Published online by Cambridge University Press: 24 January 2025
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. 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.
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)Google Scholar. 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.
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 285Google Scholar; Tamsin, Solomon, ‘Problems in Drafting Legislation Against Racist Activities’ (1994) 1 Australian Journal of Human Rights 265Google Scholar; Anne, Flahvin, ‘Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles?’ (1995) 18 University of New South Wales Law Journal 327Google Scholar; Saku, Akmeemana and Melinda, Jones, ‘Fighting Racial Hatred’, in Commonwealth Race Discrimination Commissioner, The Racial Discrimination Act: A Review (1995) 156–62Google Scholar; Luke, McNamara and Tamsin, Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?’ (1996) 18 Adelaide Law Review 259, 278–83Google Scholar; Wojciech Sadurski, Freedom of Speech and its Limits (1999) ch 6; Michael, Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 238–43Google Scholar; Dan, Meagher, ‘What is “Political Communication“? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438Google Scholar; Dan, Meagher, ‘The Protection of Political Communication under the Australian Constitution’ (2005) 28 University of New South Wales Law Journal 30Google Scholar.
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 163Google Scholar; Kathleen, Mahony, ‘Hate Vilification Legislation and Freedom of Expression: Where is the Balance?’ (1994) 1 Australian Journal of Human Rights 353Google Scholar; Luke, McNamara, ‘The Merits of Racial Hatred Laws: Beyond Free Speech’ (1995) 4 Griffith Law Review 29Google Scholar; Lawrence, Maher, ‘Free Speech and its Postmodern Adversaries’ (2001) 8(2) Murdoch University Electronic Journal of LawGoogle Scholar; Dan, Meagher, ‘So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) 32 Federal Law Review 225Google Scholar.
8 Patrick Parkinson, ‘Enforcing Tolerance: Vilification Laws and Religious Freedom in Australia’ (Paper delivered at the Eleventh Annual International Law and Religion 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 30Google Scholar; 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 409Google Scholar. 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).
10 Anti-Discrimination Act 1991 (Qld) s 124A; Anti-Discrimination Act 1998 (Tas) ss 19, 55.
11 A ‘public act’ is defined to include ‘any form of communication to the public’, ‘any conduct that is observable by the public’ and, in Tasmania, ‘the distribution or dissemination of any matter to the public’: Anti-Discrimination Act 1991 (Qld) s 4A; Anti-Discrimination Act 1998 (Tas) s 3.
12 Anti-Discrimination Act 1991 (Qld) s 124A(1).
13 Also, the Queensland Act in this connection specifically refers to ‘public discussion or debate’: Anti-Discrimination Act 1991 (Qld) s 124A(2).
14 Anti-Discrimination Act 1991 (Qld) s 124A(2)(c); Anti-Discrimination Act 1998 (Tas) s 55.
15 Anti-Discrimination Act 1991 (Qld) s 124A(2)(b); Anti-Discrimination Act 1998 (Tas) s 55.
16 Racial and Religious Tolerance Act 2001 (Vic) s 25(2).
17 Racial and Religious Tolerance Act 2001 (Vic) s 25(1); Anti-Discrimination Act 1991 (Qld) s 131A(1).
18 In this article, I put aside the objections to the implied freedom which, in my view, cast significant doubts on its constitutional legitimacy. See Nicholas Aroney, Freedom of Speech in the Constitution (1998). Despite misgivings that have been expressed by recently appointed members of the High Court, the implied freedom has been applied by more than a dozen High Court decisions and the number of lower court decisions multiplies each year. See Dyson, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9, 17Google Scholar; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 330–2 (Callinan J).
19 Lange (1997) 189 CLR 520, 567–8 (citations omitted). See, further, at 561–2, where the Court explained that: ‘The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.’
20 (2004) 220 CLR 1 (‘Coleman’).
21 Coleman (2004) 220 CLR 1, 48–50 (McHugh J), 77–9 (Gummow and Hayne JJ), 82, 88–9 (Kirby J). See also APLA Limited v Legal Services Commissioner (NSW) (2005) 219 ALR 403, 420 (McHugh J), 456 (Gummow J) (‘APLA’). For a discussion, see Nicholas, Aroney, ‘Justice McHugh, Representative Government and the Elimination of Balancing’ (2006) 28 Sydney Law Review 505Google Scholar.
