The Australian Human Rights Commission and religious freedom

The first was then Opposition leader Abbott's promise to repeal s 18C. The second was the rowdy religious demonstration on the streets of Sydney on 15 September 2012 when some demonstrators held aloft signs exhorting fellow Australians to decapitate persons who insult religion. This conspicuous display of religious hatred was aggravated by the depravity of the use of at least one very small child to spread the hatred.

The AHRC made a prolonged "end of the world is nigh" public fuss about the repeal of s 18C, and turned a blind eye to the incitement to religious homicide. The outermost extent of its hyperbole and intellectual slovenliness was manifested in the AHRC's claim that repeal of s 18C could be likened to taking the first step along the path to genocide.

Look before you leap

History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. . .

[I]f the quantity or even permitted nature of political discourse is identified by reference to what most, or most "right-thinking", members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right. . .

None of the reactions described – significant anger, significant resentment, outrage, disgust or hatred – constitutes a form of legally cognisable harm. Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them. More than that, the emotional responses described are universal human responses which are among the 'ordinary and inevitable incidents of life'. They can be provoked for any of a myriad of reasons, in well-nigh any circumstances. Experiencing responses of these kinds does not set the person concerned apart from any save the most sheltered or placid of human beings. Justice Hayne, Monis and Droudis v The Queen(2003)

The AHRC's response to the proposed repeal of s 18C displayed a failure to be guided by commonsense. The Abbott/Brandis promise was hollow. Not surprisingly, its sponsors declined to engage in any sustained public advocacy. It was, after all, the same Mr Abbott and Senator Brandis who in 2005 supported a great leap backwards by resuscitating the obsolescent law of seditious libel, the history of which was one of state suppression of political dissent.

The AHRC President's assertion at the Free Speech 2014 conference that the government had responded "to the overwhelming rejection of the proposed amendments by the Australian community" could be seen as hubris. It reflected the fact that the AHRC had been at the forefront of the powerful ad hoc pro-censorship alliance led by the ABC and Fairfax Media which opposed amendment of s 18C.

History and the not so Holy Grail

"It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world . . . What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. At all times there are many who agree with the reflective comment of the Roman poet-"Tantum religio potuit suadere malorum"

The prohibition in s 116 [of the Australian Constitution] operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion . . . [It] proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion." Chief Justice Latham, Adelaide Company of Jehovah's Witnesses Inc v Commonwealth(1943)

The AHRC genocide alert is a pointer to its all-pervading ahistorical approach to religious freedom in Australia as evidenced by the way it:

• Ignores the lessons of the resolution of Australia's experience with bitter (but, notably, non-violent) sectarian religious conflict without need for the imposition of a civil censorship apparatus of the s 18C kind which the AHRC administers;
• Ignores the obsolescence of the Christianity-specific common law of blasphemous libel; and,
• Affronts the wide-ranging concept of religious freedom protected by s 116 of the Constitution.

When s 116 is set alongside the absence of international law recognition of the constitutive national value of the separation of church and state, Australia's domestic standard of religious freedom is centuries ahead of international law norms and standards.