The Constitutional (In)Validity of Religious Vilification Laws: Implications for their Interpretation

Published date01 June 2006
Date01 June 2006
AuthorNicholas Aroney
Subject MatterArticle
In this article, I address the question whether religious vilification laws are contrary to
the implied freedom of political communication affirmed in the High Court's decision
in Lange v Australian Broadcasting Corporation.1 I will focus on three key issues. First,
can the implied freedom extend, in principle, to religious speech, meaning speech that
is motivated by religious belief as well as speech that simply deals with religion or
religious topics? Secondly, do religious vilification laws place a relevant burden upon
communication about political or governmental matters? Thirdly, are religious
vilification laws reasonably appropriate and adapted to achieving some legitimate
objective in a manner which is compatible with the constitutionally prescribed system
of representative government? The latter two questions derive directly from the test
formulated by the High Court in Lange for determining whether a law is contrary to
the implied freedom of political communication. The first question is concerned,
primarily, with the issue of whether s 116 of the Constitution, in prohibiting the
establishment of religion, renders religious speech irrelevant to federal politics and
therefore by definition beyond the scope of the implied freedom of political
Hate speech laws, including laws that make it illegal to vilify on various grounds,
such as race, religion and sexual orientation, have been enacted by the
Commonwealth, and by the six Australian States and the Australian Capital Territory.2
Each set of laws is different, and some of the differences are significant. Only Victoria,
Fellow, Centre for Public, International and Comparative Law, and Senior Lecturer in Law,
School of Law, The University of Queensland. I wish to thank Dan Meagher and the two
anonymous referees for their comments on an earlier version of this article.
1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ('Lange').
2 For a survey of Australian hate speech laws, see Jenni Whelan and Christine Fougere,
'Proscription of Hate Speech in Australia', in Gabriel Moens and Rodolphe Biffot (eds), The
Convergence of Legal Systems in the 21st Century: An Australian Approach (2002). See Racial
Discrimination Act 1975 (Cth) ss 18B–18F; Crimes Act 1914 (Cth) s 30A(3); Criminal Code Act
1995 (Cth) s 80.2(5); Anti-Discrimination Act 1977 (NSW) ss 20C–20D; Racial and Religious
Tolerance Act 2001 (Vic) s 8; Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Racial
Vilification Act 1996 (SA) ss 4, 6; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) ss
65–67; Criminal Code 1913 (WA) ss 76–80; Anti-Discrimination Act 1998 (Tas) ss 17, 19.
288 Federal Law Review Volume 34
Queensland and Tasmania, for example, have enacted religious vilification laws.3 The
question of the constitutionality of racial vilification laws has been addressed in a
number of cases4 and by numerous commentators.5 Religious vilification laws are
newer on the Australian scene, and have received much less scholarly attention.6
Moreover, compared to racial vilification laws,7 religious vilification laws raise distinct
issues, both as to their substantive merits,8 and in terms of their constitutionality.9
3 Racial and Religious Tolerance Act 2001 (Vic) s 8; Anti-Discrimination Act 1991 (Qld) ss 124A,
131A; Anti-Discrimination Act 1998 (Tas) ss 17, 19. See also the prohibition of racial
vilification in the Anti-Discrimination Act 1977 (NSW) s 20C, which, when read with s 4,
includes vilification on the ground of 'ethno-religious … origin', as well as the prohibition
in the Racial Discrimination Act 1975 (Cth) ss 18C–18D, which may also extend to acts done
because of a person's or group's 'ethno-religious' background: King-Ansell v Police [1979] 2
NZLR 531.
4 See, eg, Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] HREOCA 11
(Unreported, Commissioner Johnston, 21 June 1999) [4.3]; Walsh v Hanson (Unreported,
HREOC, Commissioner Nader, 2 March 2000); Hellenic Council of NSW v Apoleski [1997]
NSWEOT 9-11 (Unreported, Judicial Member Biddulph, Members Alt and Mooney, 25
September 1997); Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 (Unreported,
Hennessy DP, Members Farmer and Jowett, 22 June 2000) [93]–[97] ('Kazak'); Jones v Scully
(2002) 120 FCR 243, 304–6; Toben v Jones (2003) 129 FCR 515, 551–2.
5 Maurice Byers, 'Free Speech a Certain Casualty of Race Law', The Australian (Sydney), 21
November 1994, 11. Cf Kate Eastman, 'Drafting Vilification Laws: Legal and Policy Issues'
(1994) 1 Australian Journal of Human Rights 285; Tamsin Solomon, 'Problems in Drafting
Legislation Against Racist Activities' (1994) 1 Australian Journal of Human Rights 265; Anne
Flahvin, 'Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech
Principles?' (1995) 18 University of New South Wales Law Journal 327; Saku Akmeemana and
Melinda Jones, 'Fighting Racial Hatred', in Commonwealth Race Discrimination
Commissioner, The Racial Discrimination Act: A Review (1995) 156–62; Luke McNamara and
Tamsin Solomon, 'The Commonwealth Racial Hatred Act 1995: Achievement or
Disappointment?' (1996) 18 Adelaide Law Review 259, 278–83; Wojciech Sadurski, Freedom of
Speech and its Limits (1999) ch 6; Michael Chesterman, Freedom of Speech in Australian Law: A
Delicate Plant (2000) 238–43; Dan Meagher, 'What is "Political Communication"? The
Rationale and Scope of the Implied Freedom of Political Communication' (2004) 28
Melbourne University Law Review 438; Dan Meagher, 'The Protection of Political
Communication under the Australian Constitution' (2005) 28 University of New South Wales
Law Journal 30.