22 See Chesterman, above n 5, 44–63; Michael, Chesterman, ‘When is a Communication “Political“?’ (2000) 14(2) Legislative Studies 5Google Scholar.
23 Australian Capital Television v Commonwealth (1992) 177 CLR 106, 159 (Brennan J) (‘ACTV’); Levy v Victoria (1997) 189 CLR 579, 596–8 (Brennan CJ) (‘Levy’); Coleman (2004) 220 CLR 1, 52 (McHugh J); Mulholland v Australian Electoral Commission (2003) 128 FCR 523, 533–4 (Black CJ, Weinberg and Selway JJ). Cf ACTV (1992) 177 CLR 106, 217–8 (Gaudron J); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 95 (Gaudron J) (‘Nationwide News’).
24 ACTV (1992) 177 CLR 106, 142–4 (Mason CJ), 169 (Deane and Toohey JJ), 217–8 (Gaudron J) 235 (McHugh J); Nationwide News (1992) 177 CLR 1, 76–7 (Deane and Toohey JJ); Levy (1997) 189 CLR 579, 647 (Kirby J); Coleman (2004) 220 CLR 1, 122–4 (Heydon J); Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 200–1 (Gleeson CJ) (‘Mulholland’).
25 See, eg, Levy (1997) 189 CLR 579, 596–9 (Brennan CJ); cf 608 (Dawson J), 624 (McHugh J). See also Coleman (2004) 220 CLR 1, 50–1 (McHugh J).
26 See, eg, ACTV (1992) 177 CLR 106, 143 (Mason CJ), 169 (Deane and Toohey JJ), 235 (McHugh J); Nationwide News (1992) 177 CLR 1, 77 (Deane and Toohey JJ); Levy (1997) 189 CLR 579, 614 (Toohey and Gummow JJ), 618–9 (Gaudron J), 647 (Kirby J); Kruger v Commonwealth (1998) 190 CLR 1, 126–9 (Gaudron J) (‘Kruger’); Coleman (2004) 220 CLR 1, 31 (Gleeson CJ), 110 (Callinan J), 122–3 (Heydon J). Cf Mulholland (2004) 220 CLR 181, 254 (Kirby J).
27 See Lange (1997) 189 CLR 520, 562; and compare the variety of views expressed in Coleman (2004) 220 CLR 1, 52–3 (McHugh J), 90 (Kirby J), and in Mulholland (2004) 220 CLR 181, 197 (Gleeson CJ), 252, 266–7 (Kirby J).
28 See Jeremy, Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1Google Scholar; Adrienne, Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar.
29 See Levy (1997) 189 CLR 579, 607 (Dawson J); Coleman (2004) 220 CLR 1, 48–50 (McHugh J).
30 I will limit my discussion here to decisions of the High Court of Australia. For lower court decisions that have considered the meaning of ‘political communication’, see, eg, Brown v Classification Review Board (1997) 145 ALR 464; Brown v Classification Review Board (1998) 82 FCR 225; Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 89 FCR 17; Australian Broadcasting Corporation v Hanson (Unreported, Supreme Court of Queensland, Court of Appeal, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998); Gordon v Dimitriou (Unreported, McPherson and Davies JJA, Fryburg J, Supreme Court of Queensland, Court of Appeal, 16 April 1999); John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000); Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334, 354 (Finn J).
31 ACTV (1992) 177 CLR 106, 187.
32 ACTV (1992) 177 CLR 106, 232; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 206 (‘Theophanous’).
33 Lange (1997) 189 CLR 520, 560; see also APLA (2005) 219 ALR 403, 422 (McHugh J); Coleman (2004) 220 CLR 1, 125–6 (Heydon J).
34 Lange (1997) 189 CLR 520, 559–60.
35 Lange (1997) 189 CLR 520, 561. See Chesterman, above n 5, 23, who refers to ‘other persons or bodies for whose official conduct the representatives are responsible’.
36 Lange (1997) 189 CLR 520, 560.
37 (1994) 182 CLR 211, 264 (‘Stephens’); cited in Lange (1997) 189 CLR 520, 570–1.
