Centre for Christian Ethics Eastwood 2122 OCCASIONAL PAPER 05 Education not legislation: A critique of the Breen Bill 9 MAY 2005 Re: Anti-Discrimination Amendment (Religious Tolerance) Bill 2005 NSW MLC Peter Breen has introduced the Anti-Discrimination Amendment (Religious Tolerance) Bill 2005 to the NSW Parliament. Its provisions are arguably counter-productive and there are better ways to combat religious vilification in Australia. NSW already has effective anti-discrimination and defamation legislation. At the heart of the matter is the substantive difference between religious identity and other cultural identities such as race, gender and sexuality, and the view that the state must proceed with caution in legislating on religious matters. 1. The context The Bill is being introduced by the Hon Peter J. Breen MLC,[1] a human rights lawyer from Lismore who entered the NSW Legislative Council in 1999 under the banner of the Reform the Legal System party. In 1999 he said that his party's constitution meant he would vote for government legislation except where it contravened basic human rights obligations. He has written books on the legal system, promotes a policy of multiculturalism with an apparent emphasis on Muslim integration, and has campaigned strongly for an Australian Bill of Rights. Prior to the March 2003 election, as leader of his party, Breen endorsed Ahmed Sokarno as a candidate for the Legislative Council, an action which drew high praise from Sheikh al-Hilali, the Mufti of Australia associated with Sydney's Lakemba mosque.[2] The Bill is a Private Members Bill intended "to promote religious tolerance; and for other purposes." It inserts a proposed Part 4H in the Anti-Discrimination Act 1977. It deals specifically with religious vilification, declaring it unlawful and creating a criminal offence of "serious religious vilification" with a maximum penalty of 50 penalty units or six months imprisonment or both in the case of an individual, and 100 penalty units in the case of a corporation. Complaints are to be lodged with the Anti-Discrimination Board which may refer the complaint to the Administrative Decisions Tribunal. The Tribunal may dismiss the complaint, award damages of up to $40,000, enjoin the respondent from continuing or repeating such unlawful conduct, or require the respondent to publish an apology. 2. Critique of the Bill There are three main sections to the schedule of amendments in the proposed Bill. Section 49ZZA defines "public act" and "religious belief or activity." Two points deserve comment here. First, this section only implicitly excludes private conduct, whereas similar Victorian legislation enacted in 2001 specifically provides exemptions for private conduct in a separate section. For example, a "public act" may be taken to include the public distribution of an ostensibly private email text or image, such as on an internet website or newsgroup. Is the public reporting of a private act of apparent religious vilification merely reporting, or may it also constitute an act of vilification? Second, the Bill defines a "public act" as "any conduct . observable by the public," which appears to be unnecessarily broad in its scope. Virtually all human conduct is observable by others. Third, the Bill defines "religious belief or activity" as including "not holding a religious belief or view" (and similarly for engaging in religious activity). While some religious persons may view this provision as an instance of pedantic political correctness, I believe it appropriately recognises the rights of persons to not hold religious beliefs or views, and acknowledges that such persons may be subject to religious vilification as defined in this Bill. Section 49ZZB defines "religious vilification" as unlawful and notes three lawful exceptions to it. Subsection (1) states that "It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the religious belief or activity of the person or members of the group." Such strong, qualified, emotive language is ambiguous and its meaning can easily be disputed. For example, in response to a widely distributed article I wrote on the death of Pope John Paul II, a public figure wrote to me in his official role, alleging among other things that those who identified as Roman Catholics had "blood on their hands" from hundreds of years of religious persecution, and that they were not part of the "believing Australian church." If the writer had expressed these sentiments publicly, would he or she have been inciting hatred toward Roman Catholic persons? Was he expressing contempt, or serious contempt? Was she inciting ridicule, or severe ridicule? In my opinion subjective value judgments on issues of religious truth, required by the Bill, ought not to be dispensed by an apparently impartial and secular judge. Subsection (2) outlines exemptions to the unlawful act of religious vilification. Exemptions apply to a "fair report" of a public act of religious vilification; to communication of a matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 (relating to defamation); and to "a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate and expositions of any act or matter." Two points are worth noting. First, as the recent case against Catch the Fire Ministries and the two pastors in Victoria exemplifies, it may be difficult to identify what constitutes a public act of a religious nature "done reasonably and in good faith." This may be due to the conflicting religious worldviews of complainant and respondent, or to the mutually exclusive nature of their specific religious beliefs, or to their legitimate but conflicting interpretation of religious scriptures, or for other reasons. Reason, in the Enlightenment sense of the term, is not the sole arbiter of religious truth claims. Second, the Breen Bill mirrors parallel Victorian legislation that deals with exceptions, but deletes "religious . purpose" and adds "research purposes." Arguably, this renders the NSW legislation more extreme in its intent than its Victorian counterpart. It effectively rules out exemption from a conviction of unlawful religious vilification on the basis of a public act, done reasonably and in good faith, for religious purposes. This may appear pedantic and irrelevant, except for the fact that an equivalent public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes is by definition exempt. For example, it would apparently be lawful for an artist to immerse a crucifix in a jar of pig urine and publicly display it, or for a scientist to express serious contempt for, or ridicule of, Christians who assert that God created the universe in seven literal days; but it would apparently be unlawful for a minister of religion to call on parishioners to oppose atheists on the ground that atheism is an irrational and irresponsible belief system, or to assert that practicing wiccans are evil persons destined for eternal punishment. Section 49ZZC further defines "religious vilification" to include threats of physical harm and incitement to threaten physical harm, and provides maximum penalties as noted above. Further, it provides that "a person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution." I find nothing in this or subsequent sections to be potentially disturbing to persons of religious belief. 