6 See Meagher, 'What is "Political Communication"?', above n 5, 460; Deen v Lamb [2001]
QADT 20 (Unreported, Commissioner Sofronoff, 8 November 2001) 5–7; Islamic Council of
Victoria v Catch the Fire Ministries Inc [2003] VCAT 1753 (Unreported, Higgins V-P, 21
October 2003) [8]–[17] ('Catch the Fire Ministries'); Fletcher v Salvation Army [2005] VCAT
1523 (Unreported, Morris P, 1 August 2005) [1], [4]–[10] ('Fletcher').
7 On which, see Wojciech Sadurski, 'Offending with Impunity: Racial Vilification and
Freedom of Speech' (1992) 14 Sydney Law Review 163; Kathleen Mahony, 'Hate Vilification
Legislation and Freedom of Expression: Where is the Balance?' (1994) 1 Australian Journal of
Human Rights 353; Luke McNamara, 'The Merits of Racial Hatred Laws: Beyond Free
Speech' (1995) 4 Griffith Law Review 29; Lawrence Maher, 'Free Speech and its Postmodern
Adversaries' (2001) 8(2) Murdoch University Electronic Journal of Law; Dan Meagher, 'So Far
So Good?: A Critical Evaluation of Racial Vilification Laws in Australia' (2004) 32 Federal
Law Review 225.
8 Patrick Parkinson, 'Enforcing Tolerance: Vilification Laws and Religious Freedom in
Australia' (Paper delivered at the Eleventh Annual International Law and Religion
2006 Religious Vilification Laws 289
The religious vilification laws of Victoria, Queensland and Tasmania are sufficiently
similar that the considerations relevant to their constitutionality are substantially the
same. The Racial and Religious Tolerance Act 2001 (Vic) may be taken as representative.
Section 8(1) of that Act provides:
A person must not, on the ground of the religious belief or activity of another person or
class of persons, engage in conduct that incites hatred against, serious contempt for, or
revulsion or severe ridicule of, that other person or class of persons.
Section 9 explains that:
(1) In determining whether a person has contravened section 7 or 8, the person's motive
in engaging in any conduct is irrelevant.
(2) In determining whether a person has contravened section 7 or 8, it is irrelevant
whether or not the race or religious belief or activity of another person or class of
persons is the only or dominant ground for the conduct, so long as it is a substantial
Section 11(1) then provides:
A person does not contravene section 7 or 8 if the person establishes that the person's
conduct was engaged in reasonably and in good faith —
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held, or any
other conduct engaged in, for —
(i) any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or matter of public
Symposium — Religion in the Public Square: Challenges and Opportunities, Provo, Utah,
3–6 October 2004); Steve Edwards, 'Do We Really Need Religious Vilification Laws?' (2005)
21 Policy 30; Amir Butler, 'Why I've Changed My Mind on Vilification Laws', The Age
(Melbourne), 4 June 2004. See also Reid Mortensen, 'Blasphemy in a Secular State: A
Pardonable Sin?' (1994) 17 University of New South Wales Law Journal 409. For a contrary
view, see Waleed Aly, 'Freedom to Inform, Not Inflame', The Herald-Sun (Melbourne), 21
December 2004.
9 For a contrary assumption, see the decision of the Canadian Supreme Court in R v Keegstra
[1990] 3 SCR 697. The case involved s 319(2) of the Criminal Code, RSC 1985, c C-46, which
prohibited the willful promotion of hatred, other than in private conversation, towards any
section of the public distinguished by colour, race, religion or ethnic origin. In upholding
the law as justified under s 1 of the Canadian Charter of Rights and Freedoms, the Court drew
no distinction between hate speech based on race and hate speech based on religion.
Notably, the case concerned hate speech directed against Jewish people, a group
identifiable on grounds of both ethnic and religious identity and thus did not raise the need
to distinguish between the two grounds. On hate speech in Canada, see also R v Zundel
[1992] 2 SCR 731. In this article, I shall restrict the discussion to the Australian case law. For
the position in the United States, see Chaplinsky v New Hampshire, 315 US 568 (1942);
Beauharnais v Illinois, 343 US 250 (1952); Brandenburg v Ohio, 396 US 444 (1969); Cohen v
California, 403 US 15 (1971); Gooding v Wilson, 405 US 518 (1971); Skokie v National Socialist
Party, 373 NE 2d 21 (1978); RAV v City of St Paul, 505 US 377 (1992); Virginia v Black, 538 US
343 (2003).

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