38 ACTV (1992) 177 CLR 106, 138.
39 Theophanous (1994) 182 CLR 104, 124, quoting Eric Barendt, Freedom of Speech (1985) 152. Their Honours also cited Alexander Meiklejohn, Political Freedom (1960) 42, to the effect that political communication extends to ‘speech which bears, directly or indirectly, upon issues with which voters have to deal’, that is, the ‘consideration of matters of public interest’. Cf Alexander, Meiklejohn, ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245, 256–7Google Scholar.
40 Although see Kruger (1998) 190 CLR 1, 90–1 (Toohey J), 114 (Gaudron J).
41 Theophanous (1994) 182 CLR 104, 123.
42 Coleman (2004) 220 CLR 1, 30–1 (Gleeson CJ); APLA (2005) 219 ALR 403, 412–13 (Gleeson CJ and Heydon J).
43 APLA (2005) 219 ALR 403, 422 (McHugh J).
44 Lange (1997) 189 CLR 520, 571.
45 ACTV (1992) 177 CLR 106, 142 (Mason CJ), 168–9 (Deane and Toohey JJ), 215–7 (Gaudron J); Theophanous (1994) 182 CLR 104, 122–3 (Mason CJ, Toohey and Gaudron JJ), 164 (Deane J); Stephens (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane J).
46 Lange (1997) 189 CLR 520, 571–2. However, cf Levy (1997) 189 CLR 579, 596 (Brennan J), 626 (McHugh J), 643–4 (Kirby J); Kruger (1998) 190 CLR 1, 68–9 (Dawson J). On the even wider scope of the defence of qualified privilege potentially available to defendants in defamation actions: see Lange (1997) 189 CLR 520, 571–6.
47 The clearest example of this latter point is Levy (1997) 189 CLR 579.
48 (1994) 182 CLR 104, 298–9 (Mason CJ), 336 (Deane J), 379–80 (Toohey J), 387 (Gaudron J) (‘Cunliffe’). Justice Toohey nonetheless joined with Brennan, Dawson and McHugh JJ in the conclusion that the relevant provisions of the Migration Act 1958 (Cth) were not constitutionally invalid.
49 Cunliffe (1994) 182 CLR 104, 329 (Brennan J); see also 365–6 (Dawson J), 395 (McHugh J).
50 (2005) 219 ALR 403 (‘APLA’).
51 Theophanous (1994) 182 CLR 104, 123 (Mason CJ, Toohey and Gaudron JJ), discussing ACTV (1992) 177 CLR 106, 141 (Mason CJ).
52 Theophanous (1994) 182 CLR 104, 124, citing Alexander Meiklejohn, Political Freedom (1960) 42.
53 Theophanous (1994) 182 CLR 104, 123–5. See, likewise, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89, 114 (Hill J).
54 Theophanous (1994) 182 CLR 104, 124.
55 See text to n 39 above.
56 See text to nn 31–33 above.
57 See Chesterman, above n 5, 46–9.
58 See Adrienne, Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374, 399Google Scholar at n 136. For a contrary view, see Meagher, ‘What is “Political Communication“?’, above n 5, 460.
59 Section 116 of the Constitution provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Constitution’.
60 Harkianakis v Skalkos (1999) 47 NSWLR 302 (‘Harkianakis’).
61 Meagher, ‘What is “Political Communication“?’, above n 5, 460. Cf, however, the view expressed in Halsbury’s Laws of Australia, [80–1445].
62 The controversy involved separate actions for defamation and contempt of court initiated by the Archbishop of the Greek Orthodox Archdiocese of Australia in respect of articles published in two Greek language newspapers containing imputations concerning the plaintiff’s personal conduct and fitness for ecclesiastical office. President Mason observed that the actions involved a number of issues of what he called ‘church politics’, meaning that they related to ‘issues of governance and authority within the Church community’. See Harkianakis (1997) 42 NSWLR 22, 26.
63 Harkianakis (1999) 47 NSWLR 302, 303. A similar argument was made, and rejected, in Catch the Fire Ministries [2003] VCAT 1753 (Unreported, Higgins V-P, 21 October 2003) [8]–[17].
64 Harkianakis (1999) 47 NSWLR 302, 304.
65 Ibid 307.
66 Ibid 305.
67 Ibid; cf 308, in which the denial of leave to amend the defence meant that it was not necessary to consider whether the question should be referred to the Court of Appeal.
68 See ibid 306.
69 (1943) 67 CLR 116, 122–3 (‘Jehovah’s Witnesses Case’).
