Why s18C should be extended to cover religion

Sections 18C and 18D of the Racial Discrimination Act are back in the public debate. 18C makes it unlawful for a person to do something which would be reasonably likely to offend, insult, humiliate, or intimidate somebody on the grounds of race, colour, nationality, or ethnicity. It’s partnered with 18D which provides exemptions from 18C if the act is done reasonably and in good faith for purposes including art, science, or just contribution to public debate. The two sections work together harmoniously: if I want to disrupt your enjoyment of living in the greatest country on Earth on the grounds that you’re a different race, I need to have a good reason for doing so. You should not have to tolerate unreasonable attacks because racists exist in the world.

Early 2014 was dominated with discussion about the Racial Discrimination Act until the Abbott government dumped amendment proposals for the sake of preserving “national unity”.  For now, Australians did not have the right to be a bigot. With the 40th anniversary of the Racial Discrimination Act being celebrated with a conference this year, it was only a matter of time before the debate reopened. But Senator Cory Bernardi beat them to the punch arguing, following the 7 January shooting of Charlie Hebdo staff, that freedom of speech should not be curtailed by particular groups’ sensitivity to criticism.

Supporters of the Racial Discrimination Act, like the Racial Discrimination Commissioner Dr Tim Soutphommasane, argue that the current criticism is irrelevant because 18C is about race and not religion:

It is wrong to imply that the terms of the Act extend to debates about religion, religious identity and religious belief. Section 18C applies only to race, colour, ethnic origin and national origin. Religion is not covered.

As an atheist and a supporter of 18C and 18D, this sort of response worries me. Why shouldn’t 18C apply to acts that would be reasonably likely to offend, insult, humiliate, or intimidate on the grounds of religion? Doesn’t the distinction drawn here seem uncomfortably pedantic and small?

Imagine that there are two buses. On one bus, an Arabic family is verbally abused for being Muslim.  On the other, a Muslim family is verbally abused for being Arabic. Both are filmed with a shaky camera phone and uploaded to YouTube on the same day causing yet another national debate.

It seems odd to think that one kind of verbal abuse is worse than the other simply because one is motivated by race while the other is motivated by religion. It seems unsatisfying to think that these two events would be treated differently under our legal system. It seems flatly weird that somebody could argue that section 18C should cover one but not extend to the other. What actually distinguishes one from the other?

As a society, we are unusually relaxed about prejudice on the basis of religion. The most progressive anti-racist will erupt in slackjawed guffaws when presented with lazy attacks on religion. Mediocre comedians and public pseudo-intellectuals have made entire careers out of lazy digs about the religious. It’s only possible because we consider attacks on religion to be fair game but attacks on race to be outside civil discourse.

Is it because we think that people can change their religion like we change our clothes? That religious belief is an optional extra, extrinsic to a person in a way that race is not? These childish, Dawkinsesque attitudes towards religion suggest that it’s okay to unreasonably and unjustifiably attack somebody just because they chose to be a target by having a religious belief. The Refugees Convention includes persecution for religious belief to be a ground for claiming refugee status; perhaps somebody should let these refugees know that they would stop being persecuted if they’d only just change religion.

Part of the resistance to extending 18C to cover religion must be a fear of secretly instituting blasphemy laws. As an atheist, I celebrate the progress society has made in its struggle against the awesome, oppressive power religions have had over society, especially in government; opening a pathway back to draconian blasphemy laws is clearly not in my interest. And if I needed more of a reminder about that, Raif Badawi was just this week whipped for running a website devoted to freedom of speech.

But there is clearly a large gap between protecting people from unreasonable and unjustifiable attacks and whipping people for blasphemy. If we are going to be a mature, inclusive society, we shouldn’t demand that people tolerate unreasonable and unjustifiable abuse. At the same time, clauses like 18D protect good faith criticism. The balance that we see so perfectly in the Racial Discrimination Act could – and should – be made to work for religion.

If Tim Soutphommasane wants to be an advocate for 18C and 18D, he needs to stop relying on technical errors in opponents’ assertions and start championing the bigger picture: members of our community should not have to endure unreasonable and unjustifiable abuse. Distinctions between religion and race does nothing but pander to the Islamophobes.


4 thoughts on “Why s18C should be extended to cover religion

  1. I disagree Mark. I agree your example of the 2 buses is troubling. But I say the following.

    For a start, strong and loud verbal abuse on a bus probably gives rise to a public order offence, which gives rise to harsher penalties than 18c. And hey, the evidence is there. Indeed, I’m not aware the shaky phone footage of recent times has attracted 18c cases but they have attracted arrests, which I presume must be public order offences.

