Constitutionality of Religious Anti-Vilification Laws in Australia - Essay Example

The Constitutionality of Religious Anti-Vilification Laws in Australia Institution Assignment Date Introduction The rationale behind the religious vilification laws is to enhance more harmony and tolerance among different religious groups. What is more, it is worth noting that the freedoms of speech and religion are highly entrenched in the Australian constitution. However, looking at some of the religious vilification laws in terms of their outcome, they are conceptually unconstitutional or unsound and, in most case, yields results that are antithetical. The laws have become a permanent vehicle for some religious extremists who use them to silence some debates by making claims of being attached. Therefore, this research focuses on the constitutionality of religious anti-vilification laws in Australia by examining not only the cases but also an in-depth analysis of the constitutional law. Further, this research will critically analyze religious anti-vilification laws as enacted in Australia. Constitutional Provision According to Collins and Karen1 one of the main concerns of Australia has been to formulate laws that are anti-incitement on the basis of religion. Although the country does not have a federal legislation aimed at disallowing religious vilification across its three states2 -Tasmania, Victoria and Queensland, the individual states have enacted legislations that are, substantially similar in preview of their consideration for religious vilification. These laws outline that no individual should publicly act in a manner that will cause hatred towards, severely ridicule another individual or group of individuals, or even show serious contempt for another person or group on the basis of religion. These constitutional provisions go ahead to assert circumstances under which such acts would be considered legal. For instance, for the acts to be considered legal, they must be done reasonably, in public, and in good faith, either for artistic, academic, scientific, publication of research purposes. This research considers the Racial & Religious Tolerance Act(RRTA) 2001 as one of the constitutional fundamental laws that is aimed at prohibiting any instant that is religious vilification. According to RRTA, any persons is allowed to file a complaint about religious vilification and burden of proof will rest on the person who is charged rather than the person who has claimed to be offended .3 In fact, this becomes the basis of a fundamental breach of the rule-of-law which holds that an individual is only innocent till proven guilty. Under the Victoria Act, anybody charged with vilification has to bear all legal costs whereas those who come with the charges against them are fully supported by the state at the taxpayer’ expense. In other words, despite the constitutional allowing freedom of expression and freedom of religion, deformation or incitement on grounds of what a person or group of person worship is considered an infringement of the law. In other words, the laws recognize such freedoms only to the extent that they do not cause incitements. For example, it would be illegal for religious extremist to incite people into war or terrorism. Laws to do with religious tolerance in Australia aim at encouraging harmony among different faiths, rather than, dividing people along religious lines. Due to some terrorists’ attacks and the discovery of some hate literature in some Australian Islamic bookstores, it arguably becomes sound to come up with some anti-religious vilification laws so as to deal with extreme religious teachings. In Tasmania, Victoria and Queensland, religious vilification is constitutionally illegal. For example, the Anti-Discrimination boards established in Tasmania, Queensland and Victoria ensure the protection of its community against any vilification on the basis of religion. That is why, when David Oldfield came up with a website that constituted Muslim hate speech in Victoria, he was ordered to shut it down immediately. The Case Involving Two Victorian Pastors Besides the fact that laws relating to religious vilification are meant to penalize individuals who are out to offend others based on beliefs, in actual practice, they result in social conflict and even strife across religions. The case of Islamic Council of Victoria4 presents one of the most forceful arguments against the vilification laws. According to this case, some three Muslims decided to attend one of the seminars that was carried out by the evangelical Christians. The subject of the seminar was Islam by one of the Muslim employee who worked at Victorian Government. Although this seminar was meant for only Christians, these three Muslims were also in attendance. However, it unfolded that some words that were articulated in the seminar irritated them and they captured some of the events that were very upsetting towards them. In December 2004, one of the judges, Michael Higgins, who was presiding over at the tribunal, found Pastor Danny Nalliah and Daniel Scot guilty of inciting some religious offensiveness