70 Harkianakis (1999) 47 NSWLR 302, 307.
71 The significance of the decision is, of course, limited by the fact that it was merely an application to amend the pleadings. The case can also be limited to the facts, in so far as the religiously motivated defamatory remarks were made within a specific ecclesiastical context.
72 Chesterman, above n 5, 54, has remarked that ‘the agenda for “political discussion”, as conceived for the implied freedom, is open-ended, and should indeed be responsive to, and at times enlarged by, the public debate occurring amongst citizens generally. Furthermore … limitations on this agenda which would seem to arise naturally from aspects of the constitutional structure of the country — for example, its federal nature — should not in fact be taken for granted.’ See, likewise, Meagher, ‘What is “Political Communication“?’, above n 5, 460–1.
73 Jehovah’s Witnesses Case (1943) 67 CLR 116, 123.
74 Ibid.
75 See, eg, Coleman (2004) 220 CLR 1, 49 (McHugh J).
76 A question to which I will turn shortly.
77 This includes, it seems, not only legislation enacted under ss 51 and 52, but also the appropriation of money under s 81 and the making of grants to the States under s 96: Attorney-General (Vic) (ex rel Black) v Commonwealth (1981) 146 CLR 559, 576 (Barwick CJ), 593 (Gibbs J), 621 (Murphy J), 648, 651 (Wilson J) (‘State Aid Case’).
78 Cf Stone, ‘Rights, Personal Rights and Freedoms’, above n 58, 381.
79 State Aid Case (1981) 146 CLR 559, 580–1 (Barwick CJ); Minister for Immigration & Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373, 374 (Fox J), 378–9 (Jackson J).
80 However, on potential amendments to the Constitution, cf John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 (Unreported, Spigelman CJ, Priestley and Meagher JJA, 2 August 2000) [84] (Spigelman CJ).
81 Jehovah’s Witnesses Case (1943) 67 CLR 116, 126.
82 State Aid Case (1981) 146 CLR 559.
83 State Aid Case (1981) 146 CLR 559, 580–2 (Barwick CJ), 603–4 (Gibbs J), 605–10 (Stephens J), 612–18 (Mason J), 622–32 (Murphy J), 651–5 (Wilson J).
84 See, eg, Everson v Board of Education, 330 US 1, 15–16 (1947). On the shifts in American non-establishment jurisprudence, see John, Witte Jnr, Religion and the American Constitutional Experiment (2nd ed, 2005)Google Scholar ch 8.
85 State Aid Case (1981) 146 CLR 559.
86 McDaniel v Paty, 435 US 618, 640–1 (Brennan J, concurring). See Kent Greenawalt, Religious Convictions and Political Choice (1988) 244–60; Kent, Greenawalt, ‘The Role of Religion in a Liberal Democracy: Dilemmas and Possible Resolutions’ (1993) 35 Journal of Church and State 503Google Scholar; Michael, Perry, ‘Why Political Reliance on Religiously Grounded Morality does not Violate the Establishment Clause’ (2001) 42 William and Mary Law Review 663Google Scholar; contrast Robert, Audi, ‘The Separation of Church and State and the Obligations of Citizenship’ (1987) 18 Philosophy and Public Affairs 259Google Scholar.
87 John, Rawls, Political Liberalism (1996) 212–54Google Scholar; John, Rawls, ‘The Idea of Public Reason Revisited’, in Samuel, Freeman (ed), The Cambridge Companion to Rawls (2003) 591Google Scholar; see also Charles, Larmore, ‘Public Reason’, in Samuel, Freeman (ed), The Cambridge Companion to Rawls (2003) 383–6Google Scholar. Rawls’ insistence upon public reason and his exclusion of reasons based on ‘comprehensive doctrines’ from public debate, first, is a matter of normative political theory, not constitutional law, secondly, does not apply to all political determinations, but is limited to decisions about ‘constitutional fundamentals and questions of fundamental justice’ and, thirdly, does not apply to personal deliberations about political matters.
