Religion laws don't have a prayer in a country with robust common sense
April 18, 2009
This week we have heard about an increasing international trend to prosecute religious issues in the courts.
In Britain cases are being brought under laws such as the Religious Hatred Act, which makes it a crime to "stir up" "religious hatred". British police have even warned that insulting Scientology would be treated as a crime.
Such legislation may soon be heading to a statute book near you.
The Australian Human Rights Commission is finalising a report almost certain to recommend legislation on religion - on freedom of religion or religious vilification - that would mean similar prosecutions being launched under national law.
Why do we need this? The last time Australians were asked whether they wanted freedom of religion embodied in the constitution was in 1988. Showing a robust common sense, they voted a resounding "no". It lost in every state and territory, with up to 74 per cent against.
Citizens knew in their bones that Australia was one of the freest countries in the world and that we wouldn't make ourselves freer by inventing new offences.
So why are we even having this debate? The commission says on its website it's because of "an increased presence of Muslims, Buddhists, Hindus, Jews and other religious communities".
This is an extraordinary statement; it undermines the need for any change in the law. If Australia were a nightmare realm of vilification and persecution, a dystopia of religious angst, I doubt that Muslims, Buddhists, Hindus and Jews would settle here in growing numbers. The growth of these communities is proof positive Australia enjoys freedom of religion.
Another reason nominated by the commission for its inquiry is "the shift away from mainstream Christianity, and the rise of Pentacostalism". To which I say, "So what?" Or, as the former US president Thomas Jefferson said when petitioned by a group of Methodists to stem the rising number of Baptists in newly minted America, "What business is it of government?" Why should this matter be even brought under the purview of a government-funded inquiry?
If you suspect someone's on a mission to agitate non-existent problems to find a bigger role for himself, contemplate another reason the commission gives for having this inquiry. It says it wants to assess the effect of Commonwealth and state laws on the "war on terror".
Leave aside the fact that the Howard government opted not to use the expression and the Rudd Government never has, anti-terrorism laws are neutral on religion. Planning to blow up a building or hijack a plane is guarded against, but the law is silent on the religion of those who might attempt it.
But Tom Calma, one of the commissioners, writes that the terrorism attacks of 9/11 have brought religion squarely back into public debate and it's important people not be "vilified or alienated because of these beliefs".
In fact, the Australian responses to September 11 and Bali were restrained, given the scale of the losses and the provocative hatred behind the attacks. Straight after September 11, I visited an Islamic school in western Sydney to make a plea for tolerance. Kerry Chikarovski, the then Opposition leader, rang me urging protection for Islamic women wearing the hijab. Peter Beattie attended a Brisbane mosque. John Howard met Islamic clerics. The same spirit prevailed after Bali.
Calma might ask himself whether a temporarily strained climate would have been improved by a raft of prosecutions for vilification.
Victoria has a religious vilification statute and in 2004 two evangelical pastors were prosecuted for remarks they made in a seminar about Islam. I don't respect the views of these pastors. The seminar was a fringe event for a fringe sect. Best to ignore it. Instead, the costly and drawn-out legal rigmarole gave Pastor Danny Nalliah the chance to spout in the courts about "Sharia by stealth". It cost more than $1 million in legal fees.
In 2004 I distributed reports of this outlandish case round the NSW cabinet table, saying to colleagues, "One day we'll hear an argument for this state having religious vilification … well, that legislation implies prosecution. And that could go anywhere."
Anticipating this objection, the Human Rights Commission hints it would only recommend civil penalties. This is bogus.
Say that under new laws an Islamic group opted to bring proceedings against a prominent evangelical Christian for comments about Islam. And suppose a court imposed a fine. What would happen if that person said he wouldn't pay the fine? Put him in jail? The result would be a wave of sympathy for the martyr and hostility against his persecutors - melodrama that did not exist while Nalliah's opinions were simply treated with benign neglect.
Retaliation would likely follow: militant Christians turning up at mosques with tape recorders to catch an imam "inciting hatred" against their faith, and an action by them in a tribunal or court.
Australia's treaty obligations oblige us to sign up for this brave new world of religious lawsuits, the commission is arguing. On these pages this week, Jonathan Turley noted that Saudi Arabia was a leading supporter of a new international ban on religious defamation. Well, if a failure to have domestic religious vilification laws means Australians being lectured on religious freedom by Saudi Arabia, I guess we'll have to bear it with equanimity.
Meanwhile, I stick with Jefferson, who said, "it does me no injury for my neighbour to say there are 20 gods or no god. It neither picks my pocket nor breaks my leg." After all, "Truth is great and will prevail if left to itself".
Bob Carr is a former premier of NSW.
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