Beware of cover for making censorship respectable

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.