88 Rawls, Political Liberalism, above n 87, li–lii.
89 William, Galston, Liberal Pluralism (1992)Google Scholar; Michael, Perry, ‘Why Political Reliance on Religiously Grounded Morality is not Illegitimate in a Liberal Democracy’ (2001) 36 Wake Forest Law Review 217Google Scholar; Jeremy, Waldron, ‘Religious Contributions in Public Deliberation’ (1993) 30 San Diego Law Review 817Google Scholar; Kent, Greenawalt, Private Consciences and Public Reasons (1995)Google Scholar. For an illuminating debate, see Robert, Audi and Nicholas, Wolterstorff (eds), Religion in the Public Square: The Place of Religious Convictions in Political Debate (1997)Google Scholar. See, also, Christopher, Eberle, Religious Conviction in Liberal Politics (2002)Google Scholar.
90 Harkianakis (1999) 47 NSWLR 302, 303.
91 Ibid.
92 In the Jehovah’s Witnesses Case (1943) 67 CLR 116, 123, Latham CJ considered that s 116 operates to protect not only freedom of religion, but also the right to have no religion.
93 Porter v R; ex parte Yee (1926) 37 CLR 432, 448 (Rich J); Lamshed v Lake (1958) 99 CLR 132, 143 (Dixon CJ), 152 (Williams J), 154 (Kitto J); Teori Tau v Commonwealth (1969) 119 CLR 564, 567, 571 (Barwick CJ for the Court); State Aid Case (1981) 146 CLR 559, 593–4 (Gibbs J), 621 (Murphy J), 649 (Wilson J); Kruger (1997) 190 CLR 1, 58–61 (Dawson J), 85–7 (Toohey J), 121–4 (Gaudron J), 142 (McHugh J), 160–1 (Gummow J).
94 Grace Bible Church Inc v Reedman (1984) 54 ALR 571. Note, however, the free exercise and religious test clauses contained in Constitution Act 1934 (Tas) s 46.
95 See APLA (2005) 219 ALR 403, 519 (Callinan J), discussed below.
96 (2005) 219 ALR 403.
97 Clause 139(1) of the Legal Profession Regulation 2002 (NSW) provided:
A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).
98 See Nicholas, Aroney, ‘Lost in Translation: From Political Communication to Legal Communication?’ (2005) 28 University of New South Wales Law Journal 833Google Scholar.
99 One of the advertisements that the Australian Plaintiff Lawyer’s Association presented in evidence began by saying: ‘Despite the best efforts of Premier Bob Carr and Senator Helen Coonan to stop you, you may still have legal rights to compensation for such injuries at law or under the Trade Practices Act 1975 (Cth).’ See APLA (2005) 219 ALR 403, 510.
100 Ibid 486–7.
101 Ibid 422–3.
102 Ibid 421–2.
103 See ibid 457.
104 Ibid.
105 Ibid 486.
106 See APLA (2005) 219 ALR 403, 486–7 (Kirby J). It is notable that Kirby J nonetheless adopted a very wide view of the ‘political’, which encompasses not only the legislative and executive institutions established in Chapters I and II of the Constitution, but also the judicial institutions established in Chapter III. See APLA (2005) 219 ALR 403, 487–9, discussed in Aroney, above n 98.
107 APLA (2005) 219 ALR 403, 413.
108 Ibid 497.
109 Ibid 498.
110 Ibid 521, 522.
111 Ibid 522.
112 Ibid 519.
113 Cf Sadurski, above n 7, 190; Flahvin, above n 5, 336, and Meagher, ‘What is “Political Communication“?’, above n 5, 460, arguing for a similar overlap between racial vilification and political discussion.
114 See Stone, above n 58, 386–7, suggesting that ‘questions of religion, moral philosophy, history, medical science and sociology’ can all arise in public debate that influences the ‘attitudes of voters’ to the federal government.
115 No doubt many particular acts of religious vilification may have no tangible relevance to federal politics in the narrow sense of being relevant to federal electoral choices. In such cases, only the wider view adopted by Mason CJ, Toohey and Gaudron JJ in Theophanous could possibly constitute such communications as being relevantly political. Either way, religious vilification laws are likely in at least some cases to involve religious speech which is at the same time relevantly political speech. Moreover, in any particular case, line-drawing will be unavoidable. See the discussion and examples given in Stone, above n 58, 378–90; Meagher, ‘What is “Political Communication“?’, above n 5, 463–71.
116 See, likewise, in relation to the NSW and Commonwealth racial vilification laws: Kazak [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000) [95] and Jones v Scully (2002) 120 FCR 243, 305; and compare the detailed analysis in Meagher, ‘Protection of Political Communication’, above n 5, 56, 58–60.
