Beware of cover for making censorship respectable

In a recent Sydney Morning Heraldop-ed piece, under the heading "Beware of cover for making bigotry respectable", the Commonwealth Race Discrimination Commissioner, Dr Tim Soutphommasane, declared:

Let's be clear about a few things. In a liberal democracy we should be free to have robust debates about culture, religion and belief.

However, the sombre "Let's be clear" announcement and the ostensible praise heaped on "robust debates" were accompanied by an objection to speech which conveys "abuse" or "vilification", and by the admonitions, "We may disagree, but we should do so with civility" and that we should not resort to "militant hostility" in speech about religion – whatever those various opaque qualifiers might mean. There then followed an unambiguous "tut-tut" mention of speech which is "scornful of" religious belief.

Not for the first time, the Commissioner has expressed a view about the role of free speech in Australia which:

• Conflates race and religious ideas, beliefs and practices;
• Rejects any categorical distinction between, on the one hand, controversial speech directed solely at religious beliefs and practices, and, on the other hand, speech which may be simultaneously directed at the relevant believers;
• Reveals a lack of appreciation of the secular nature of the Australian polity and ignores the nation's history.
• Contrary to his lofty declaration, the Commissioner's case is a transparent cover for suppressing "robust debates" about religious ideas, beliefs and practices.

A preliminary definitional question warrants a passing comment. The Commissioner does not offer a definition of "religion", but it is clear from his case that he is referring to the conventional concept of a system of beliefs said to have been revealed by a deity. This avoids the need to deal with the Serbonian bog of post-modern obscurantism which awaits anyoneendeavouring to make sense of what the Australian Human Rights Commission (AHRC), and others concerned about so-called militant secularism, define as religion.

A complex distinction?

The Commissioner asserts that the distinction between race and religion "is a complex one". In reality, it need not be. The Commissioner's resort to abstractions - "religious identity" and "religion can itself act as a racial marker" - adds nothing. In the context of debates about freedom of expression, the concept of religion (howsoever defined) is straightforward. It is no more than one category of ideas, beliefs and practices.

Unfortunately, in this earthly world of competing one, true faiths (more so, one in which theocratic forms of government survive), it is unsurprising that there is strong support for suppression of blasphemy, heresy, apostasy, sacrilege and other related forms of dissent.

Foremost among the many reasons why blasphemy and like laws,such as s 18C of theRacial Discrimination Act 1975 (Cth) have no place in a liberal democratic society, is the fact that religious beliefs are, more often than not, transmitted from one generation to the next by the drumming of dogmatic beliefs into the minds of innocent children. This is calculated to condition children not to think for themselves. As adults, they should be equipped to decide whether what is said by earthly authorities to be the revealed truth of a deity, should be accepted or rejected. The right of parents to inculcate religious beliefs in their children does not bind third parties to respect the content of such beliefs. A powerful enough logical case on the merits of "revealed" religious truth should not have to be indoctrinated.

The gist of the Commissioner's case is that "religion"and "faith" cannot be publicly discussed or debated by Australians in terms which religious believers who, adventitiously, share a racial or ethnic connection, might regard – borrowing the language of s 18C – as "offensive, insulting, humiliating or intimidating". Nor, contends the Commissioner, can such beliefs or practices be criticised in terms which that select group of religious believers might regard as "uncivil" or "militantly hostile", or as amounting to "vilification" or "bullying" (yet another standardless abstraction).

According to the Commissioner, in contemporary Australia statements are being made about religion which are ill-disguised expressions of racial prejudice and bigotry. This is doubtless true. However, the Commissioner cannot bring himself to acknowledge that this need not be the case.

Nor, as has been customary with statements made by members of the AHRC (and its statutory predecessor in title), comparable State agencies, other statutory agencies and private institutions with multicultural responsibilities, is there any acknowledgement that a liberal democracy, by definition, tolerates dissent. Readers can test this assertion by an on-line search of the literature authored or approved by the AHRC. It reveals an uninterrupted record of paying lip service to the importance of free speech and of ignoring the integral role of individual dissent.

