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The religious freedom Trojan horse

By Augusto Zimmermann - posted Wednesday, 7 August 2019

There is a considerable risk that the Morrison government might be contemplating the enactment of discrimination laws that could ban so-called 'hate speech' on the basis of severe criticism of religion. The Prime Minister has been reportedly urged by Islamic groups and leadership, including the Grand Mufti of Australia, to extend to religious grounds the existing sanctions against those who might offend others on the basis of race, gender, age, or disability.

I humbly suggest that, rather than expanding the scope of discrimination laws to cover the strong criticism of religion, Australians should remain legally allowed to discuss matters of religion, particularly when this is tied up with political perspectives that encompass communicating matters of undeniable public interest.

My opinion is based upon the view of the Australian High Court as stated in several of its landmark decisions. Overall, these decisions inform that our democratic system of government requires every citizen in this country to be entitled to communicate in a free and open manner about matters of political nature, including when these matters may be intertwined with a more critical analysis or scrutiny of certain religious beliefs and practices.


The implied freedom of political communication is a constitutional principle introduced by the High Court in the early 1990s. This important freedom effectively prevents the government from disproportionately restricting freedom of speech. Based primarily upon the view that the system of representative and responsible government was established by the Commonwealth Constitution, the implied freedom requires that the people and their representatives must be able to communicate in a free and open manner about political matters.

The provision derived from Section 18C of the Racial Discrimination Act is particularly unconstitutional because it is not supported by the external affairs power in s 51(xxix) of the Commonwealth Constitution, with such provision reaching well beyond the intended scope of the International Convention on the Elimination of All Forms of Racial Discrimination. For instance, international law does not recognise the right not to be offended. The second is that s 18C impermissibly infringes upon the freedom of communication about government and political matters implied from the Commonwealth Constitution.

Now it is the freedom to politically communicate on religious matters that is further at risk. The Grand Mufti of Australia, Dr Ibrahim Abu Mohamed, has notoriously called on the Prime Minister to push for new laws to greater protect Muslims against so-called "Islamophobia"; that is, the strong criticism of the Islamic religion.

This is confirmed by a leaked video of the Prime Minister meeting with Dr Mohamed and other Islamic leaders at Lakemba Mosque. The video shows Scott Morrison being warmly welcomed by the Muslim leadership and urged by them to extend notorious Section 18C to religious grounds. At the same meeting, the Muslim Association Director, Ahmad Malas, demanded the Prime Minister to review all the federal laws so as to address 'the need for the Government to take responsibility at stamping out the ideology of white supremacy'.

The Australian Grand Mufti notoriously states that Section 18C should be amended so as to allow Muslims to receive the same level of legal protection afforded to ethnic groups. Just to remind, this is the same leader who has criticised a secular judge (Justice Fagan of the NSW Supreme Court) for daring to ask why these leaders often fail to disavow the "belligerent" verses of the Koran, thus weakening the convictions of Islamic terrorists.

Justice Fagan made a fair comment, particularly with regards to the apparent reliance on Koranic verses to support a duty of religious violence as fact that has been testified in a number of cases across Australia. If the verses upon which terrorists rely are not the binding commands of the god of Islam, then, Justice Fagan concluded, 'it is Muslims who would have to say so'.


The opinion of this secular judge was met with profound indignation by the Grand Mufti of Australia. Dr Mohammed was adamant that Koranic verses can never be criticised by whoever the person might be, including the verses in the Koran that promote anti-Semitism and religious violence. 'This will never happen', he said, before accusing that judge of being utterly 'uninformed' about the real teachings of the Koran: 'You don't ask to disavow medicine if some doctors exploit it, you don't ask to disavow law if some judge misuse it', Dr Mohammed said.

In the exercise of his role as the country's primary Muslim leader, Dr Mohammed has met several times with our Prime Minister. Dr Mohammed recently visited him in order to request 'the introduction of new laws which would make it an offence to discriminate against Muslims'. Dr Mohammed took the opportunity to issue the following warning to the Prime Minister: 'We are waiting for the response of the two big parties, the prime minister and the opposition leader … and we know that hate and racism are incidental viruses to [Australia's] society. Everyone, Muslim or non-Muslims, no matter what colour they are, we are all guests on Aboriginal land'.

One cannot hide the irony that, in their attempt to prevent themselves from ever feeling offended, such Muslim leaders have no qualms in deeply offending the country's majority ethnic group in Australia. Having arrived in our democratic country, many such Muslims escaping from remarkably oppressive theocratic regimes start to develop a visceral hatred for the ethnic majority that have so generously received them in our tolerant society, and not so often as refugees from their native Islamic nations.

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This article was first published in The Spectator.

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About the Author

Augusto Zimmermann, LLB, LLM, PhD is a Lecturer in Law at Murdoch University, Western Australia.

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