of the Act are: (a) to promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy; (b) to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons; (c) to promote conciliation and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified. Section 4(2) sets out the intention of Parliament which is that the provisions in the statute are interpreted so as to further the objects of the Act. Clearly, the objects will be important in the processes of both adjudication, and conciliation, of complaints made under the provisions. Even in the absence of s 4(2), the objects clause would be an important reference point. It is now well established that objects clauses are vital to interpreting the provisions contained in antidiscrimination, or human rights, statutory protections. Such legislation should be regarded as beneficial and remedial legislation and be given a broad interpretation.10 11 DISPUTES & RESPONSES ON IMPLEMENTATION
8 Racial and Religious Tolerance Act 2001 (Vic), s 1.
9 Ibid, s 4.
10 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 196–7.
11 Waters v Public Transport Corporation (1991) 173 CLR 349, 406–7.
The freedom of religion is one of the fundamental rights enshrined in the federal constitution of Australia. Article 116 of the Commonwealth Constitution provides: “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.” Despite this, disputes often arose from acts of discrimination and were dealt by the relevant authorities. In Krygger v Williams12, the High Court dismissed an appeal by the appellant from his conviction under s 135 of the Defence Act 1903 (Cth) which provided that ‘every person who in any year, without lawful excuse, evades or fails to render the personal service required by this Part shall be guilty of an offence’. Both Griffith CJ and Barton J rejected an objection based on s 116 of the Constitution that the Defence Act was a law prohibiting the free exercise of the appellant's religion. Griffith CJ said: ‘To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion.’ In Goldberg v G Korsunski Carmel School13, the Equal Opportunity Tribunal of Western Australia considered and dismissed a complaint of religious discrimination. The respondent was established to provide Orthodox Jewish education to Orthodox Jews. Restrictions were placed upon the proposed enrolment of the son of the complainant because of their non Orthodox Jewish status. The tribunal found that the complainant’s son was discriminated against on the ground of his religious conviction. The school was excused from liability because it was an ‘educational institution’ conducted in accordance with the doctrines of a particular religion or creed, and had acted in good faith ‘in favour of the adherents of that religion or creed generally’. Following the introduction of the R&RTA in 2001, multiple groups have expressed dismay at the scope, purpose and implementation of such laws. Individuals such as Bill Muehlenberg voiced out a response in the Christian Today Australia Columnist:
12 Krygger v Williams (1912) 15 CLR 366.
13 Goldberg v G Korsunski Carmel School (2000) EOC 93-074.
“Among the worst laws to have been recently enacted are religious vilification laws. They are a direct threat to freedom of speech, freedom of religion, and freedom of conscience. They serve no useful purpose in a democratic society. But such laws greatly appeal to secularists and statists who seek to stifle the proclamation of the Christian gospel.”14 In Deen v Lamb15 , the President of the Anti-Discrimination Tribunal Mr Sofronoff QC, dismissed a complaint of unlawful religious vilification under s 124A (1) of the Anti-Discrimination Act 1991 (Qld) made by Mr Deen, a Muslim and the Chairman of the Islamic Council of Queensland Incorporated, relating to a pamphlet distributed by Mr Lamb, who was a candidate for the seat of Moreton in the Federal election held on 10 November 2001. In Fletcher v Salvation Army Australia16, the President of the Civil and Administrative Tribunal (Morris J) summarily dismissed Mr Fletcher’s complaint of unlawful religious vilification under s 8 of the Racial and Religious Tolerance Act 2001 (Vic) which concerned the conduct of a religious course that was offered at a Victorian prison, known as the Alpha program.
CONCLUSION The “Racial and Religious Tolerance Act 2001 (Vic)” has created and received wide spread criticisms after its enactment from different belief groups. However anti vilification laws on religion have been successful in protecting some of the very basic rights of individuals as shown in the case of Goldberg. Often judges face a Constitutional conundrum of having to balance the right to freedom of speech against the right of an individual to freedom of religion. Often, what tips the scale between the two is the interest of justice in based on the peculiar facts of the case. There can be no denial that both constitutional rights are equally important and deserve protection from the courts.
14 Bill Muehlenberg, The Poison of Religious Vilification Laws (2009) Christian Today Australia Columnist <http://au.christiantoday.com/article/the-poison-of-religious-vilification-laws/7049.htm> at 4 September 2012.
15 Deen v Lamb (2001) QADT 20.
16 Fletcher v Salvation Army Australia (2005) VCAT 1523.
REFERENCES Keith Cormish, Racial and Religious Vilification (WA) (2004) Atheist Foundation of Australia Inc. <http://www.atheistfoundation.org.au/submissions/racial-and-religious-vilification-wa> at 4 September 2012.
Bill Muehlenberg, The Poison of Religious Vilification Laws (2009) Christian Today Australia Columnist <http://au.christiantoday.com/article/the-poison-of-religious-vilification-laws/7049.htm> at 4 September 2012.
Alan Chapman , “New Vilification Laws and Victorian and Queensland Work Relationships” (2002) 15 AJLL 277.
Mary Tibbey, “Developments in anti-vilification laws” (2001) 21 Aust Bar Rev, 204.
M Jones, “Empowering Victims of Racism by Outlawing Spirit-Murder” (1994) 1 Australian Jnl of Human Rights.
N Hennessy and P Smith, “Have We Got it Right? NSW Racial Vilification Laws Five Years On” (1994) 1 Australian Jnl of Human Rights. Racial and Religious Tolerance Act 2001 (Vic), s 1,4. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 196–7.
Waters v Public Transport Corporation (1991) 173 CLR 349, 406–7.
Krygger v Williams (1912) 15 CLR 366.
Goldberg v G Korsunski Carmel School (2000) EOC 93-074.
Deen v Lamb (2001) QADT 20.
Fletcher v Salvation Army Australia (2005) VCAT 1523.
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