The Australian Human Rights Commission and religious freedom

[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

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

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.

The first was then Opposition leader Abbott's promise to repeal s 18C. The second was the rowdy religious demonstration on the streets of Sydney on 15 September 2012 when some demonstrators held aloft signs exhorting fellow Australians to decapitate persons who insult religion. This conspicuous display of religious hatred was aggravated by the depravity of the use of at least one very small child to spread the hatred.

The AHRC made a prolonged "end of the world is nigh" public fuss about the repeal of s 18C, and turned a blind eye to the incitement to religious homicide. The outermost extent of its hyperbole and intellectual slovenliness was manifested in the AHRC's claim that repeal of s 18C could be likened to taking the first step along the path to genocide.

Look before you leap

History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. . .

[I]f the quantity or even permitted nature of political discourse is identified by reference to what most, or most "right-thinking", members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right. . .

None of the reactions described – significant anger, significant resentment, outrage, disgust or hatred – constitutes a form of legally cognisable harm. Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them. More than that, the emotional responses described are universal human responses which are among the 'ordinary and inevitable incidents of life'. They can be provoked for any of a myriad of reasons, in well-nigh any circumstances. Experiencing responses of these kinds does not set the person concerned apart from any save the most sheltered or placid of human beings. Justice Hayne, Monis and Droudis v The Queen(2003)

The AHRC's response to the proposed repeal of s 18C displayed a failure to be guided by commonsense. The Abbott/Brandis promise was hollow. Not surprisingly, its sponsors declined to engage in any sustained public advocacy. It was, after all, the same Mr Abbott and Senator Brandis who in 2005 supported a great leap backwards by resuscitating the obsolescent law of seditious libel, the history of which was one of state suppression of political dissent.

The AHRC President's assertion at the Free Speech 2014 conference that the government had responded "to the overwhelming rejection of the proposed amendments by the Australian community" could be seen as hubris. It reflected the fact that the AHRC had been at the forefront of the powerful ad hoc pro-censorship alliance led by the ABC and Fairfax Media which opposed amendment of s 18C.

History and the not so Holy Grail

"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 . . . 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"

The prohibition in s 116 [of the Australian Constitution] operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion . . . [It] proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion." Chief Justice Latham, Adelaide Company of Jehovah's Witnesses Inc v Commonwealth(1943)

The AHRC genocide alert is a pointer to its all-pervading ahistorical approach to religious freedom in Australia as evidenced by the way it:

• Ignores the lessons of the resolution of Australia's experience with bitter (but, notably, non-violent) sectarian religious conflict without need for the imposition of a civil censorship apparatus of the s 18C kind which the AHRC administers;
• Ignores the obsolescence of the Christianity-specific common law of blasphemous libel; and,
• Affronts the wide-ranging concept of religious freedom protected by s 116 of the Constitution.

When s 116 is set alongside the absence of international law recognition of the constitutive national value of the separation of church and state, Australia's domestic standard of religious freedom is centuries ahead of international law norms and standards.

In truth, international human rights experience is a not so Holy receptacle for the "the inherent dignity and of the equal and inalienable rights of all members of the human family"; it is a fiercely contested political battleground.

In its report, Combating the Defamation of Religions(2008), to the UN High Commissioner for Human Rights, the then Human Rights and Equal Opportunity Commission expressedsome sympathy for the cause of an international standard for the medieval type of State censorship found in contemporary theocratic forms of government and promoted by the signatories to the Cairo Declaration (1990) which calls for an international convention outlawing blasphemy, an aspiration somewhat less extravagantly expressed in a recent UN General Assembly resolution.

One salient illustration of the defects of fine-sounding international human rights instruments concerns Article 18 of the ICCPR which conspicuously omits express mention of the individual's right to reject all religion and to say so out loud. Readers who are prepared to spend time navigating the AHRC web site will eventually discern that the AHRC contents itself with a passing feeble suggestion that such a right is implied in Article 18.

There are increasing indications in Australia and elsewhere that the criticism and ridiculing of religious ideas, beliefs and practices, and even to suggest that a religious belief is in need of modernisation, is to be deprecated.

No less a person than former Prime Minister Gillard, addressing the UN General Assembly in 2012 asserted, "Denigration of religious beliefs is never acceptable". Never? If this pronouncement were to be accepted, religious freedom in Australia would have been taken back to the pre-Reformation era.

Beware favouritism

A person who is convicted of a crime of any significance will be described as being disgraced. A person who encourages others to support attitudes repugnant to the Australian community or encourages violence against women, homosexuals or various ethnic groups and supports child suicide bombers and acts of terror or when given the opportunity fails to condemn these views would be similarly described. Justice McClellan, Trad v Harbour Radio Pty Ltd(2009)

In a world of competing one, true faiths and where democracy endeavours to co-exist with theocracy, and in which a fanatical religious war is being fought in the Middle East, the AHRC's plight in being trapped in the hate speech maze is made worse by treating religion as if it were an inherent human attribute when it is no more than a category of ideas and beliefs which, like any other ideas, offer themselves for acceptance or rejection (including ridicule).

The fact that religion so often comes to grip the adult mind because it has been drummed into the mind of the believer as an innocent child is further reason why the proposition that the substance of any religious belief (say, Catholic doctrine on transubstantiation) should command respect has no place in a free and open secular society.

The AHRC's case that s 18C has to be maintained to protect "vulnerable minorities" who are "marginalised", "demonised", "victimised" and/or "stigmatised" manages to combine florid rhetoric and the group libel that entire communities of believers lack the strength of their religious conviction. In the real world, witness the events in Sydney on 15 September 2012, there is ample evidence to the contrary. It is of a piece with the condescension of the Preamble to the Victorian Racial and Religious Tolerance Act 2001 which preaches that vilification of religious belief or activity of "some Victorians . . . diminishes their dignity, sense of self-worth and belonging to the community." Far from being well-served by the new sectarianism, the efforts to censor debate about religious ideas is an affront to religious freedom.