117 (2004) 220 CLR 1 (‘Coleman’).
118 Coleman v Power [2002] 2 Qd R 620.
119 Justices Heydon, Gummow and Hayne were very explicit that this was an assumption and nothing more; Callinan J added that he in fact disagreed with the concession; Gleeson CJ merely referred to the concession; McHugh and Kirby JJ considered the concession to have been made correctly. See Coleman (2004) 220 CLR 1, 30 (Gleeson CJ), 44–5 (McHugh J), 64 (Gummow and Hayne JJ), 78, 89 (Kirby J), 112–15 (Callinan J), 120 (Heydon J).
120 Ibid 74–5 (Gummow and Hayne JJ).
121 Ibid 78–9 (Gummow and Hayne JJ), 88–9 (Kirby J).
122 Ibid 39–40, 41.
123 Ibid 41–2.
124 Ibid 53–4.
125 Ibid 24 (Gleeson CJ), 108–9 (Callinan J), 116–7 (Heydon J). See also ibid at 26 where Gleeson CJ added that the conduct must be ‘contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.’
126 Ibid 32 (Gleeson CJ), 114 (Callinan J), 127 (Heydon J).
127 See ibid 119 (Heydon J).
128 Ibid 44–5 (McHugh J), 89 (Kirby J).
129 Racial and Religious Tolerance Act 2001 (Vic) s 25(1); Anti-Discrimination Act 1991 (Qld) s 131A. As noted earlier, s 25(2) of the Victorian Act does not require any threat of harm, but merely that the vilifying conduct be done knowingly and with intent to vilify.
130 Meagher, ‘Protection of Political Communication’, above n 5, 44–52.
131 Coleman (2004) 220 CLR 1, 49–50.
132 Ibid 77–8 (Gummow and Hayne JJ), 82 (Kirby J). See Aroney, above n 21, 527.
133 Coleman (2004) 220 CLR 1, 53.
134 Ibid 121–2.
135 Ibid 31 (Gleeson CJ), 53 (McHugh J), 78 (Gummow and Hayne JJ), 91, 98–9 (Kirby J), 111–12 (Callinan J), 122 (Heydon J). Note the similarity between these goals and the formula adopted by Deane and Toohey JJ in Nationwide News (1992) 177 CLR 1, 77, namely, ‘the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society’. See Chesterman, above n 5, 241.
136 Racial and Religious Tolerance Act 2001 (Vic) s 4(1).
137 See, likewise, in relation to the Commonwealth racial vilification law: Kazak [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000) [96]; Jones v Scully (2002) 120 FCR 243, 305–6.
138 That is, notwithstanding the argument advanced earlier that the targeting point made in APLA is better understood as applying to the second, rather than the first, limb of the Lange test.
139 It was noted earlier that some judges have said that a distinction should be drawn between laws which target the content of communications and those which merely impose restrictions on the manner or form in which communication can take place, and have held that laws which target communicative content must be strictly scrutinised by the Courts. The emphasis in APLA and Coleman upon the targeting of the law, particularly in the judgments of Gleeson CJ and Heydon J, should be read in this light. However, as explained earlier, in this article I avoid reliance upon abstract tests and approaches, opting rather to argue by analogy with the decided cases. I therefore deliberately avoid the question of whether strict scrutiny will be applied to religious vilification laws, given their focus on the ‘content’ of communication. Strict scrutiny would, of course, make it relatively more likely that religious vilification laws will be found unconstitutional. Sadurski, above n 7, 193 argues that strict scrutiny should be applied to racial vilification laws because of the ‘proximity of [racist] speech to public debate on political issues’. The contrary point of view is articulated in Meagher, ‘Protection of Political Communication’, above n 5, 40–52.
140 Coleman (2004) 220 CLR 1, 30.
141 Ibid 111–14.
142 On the tension between conceptions of the kind of debate that is appropriate to representative government (‘rich and balanced’ as opposed to ‘robust and rigorous’), see Stone, above n 58, 392–400.