Part of the price paid for maximising individual freedom of expression is that there will be heated disagreement and – heresy of heresies – bigotry, vulgar abuse and public displays of exhibitionist prejudice. It would, of course, be nice if a latter-day Dr Pangloss could rid public debate and controversy of those and other nasty forms of human behaviour. But, in the case of religion, one person's divinely-revealed truth – say, in the claims that abortion is murder or that homosexuality is evil or that women and men are not, and are not to be treated as, equals – will be denounced by another person as disgusting bigotry.

Especially if you want to censor affronts to religion, the connection between race and religion can be as complex or confected as you want it to appear to be.

Despise the belief AND love the believer

If the Commissioner accepts that, in any given case, criticism of a religious idea, belief or practice may or may not, simultaneously, convey a statement (of approval or disapproval) about persons or groups who adhere to such ideas, beliefs or practices, he ought to have said so.

It is an inherent democratic right of the individual to express the opinion that a particular religious dogma or practice (or the concept of religion itself) is despicable or fanciful. This assertion also can be easily tested.

If a person gives voice to the opinion that the Catholic Church's teaching on transubstantiation or the virgin birth or the divinity of Christ is nonsense on stilts, does the Commissioner consider that the speaker can thereby, automatically, be taken to have abused or vilified all the nation's Catholics, or that all Catholics are so lacking in normal human fortitude that they cannot cope with the fact that their most cherished religious beliefs are openly ridiculed?

Australia's earlier history of the resolution of bitter, nay "militant", sectarian hostility is but one specific indicator of the nation's social cohesion, educational attainment, economic participation, and civic integration. And it is that continuing history, with the exception of the present willingness of a very small number of individuals who resort to violent displays of religious hatred, which accounts for the outstanding achievements of the successive peaceful national multicultural adaptations. The nation is thus adequately equipped to accommodate hurt religious feelings without the need for selectively penalising offensive "robust debaters".

The critical categorical distinction between statements about belief and statements about believers is a matter of common sense. However, the content and tone of the Commissioner's article gives rise to an irresistible inference that he rejects the distinction which, as recently as 2006, a judge of a State Court of Appeal put succinctly as follows: "And there are any number of persons who may despise each other's faiths and yet bear each other no ill will."

And, it is worth noting in passing that the law of defamation promotes the use of "scorn" to advance the paramount public interest in the dissemination of truth.

Freedom of (AND FROM) religion

The Commissioner states that there is a basic value that we should affirm – "Every person should be free to live their lives, without being harassed or intimidated because of their religion – or because of what they look like" Expressed in such loose terms – (what, precisely, does "because of" mean?) – who would/could disagree? However, in contemporary Australia, it is a glaringly incomplete statement of aspiration; it should have added to it the words, "or lack of religion".

If the Commissioner is to be understood as suggesting that a person who complains of "harassment" or "intimidation" simply "because" an attack is made on a religious idea, belief or practice should have a legal right to be protected from affronts to a deeply held religious belief, then he misconceives the nature of freedom of religion in Australia. (So as to avoid misunderstanding, I am not referring to "hostile speech conduct" amounting to actual unlawful discrimination that occurs in employment or in the provision of goods or services or accommodation.)

In the 1943 High Court of Australia case, Adelaide Company of Jehovah's Witnesses Inc v Commonwealth, in considering the nature and extent of the protection which is given to religion under s 116 of the Australian Constitution, Chief Justice Latham observed:

"It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance. What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. At all times there are many who agree with the reflective comment of the Roman poet-"Tantum religio potuit suadere malorum"" (which might be roughly translated as,"The practice of religion leads people to practise evil").

Chief Justice Latham went on to observe that s 116 "proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion".

The absence of any warrant for penalising persons who denigrate religious ideas, beliefs or practices is matched by a reciprocal entitlement of religious believers to display (non-violent) "militant hostility" toward the absence of such belief or "militant secularism". The numerous comments on the Commissioner's op-ed piece in the online SMH demonstrate that believers and non-believers alike can dish out scorn, vilification and militant hostility aplenty. This is as it should be in a free and open society.