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The Australian Human Rights Commission and religious freedom

By Laurence Maher - posted Monday, 1 June 2015


[T]here are any number of persons who may despise each other's faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot's perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions. Justice Nettle, Catch the Fire Ministries Inc v Islamic Council of Victoria Inc(2006)

Beware ideology

On 7 August 2014 at a conference entitled Free Speech 2014 presented by the Australian Human Rights Commission (AHRC), the AHRC President (Emeritus Professor

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Gillian Triggs) welcomed the decision announced two days earlier by Prime Minister Abbott that his government had decided not to proceed with its proposal to amend s 18C of the RacialDiscrimination Act 1975 (RDA).

In opposing amendment of s 18C, the AHRC had been confronted by a stark contradiction in the recondite postmodern diversity/identity dogma that underpins the suppression of what is caught by that impenetrable abstraction, "hate speech". In the real world - humankind being what it is - some "vulnerable minorities" discriminate against and display visceral hatred of other such "minorities".

For example, in varying ways and to varying degrees, each of the religions of the People of the Book, treats women as inferior to men, and homosexuality is at best tolerated as a ghastly perversion or at worst literally condemned as a deadly sin.

The AHRC relies on the fact that s 18C is concerned with race and ethnicity, not religion. Simultaneously, it openly states that it is troubled by the fact that some people resort to a distinction between race and religion. Which is it to be?

The AHRC's pro-s18C campaign included express and implied references to religion. By conflating race and religion, it was able to characterise criticism of selective religious ideas as racism. This incoherent rhetorical device was compounded by the folly of the publicly-financed sectarianism which it bespeaks.

Impossible dream

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The presence of religion in terrorist motivations also adds in most cases the weight of monotheism, a shared attribute of Judaism, Christianity and Islam. Sharing that attribute has not historically linked the People of the Book in close friendship. Such tolerance as monotheism permits is toleration, after all, of others who are held to be wrong. None of this helps to prevent social distrust or hostility when different ethnic and cultural groups travel or migrate, including in settler societies such as Australia. The success of multiculturalism cannot conceal this problem. Mr Bret Walker SC, Independent National Security Legislation Monitor, First Annual Report (2011)

When the Commonwealth Parliament passed the original Australian Human Rights CommissionAct1986 (AHRC Act) its expectations were misplaced. The new agency could be an administrative complaints resolution body or it could have public inquiry functions (perhaps both), or it could undertake the role of advocating for human rights – but not all three. That the third function conferred on the AHRC is highly controversial – especially regarding religious freedom – is evidenced in the legal (and ideological) fiction embodied in the AHRC Act that human rights protection in Australia is primarily the province of domestic statutory implementation of post-World War 2 international law and practice embodied in the International Convention on Civil and Political Rights (ICCPR) and other Conventions and Declarations.

The risk that the AHRC would succumb to zealotry in its quest to stamp out the mysterious menace of "hate speech" crystallized in the aftermath of two controversial events in 2012.

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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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