143 Coleman (2004) 220 CLR 1, 54.
144 Ibid.
145 Ibid 78–9 (Gummow and Hayne JJ), 91, 98–9 (Kirby J).
146 Ibid 54.
147 Ibid 78.
148 Ibid 91. See, likewise, Roberts v Bass 212 CLR 1, 62–3 (Kirby J), 78 (Hayne J).
149 Coleman (2004) 220 CLR 1, 114.
150 Ibid 121–2.
151 Ibid 125–6.
152 Ibid 24, 30–31.
153 Alternatively put, are Australian religious vilification laws ‘targeted’ in such a way as to meet the relatively lower standard required by the minority in Coleman?
154 As noted, the Racial and Religious Tolerance Act 2001 (Vic) s 8(1), the Anti-Discrimination Act 1991 (Qld) s 124A, and the Anti-Discrimination Act 1998 (Tas) s 19, are virtually identical on these points, except that the latter do not include ‘revulsion’. Cf Harou-Sourdon v TCN Channel Nine Pty Limited (1994) EOC 92–604; Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92–701 and Kazak [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000), discussing the meaning of ‘incite’, ‘hatred’, ‘serious contempt’ and ‘severe ridicule’ in the Anti-Discrimination Act 1977 (NSW) ss 20C and 20D. See also Houston v Burton [2003] TASADT 3 (Unreported, Chairperson Wood, Member Bishop, 18 June 2003). Compare also the ‘classic’ definition of defamation in Parmiter v Coupland (1840) 6 M&W 105, 108 (Parke B), cited in Chesterman, above n 5, 206.
155 See Fletcher [2005] VCAT 1523 (Unreported, Morris P, 1 August 2005) [7], discussed below. Of course, if a particular communication, while referring only to beliefs also has the effect of inciting hatred of particular individuals or groups, then it will be a different matter. And, indeed, the line between inciting hatred of beliefs and inciting hatred of persons may be a difficult one to draw. But by proscribing only the incitement of hatred against persons or groups, the legislation calls for the distinction to be made. And if the law leaves room for the vitriolic criticism of beliefs, then this is a factor to be considered in an assessment of whether the law is likely to pass constitutional muster.
156 Racial and Religious Tolerance Act 2001 (Vic) s 11. As noted, the Anti-Discrimination Act 1991 (Qld) s 124A(2) refers to ‘the publication of a fair report’ of an act to which s 124A(1) refers, as well as to an act done for ‘academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate …’. Section 124A(2) also refers to ‘the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation’. The Anti-Discrimination Act 1998 (Tas) s 55 contains very similar provisions, except that it does not refer specifically to ‘public discussion or debate’ and simply refers to acts done ‘in good faith’, without the additional requirement of reasonableness.
157 See Chesterman, above n 5, 204–16, discussing the similarities and differences between Australian defamation law and the various Australian racial vilification laws. Chesterman notes that the parallels are particularly evident in the case of the ‘NSW-based’ racial vilification legislation enacted in New South Wales, the Australian Capital Territory and South Australia.
158 Both racial and religious vilification laws have been upheld by various State tribunals on grounds such as these. See Kazak [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000) [96]; Jones v Scully (2002) 120 FCR 243, 306; Deen v Lamb [2001] QADT 20 (Unreported, Sofronoff P, 8 November 2001) 5–7; Catch the Fire Ministries [2003] VCAT 1753 (Unreported, Higgins V-P, 21 October 2003) [8]–[17]. Compare the detailed analysis in Meagher, ‘Protection of Political Communication’, above n 5, 63–8.
159 Meagher, above n 7, 231–9, 247–53. For an argument that hate speech laws are congenitally vague, see Eric, Heinze, ‘Viewpoint Absolutism and Hate Speech’ (2006) 69 Modern Law Review 543Google Scholar.
160 Ibid 227–8, 252–3.
161 See Racial and Religious Tolerance Act 2001 (Vic) s 9(1). Cf the Anti-Discrimination Act 1991 (Qld) s 124A and the Anti-Discrimination Act 1998 (Tas) s 19, which do not require intent. Contrast ‘serious’ religious vilification under the Racial and Religious Tolerance Act 2001 (Vic) s 25(1) and the Anti-Discrimination Act 1991 (Qld) s 131A, which require that a person ‘knowingly’ or ‘recklessly’ incites hatred.
162 Contrast the criminal penalties for ‘serious’ vilification: Racial and Religious Tolerance Act 2001 (Vic) s 25; Anti-Discrimination Act 1991 (Qld) s 131A.