    The 2 concepts are distinguishable because race is immutable while religion is not. Importantly, what is a “religion”. And such protection would extend not just to major religions but perhaps to whatever an adherent might label a religion. I think we could get into bad definitional problems. Our HC has interpreted what a “religion” is in a 1980s Scientology cases (coming I think to opposite conclusion as the House of Lords) – it isn’t satisfactory, surely, that “religion” means a different thing in Australia to the UK (though I’m not sure if that is still the case). I had a PhD student do a thesis on “freedom from religion”and the definition of religion was pretty darn hard to pin down (and in fact was not pinned down). I find it hard to conceive of a definition of religion for the purposes of an equivalent 18c which wouldn’t have arbitrary lines, and perhaps inevitably favour major religions not minor religions.

    Religions normally involve tenets and practices: races as such do not. Sometimes it might be fair to find that those practices are genuinely hateful. Now, criticism of, say, human sacrifice of course is likely to be upheld under s18D, but other things may not be so clear cut. But given the definition of religion, in my view has to be either arbitrary or very wide, many many practices could be involved. Inevitable critiques of those practices will give rise to offence insult etc.

    Ah, I hear you scream, what about s18D? 18D is not a cure-all, because it assumes there is no chilling impact of the law existing in the first place. It assumes there is no hassle in having to raise a defence. I firmly believe that the thing that requires one to find a defence should be prima facie bad enough to attract the law’s attention in the first place. As you know, I don’t think offence and insult re race satisfy that principle; naturally I feel similarly re religion.

    Finally, blasphemy. I would not support the reintroduction of blasphemy laws to protect any religion anywhere. I believe they protect religions as such not religious people. Now, you’re not calling for blasphemy laws. But blasphemy of course does give rise to offence for some adherents of the religion involved. Perhaps some might even call it humiliation, something I have said I am happy to see retained re race in 18c. But I do not wish to have laws that might be used to force people to defend (using 18D) against allegations, essentially, of blasphemy.

    I don’t believe people should be intimidated on the basis of religion, so that addition could be made to the law, alongside a s18D defence. But that is far from your proposal, which is to holus bolus transfer of the existing (and frankly here to stay) 18c to all religions.

    I am not anti-religious. I add that permissible speech in my view is not at all the same thing as desirable speech.

    • Hi Sarah,

      Thanks for your detailed reply. Our positions on this issue (‘Should 18C be extended to religion?’) stem from different background assumptions: I think deliberately (or carelessly) giving offence shouldn’t be tolerated, but you err on the side of free speech.

      My post might lack some clarity. The drive of the argument is that if you support 18C for race, you should support it for religion. Of course, if you don’t support 18C for race, the argument presented is irrelevant.

      For example, your 18D chilling effect example. I’m fine with chilling effects because of my assumption about what things should be endured (i.e. not much without good justification). So the example doesn’t challenge the race to religion entailment.

      Your assertion about religion being mutable, however, is. First, I’m not convinced that religious belief is as mutable as you claim. Try as I might, I can’t bring myself to believe in God. More importantly, it says something ugly that certain kinds of attack are valid simply because the victim could change their status. It looks a lot like: ‘If people didn’t want to be persecuted for being homosexual, they have the choice to keep their sexuality hidden.’ In a pluralistic society, we should be encouraging people to celebrate their identity, even if they consciously chose some or all aspects of that identity.

      • Nothing I’ve said indicates that religion should be hidden. At least I hope that isn’t the implication. It was part of an argument to distinguish why one might plausibly support 18c for race but not religion. I add there were also arguments about definition as well as tenets/practices, which aren’t as relevant to race. I do acknowledge that thorny issues can arise over the definition of a race, which may be less thorny given that race is added ethnicity and national origin in the legislation. And those thorny definitional issues I think are far worse viz religion than race. As I cannot see how any “definition” would be non arbitrary, and would not favour major religions.

        On chilling effects we will have to agree to disagree. But whereas chilling effects over things that might be potentially racially offensive may not be such a societal negative (leaving aside questions of individual human rights), I think chilling effects over potentially offensive things about religious practices could be a major societal negative.

  2. Interesting conversation.

    If religious beliefs were added to s18c, would it also be fair to add political beliefs?

    Should the law extend to religions such as Falun Gong, Aladura, Eckankar, Asatru and BOTA?

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