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There is free speech, and then there is hate-inducing vilification

By Waleed Aly - posted Thursday, 23 December 2004

Expect to read a lot of obituaries to free speech over the coming weeks.

On Friday, the Victorian Civil and Administrative Tribunal ruled (pdf file 324kb) that an evangelical Christian group and two pastors had incited hatred, ridicule and contempt for Muslims in contravention of religious vilification laws.

The consequences will be light - perhaps even taking the form of an apology - but this has not prevented people from criticising the law.


Listening to talkback radio for example, whether on the ABC or commercial stations, one would have thought our human rights were gravely under siege. We are right to be sensitive about issues of free speech. We are right to be vigilant in protecting it.

Democracy only functions meaningfully in a well informed society. And this is only possible where competing ideas are allowed to contend in the public domain, and public debate is allowed to flourish. Without this, there is little difference between democracy and dictatorship.

No doubt then, free speech is a cornerstone of any genuine democracy. But it is never, and can never be, absolute. Australia has only very limited constitutional protection of free speech, and has some of the tougher defamation laws in the common law world. We accept these restrictions because we recognise that free speech is a means to a democratic end, rather than a goal in itself. It is a wonderful servant, but a dangerous master.

Friday’s ruling concerned more than mere disagreement between religious groups. It even went beyond the contemptuous mocking of another religious group. Though there was plenty of that, it was more serious. One defendant argued that Muslims have a plan to take over Western democracy through violence and terror, and to replace it with repressive regimes; another argued that Muslims would rape, torture and kill Christians in Australia.

Of course, people have the right to advance such ridiculous arguments, and the religious vilification laws do not change that. All the legislation requires is that such arguments are put reasonably and in good faith. It does not limit the scope of debate. But there was nothing reasonable about the arguments put forth in Friday’s case. Not a scrap of proof was given for such rancid claims.

Judge Higgins was stating the obvious when he said the comments in question served no genuine religious purpose or any other purpose in the public interest.


This was not a serious discussion of religious beliefs. It was nothing more than pure hate speech. Can we honestly maintain that this is what free speech in Australia is about? Is this really necessary for our democracy? Does it really enhance our public debate? Surely not.

Surely it is in everyone’s interests to prevent our public conversation from being hijacked by this vitriol. After all, we’ve prevented it in the past. If such things were said of an individual, it would be undoubtedly defamatory. If said of a racial group, it would have long been illegal under racial vilification laws (just as Holocaust denial has been).

If anything, the idea that such statements cannot be made of religious groups is actually consistent with the traditional Australian approach to free speech. It therefore seems a little hysterical to say, as one letter in yesterday’s Herald Sun did, that “freedom of speech is now officially and legally dead... No more can pastors critique other religions”.

Surely we can tell the difference between a sincere critique of another faith, and a baseless assertion that Muslims will embark on a spree of rape, torture and killing of Australians.

This case illustrates how religious debate in Victoria should proceed. By all means, let us engage in passionate, robust debate. But let us do so reasonably and sincerely so that our speech can create a well-informed society that is so vital to democracy. If instead we allow misleading, hate-inducing vilification to masquerade as debate, we are actually undermining the very democracy that is so dear to all of us.

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First published in the Herald Sun and The Courier-Mail on December 21, 2004.

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About the Author

Waleed Aly, a Melbourne lawyer, is a member of the Islamic Council of Victoria executive. He is a lecturer in the Global Terrorism Research Centre at Monash Univeristy. His book, People Like Us (Picador), will be published in September.

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Islamic Council of Victoria
Victorian Civil and Administrative Tribunal
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