163 See R v Keegstra [1990] 3 SCR 697, 773–5.
164 As noted earlier, only good faith is required in Tasmania: Anti-Discrimination Act 1998 (Tas) s 55.
165 See Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 19; Anti-Discrimination Act 1991 (Qld) ss 124A, 206, but cf Deen v Lamb [2001] QADT 20 (Unreported, Sofronoff P, 8 November 2001), 12–13.
166 See, likewise, Fletcher [2005] VCAT 1523 (Unreported, Morris P, 1 August 2005) [1], [4]–[10]; and compare Judeh v Jewish National Fund of Australia Inc [2003] VCAT 1254 (Unreported, McKenzie DP, 13 March 2003). Chesterman, above n 5, 242, points out that the Commonwealth Racial Discrimination Act 1975 (Cth) s 18C(1), which applies to racist speech that is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’, is less likely to be upheld.
167 Meagher, above n 7, 243–4.
168 Racial and Religious Tolerance Act 2001 (Vic), Second Reading Speech, 17 May 2001, Victoria, Parliamentary Debates (2001) 1284–6 (Premier Bracks). See, likewise, Meagher, above n 7, 231–5, 240–41, 243–5, 247–9, discussing the scope of State and federal racial vilification laws.
169 Racial and Religious Tolerance Act 2001 (Vic) s 4(1); and see the Explanatory Notes to the Anti-Discrimination Amendment Bill 2001 (Qld). Compare Fasold v Roberts (1997) 70 FCR 489, 550 (Sackville J): ‘considerable care must be exercised before making orders restraining statements made in the course of public discussion on issues regarded by many people as important to their religious or ideological beliefs … Unless caution is exercised, there is a serious risk that the courts will be used as the means of suppressing debate and discussion on issues of general interest to the community … ‘.
170 See Meagher, above n 7, 230–37, 247–9.
171 For example, Acts Interpretation Act 1901 (Cth) ss 15A, 15AA, 15AB; Interpretation of Legislation Act 1984 (Vic) ss 6, 35; Acts Interpretation Act 1954 (Qld) ss 9, 14A, 14B.
172 See Islamic Council of Victoria Inc v Catch the Fire Ministries Inc (Final) [2004] VCAT 2510 (Unreported, Higgins V-P 22 December 2004) [50], [63], [67], [73], [76], [276], [373], [393], passim. (The judgment at particular stages does not use numbered paragraphs, making it difficult to provide further pin-point references.)
173 Parkinson, above n 8.
174 Cf Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] HREOCA 11 (Unreported, Commissioner Johnston, 21 June 1999) [4.3]; Kazak [2000] NSWADT 77 (Unreported, Hennessy DP, Members Farmer and Jowett, 22 June 2000) [29], [93]–[97]; John Fairfax Publications Pty Ltd v Kazak [2002] NSW ADTAP 35 (Unreported, Latham DP, Judicial Member Goode, Member Antonios, 25 October 2002) [16]; Deen v Lamb [2001] QADT 20 (Unreported, Commissioner Sofronoff, 8 November 2001) 5–7; Jones v Scully (2002) 120 FCR 243, 304–6; Catch the Fire Ministries [2003] VCAT 1753 (Unreported, Higgins V-P, 21 October 2003) [6], [17]; Islamic Council of Victoria Inc v Catch the Fire Ministries Inc (Final) [2004] VCAT 2510 (Unreported, Higgins V-P 22 December 2004) [6], [10]–[11], [81], [382], [384], [388]–[390]; Judeh v Jewish National Fund of Australia Inc [2003] VCAT 1254 (Unreported, McKenzie DP, 13 March 2003); Fletcher [2005] VCAT 1523 (Unreported, Morris P, 1 August 2005) [7]. See, further, the cases on racial vilification cited in Whelan and Fougere, above n 2, 10–21.
175 Fletcher [2005] VCAT 1523 (Unreported, Morris P, 1 August 2005) [7]. The approach adopted in Fletcher is in rather stark contrast to Islamic Council of Victoria Inc v Catch the Fire Ministries Inc (Final) [2004] VCAT 2510 (Unreported, Higgins V-P 22 December 2004).
176 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105, 125–6. See also his Honour’s remarks at 128 and 131–2 in relation to reasonableness and good faith.