3. Other observations First, in seeking to legislate for religious tolerance the Breen Bill offers an inappropriate means to combat religious vilification. Elsewhere I have suggested that Victoria's Racial and Religious Tolerance Act 2001 is undemocratic and a threat to religious freedom of speech.[3] I regard the Breen Bill in the same light. While it attempts to promote religious tolerance in a multicultural society, it actually threatens freedom of speech on religious issues. We have seen this already in Victoria, as Christians, Muslims and others refrain from addressing public gatherings for fear of the repercussions if they are seen to have vilified persons of another faith. This will perpetuate falsehood and ignorance, and exacerbate the substantive and apparent differences between religious groups that the Bill appears to seek to ameliorate. Further, legislation of this kind may increase hostility between mutually incompatible religious traditions (such as orthodox Muslims and fundamentalist Christians), and suppress open discussion and debate, potentially fostering mutual suspicion, hatred, contempt and ridicule. Does Peter Breen really want to push religious extremists underground, and contribute to the growth of a culture of fear and suspicion in Australia? I think not. The solution the carrot, not the stick (for legislators), and better education (for all). In relation to better education, the January 2005 issue of the Lawyers' Christian Fellowship Newsletter suggests a number of lessons to be learned by Christians from the findings of Judge Higgins in the case of Islamic Council of Victoria v Catch the Fire Ministries. Below is a summary of the key points: 1. Be careful to use a widely approved translation of the scriptures of the religion being critiqued. 2. Acknowledge the diversity of belief within the religion being critiqued. 3. Take care when dealing with doctrines that have the potential to cause fear or apprehension in your audience. 4. When quoting scriptures try to avoid taking verses out of context, and if a proper understanding of a doctrine or concept requires the inclusion of the preceding or subsequent verses then these should be included. 5. Be careful how you present the seminar, and in particular how you use humour. 6. Be consistent (e.g. your claim that "God loves Muslims and wants to reach out to them" must be consistent with the way you present your understanding of Islam). 7. Be aware of the cumulative effect of statements being made. 8. Stick to the advertised topic. 9. Where an event is open to the general public, consider inviting a representative from the other religion to put their view. 10. Where an event is open to the general public, try to include speakers who are accepted by the general community (including the community of the other religion) as having expertise in the religion being discussed. Second, NSW already has effective anti-discrimination and defamation legislation and I question the need for this amendment specifically dealing with religious vilification. Mr Breen is a passionate defender of human rights, but has not to my knowledge identified any examples of religious vilification in NSW that warrant judicial punishment, nor any that do not fall within the provisions of existing legislation. If our society has travelled well for many years without the need for specific legislation on religious vilification, what has changed to render such legislation now necessary? The current laws are clearly adequate. Third, there is a substantive difference between religious identity and other cultural identities such as race, gender and sexuality. There is no 'true' or 'false' race, gender or sexuality, only different characteristics or identities. In matters of religion, however, affirmations or assertions of absolute claims to 'truth' and 'error' are often germane to the religious identity of a person or a group of persons. In addition, most major religious traditions articulate core doctrines that are incompatible with the teachings of other faiths, and promulgation of these doctrines is often considered normative. Religious identity may or may not be a matter of personal choice, but it involves the holding of subjective beliefs and opinions, and often the propagation of such beliefs and opinions, which may offend persons of another religious identity, and which may appear extreme to other reasonable persons. Legislation that denies a person the right to practice their faith in good conscience is bad law. Fourth, on the basis of the points raised above, the state must proceed with caution in legislating on religious matters. Christianity and other religious traditions have peacefully coexisted for more than two centuries in Australia. Robust debate and passionate disagreement have frequently characterised this coexistence, especially in recent decades. State protection of human rights, such as freedom of religion and freedom of speech, has done much to foster this. Yet, as Terry Lane observed recently, "the state has as much interest in [disputes over religious vilification] as it has in an argument between Collingwood and Carlton fans over the merits of their teams."[4] Let the 'teams' continue to vigorously argue their positions, as they have always done, and truth will emerge the winner. We do not want to see religious hatred go unchecked. We do not want to create a society where religious beliefs and practices are vilified. Each of us is responsible to conduct ourselves with decorum and decency. But nor do we want our liberal democracy or our religious conscience to be muzzled. The solution is better education, not more legislation. Religious vilification legislation is state censorship by another name. Rev Rod Benson Director, Centre for Christian Ethics, Morling College and Secretary, Social Issues Committee, Baptist Churches of NSW & ACT Email: RodBenson[at]morling.edu.au -------------------------------------------------------------------------------- [1] Ph. 02 9230 2883; fax 02 9230 3568; email [2] See http://www.abc.net.au/rn/talks/8.30/relrpt/stories/s773095.htm, 29 January 2003. [3] See http://jmm.aaa.net.au/articles/14138.htm, 17 December 2004. [4] Terry Lane, "Shouting out for freedom of speech," The Age, 2 January 2005.
top of page