The problems with vilification legislation

A raft of new legislation is being passed throughout the Western world. These laws are called by various names, such as vilification or tolerance or discrimination laws. Sometimes they are referred to as hate-crime legislation. Whatever their title, these laws are problematic for a number of reasons. While the intentions behind them may have been good (to reduce hatred and vilification) the outcomes have been far from ideal.

There are different types of vilification laws, based on a wide variety of issues, such as race, religion, gender, sexuality and ethnicity. They often come with stiff penalties if a person is found guilty. If the aim of these laws has been to reduce hatred, hostility and differences, it would appear the opposite has been the case. These laws have generated a number of worrying outcomes. I list here ten major shortcomings of this type of legislation.

The first problem with these sorts of laws is that they tend to confuse different issues. While some aspects of vilification legislation may be acceptable in one arena, they often are not in another. For example, one should not mistreat or discriminate against someone because of something they cannot help, such as their country of birth or their gender. But these laws are less helpful in other areas, such as in lifestyle choices or in religious beliefs. When a belief or behaviour is chosen, it is quite different from something that is intrinsic to a person and cannot be altered.

Therefore in Victorian law (the Racial and Religious Tolerance Act 2001 (pdf file 112KB)) we have the conflation and confusion of two quiet different issues: race and religion. Race cannot be helped. You are born into one race and remain a member of that race for the rest of your life. But religion is different. While most people at first follow the religious practices of their parents or community, when older, people will often accept or reject that religious upbringing. Religious conversion is a chief example of this.

There are a few rare exceptions, when both race and religion overlap, as among Jewish people. Jews can be described as both a race and a religious community. But some Muslims want to claim both race and religion for their faith, something which is clearly far-fetched. Similarly, some homosexuals argue that they are born that way, and can no more help being that way than can someone who is black-skinned, red-haired or left-handed.

But sexual preference is not at all akin to racial make-up. Increasingly however vilification laws are being passed which include sexual orientation. This is a very bad application of what may have been a good starting principle: that of preventing discrimination and hatred based on genuine unalterable characteristics.

As a result Victoria’s vilification legislation confuses two quite different issues, and muddies the waters from the very beginning. Fortunately two other Australian states, South Australia and Western Australia, have both recently dropped plans for religious vilification legislation. They have realised that while there might be a case for racial vilification laws, there is no rationale for religious vilification legislation.

The second difficulty with vilification laws is that they are usually broad, vague, nebulous and filled with ambiguous and unclear terminology. Consider the Victorian Act. It speaks of “severe contempt”, “revulsion” and “severe ridicule”. How exactly does one define such terms? What may amount to one person as severe ridicule may appear to another a bit of harmless fun. Such terms are far too subjective, arbitrary and loose to serve any useful role in a judicial setting.

Good legislation should always have not only clear terminology, but also clear aims and objects. A law is a bad law if one is never quite sure whether it applies to oneself or not. Such fuzziness in the legislation makes these laws particularly vulnerable to misuse and abuse.

Acting “reasonably and in good faith” is part of the exceptions in the Victorian legislation. Yet two Christian pastors, who thought they were acting in exactly this way, were told by a judge that they were not. So some official must now determine, with all the wisdom of Solomon, what is in good faith and what is not.

In fact, the very issue of acting in “good faith” seems to be thrown into doubt in the Victorian Act when it states that a “person’s motive in engaging in any conduct is irrelevant”! If motivation is irrelevant, then how can one begin to even speak about acting in good faith? Is that not a matter of motivation and intent?

The third drawback with these laws is that they are usually instigated by particular members of the community at the expense of the rest of society. In Victoria it was mainly certain Muslim and Jewish groups who pushed for the legislation. There was no general demand for the legislation. There was no groundswell of public support for such laws. Indeed, there was no deluge of hate cases or vilification accusations being made just prior to it. This was simply the work of several minority groups effectively seeking to silence other groups in society, and using the heavy hand of the law to do so.