Religious vilification: confused policy, unsound principle and unfortunate law

University of Queensland Law Journal, Dec, 2007 by Rex Tauati Ahdar

It is understandable that a society endorsing multiculturalism and emphasising religious tolerance would prefer religionists to moderate their claims and avoid exclusivist pronouncements that might cause offence to other religionists. But to require its citizens to forgo such claims in the name of tolerance is, I believe, to go too far.

B Divisiveness

Ironically, the very legislation designed to foster greater understanding and tolerance may become the vehicle to increase misunderstanding and friction. Patrick Parkinson explains:

   One of the dangers of vilification legislation is that it may be
   seen as a new means of pursuing a long-existing conflict before a
   neutral arbitrator ... the problem is that the legal system just
   becomes another theatre of conflict which it cannot possibly
   resolve, because the conflicts are political or religious. (32)

A complaint against one religious group may prompt retaliation by that group in tit-for-tat fashion. It seems that, in the aftermath of the Islamic Council's action against the Catch the Fire Ministries seminar, evangelical Christians were attending Islamic lectures for the purpose of gathering statements that might be used in evidence against Muslim speakers. (33)

C Unnecessary 'Gap' Filling

Speech that constitutes an incitement to engage in criminal acts is currently caught by the criminal law and public order offences. (34) Inflammatory words that fall short of amounting to a call to commit criminal acts but which, nonetheless, stir up hatred and contempt for a religious group are not caught. Is this a 'gap' that the law needs to plug? Again, this simply restates the whole question. Whilst speech that prompts violence to persons or property on the grounds of religion ought to be prohibited, is speech that simply contributes to a climate of hostility or hatred worthy of a legal ban? The House of Lords Select Committee on Religious Offences considered the gap between criminal incitement and permissible freedom of expression to be 'narrow'. (35) It thought that there was 'only a limited area in between which seems to deserve attention' which it identified as 'vilification of the foundations of a faith.' (36) It quickly added that 'this is a difficult area.' (37) It is not apparent why the 'foundations' of a religion are any more deserving of protection than peripheral or incidental beliefs or practices. Those who strongly criticise a religion are, moreover, most likely to want to attack core elements of that faith.

Another perceived gap is the uneven protection afforded by racial hatred law. (38) Incitement to racial hatred laws may be availed of by certain religions--those of a common ethnic core--but not by other religions, namely, those commonly comprising many racial or ethnic groups. (39) So it would be unlawful to incite hatred of Jews or Sikhs under racial vilification legislation, but not to incite hatred of Christians or Muslims, religions that are not a mono-ethnic group. Thus, enactment of a religious vilification law is necessary to protect the latter. The argument about uneven protection may be misconceived. As others have noted, (40) it is possible that the offence of incitement to racial hatred could be construed widely enough to catch hatred ostensibly targeted at broad religions such as Muslims, hatred that, in reality, is aimed at a racial grouping, such as Pakistanis or Sudanese or those of Arab ethnicity.