towards the Muslims. The witnesses who were cross –examined were found to be reliable and even thought the three attendees who were offended by the comments the Pastors made about the Koran confessed to have slight knowledge about the Koran, this was regarded as immaterial in overturning the charges against them. In 2005, a penalty was announced and Judge Higgins ordered that the defendants vilified the Muslims and had to make apologies in public through the leading newspaper and their website at an overall cost of $70,000. The advertisements were supposed to reach over 2.5 millions as opposed to the 250 people that attended the seminar. After appeal in 2006, the prior judgment was found to have a lot of errors and finally, the cases was resolved by way of mediation involving the two parties without necessarily having any hearing. This ended the litigation process which had lasted for five years. Freedom of Religion and the Constitution Another reasonable concern about vilification laws is that some religious groups can utilize the anti-incitement mechanisms in order to secure some immunity for their actions and to defend themselves against scrutiny about their practices and beliefs5. However, in preview of the constitution, the freedoms and rights of individuals should not be undermined as a result of the inflated and insensitive nature of some religious groups. What individuals believe can directly influence what the person becomes, and so does it affect the society6. Culture on the other hand expresses our beliefs or societal values that greatly depend on peoples’ religious beliefs. Therefore, if law is that structural framework that holds the entire society together, then any law should be based on views that can positively influence education, government, economics and other pillars in the society. Further, the interpretation of freedom of expression should not mean abusing, defaming or inciting others under the shield of exercising freedom. As a result of the underpinning in the postmodern theories, religious vilification laws such as the RRTA appear to support the incredible idea of equivalent morals among all the religions so that no single religious belief is severely repudiated or strongly criticized7. The different religions in Australia have got different values and that also leads to different societies. Therefore, if any extremist were to take advantage of their religious division and apply the notion of Freedom of Religion without a limit, the person would easily walk out of order and law, if the speech was out to defame other religions. Although the primary alleged objectives of all religious vilification laws is to support or enhance harmony and tolerance in the society, the laws have stressed on separation and victimization among different groups. In most cases, they have resulted in inter-religious incitements, tensions among the communities, strife, and criminalization for telling the truth and even restricted freedom of speech. In broader terms, these laws have made it criminal to voice any comment that is deemed offensive to any religious group, and hence, these laws constitute laws that collaterally attack the freedom of expression. This has made several people in Australia fearful or reluctant to join any public conversations with regard to morality. Conclusion The freedoms of speech and religion are two fundamental rights that both intersect and at times crash when the Australian legislations prohibit vilification of groups on account of their religious practices. Therefore, the different anti-vilification laws in Australia are addressed herein by comparing the laws that were established as action for defamation and the religious vilification laws. The constitution upholds the freedom of speech and freedom of expression. The law on defamation and other laws, however, prohibit defaming other religions on account of religious vilification. Works Cited Anti-Discrimination Act 1998 (Tas.) (Austl.) and Anti-Discrimination Amendment Act 2001 (Qld) (Austl.) Bloul, Rachel A. D. "Anti-discrimination Laws, Islamophobia, and Ethnicization of Muslim Identities in Europe and Australia." Journal of Muslim Minority Affairs. 28.1 (2008): 7-25. Print. Catch the Fire Ministries v Islamic Council of Victoria [2004] VCAT 2510(Austl.), retrieved from http://www.austlii.edu.au/au/cases/vic/VCAT/2004/2510.html . Collins, Kelly-Anne, and Karen Sampford. Laws against Inciting Racial or Religious Vilification in Queensland and Australia: The Anti-Discrimination Amendment Bill 2001. Brisbane: Queensland Parliamentary Library, Publications and Resources Section, 2001. Print. Hosen, Nadirsyah, and Richard Mohr. Law and Religion in Public Life: The Contemporary Debate. New York: Routledge, 2011. Internet resource. Poynting, Scott, and Victoria Mason. ""tolerance, Freedom, Justice and Peace"?: Britain, Australia and Anti-Muslim Racism Since 11 September 2001." Journal of Intercultural Studies. 27.4 (2006): 365-391. Print. Racial and Religious Tolerance Act(2001) (Vic) n. 1 (Austl. ), retrieved from http://www.austlii.edu.au/au/legis/vic/consol_act/rarta2001265/s31.htm. Read More