The Labor Party apparently seeks to extend the reach of section 18C of the Racial Discrimination Act to cover religion. Chris Merritt, legal affairs editor of the Australian newspaper, reports that Labor is considering a plan to extend the reach of litigation based on section 18C to include people claiming they have been offended or insulted because of their religion. In other words, this party wishes to establish ‘Sharia law by stealth’ in order to prevent people ‘offending’ Islam.

Labor’s federal Attorney General Mark Dreyfus has confirmed that Labor would support such changes to 18C. Because Labor’s Opposition Leader Bill Shorten ­rejected the government’s proposed changes to 18C, there appears to be a plan not only to consolidate all federal anti-discrimination laws, but to extend the controversial section to religious grounds, among other things.

The proposal comes from Dr Anne Aly, a Muslim Labor MP from Western Australia. It apparently seeks to expand the scope of anti-discrimination laws to religion, while simultaneously imposing significant restrictions on freedom of speech and freedom of religion. The prospect of an Islamic blasphemy law emerged when Dr Aly told there was ‘scope to reassess’ extending section 18C, saying the racism debate now ‘extends to religion’. She said there was scope to extend 18C to cover religion because, so she says, ‘we have definitely seen an increase in anti-Islamic rhetoric’.

Dr Aly has been rightly denounced by former Human Rights commissioner Tim Wilson, who said such a proposal is part of a ‘mad, ideological drive of the modern Labor Party to use laws to shut people up’. It would ‘turn Australia into Saudi Arabia, where people can be hauled before courts for criticising religion’, he says. Indeed, James Spigelman QC has previously stated that this sort of proposal would have the practical effect of reintroducing the crime of blasphemy into Australia’s law.

Dr Aly’s proposal aims at applying to religion the same formulations which are applied to race. But if people cannot choose the color of their skin, religion is, to some degree at least, a matter of choice and not an immutable genetic characteristic. In contrast to racial issues, where one finds no matters of ‘true’ or ‘false’, religious beliefs involve ultimate claims to truth and error. As noted by Ivan Hare QC, ‘religions inevitably make competing and often incompatible claims about the nature of the true god, the origins of the universe, the path to enlightenment and how to live a good life and so on. These sorts of claims are not mirrored in racial discourse.’

In this sense, law professor Rex Tauati Ahdar reminds us that the laws of a democratic society ‘should be less ready to protect people from vilification based on the voluntary life choices of its citizens compared to an unchangeable attribute of their birth.’ Indeed, laws that make it a crime to voice comments deemed ‘offensive’ to a religious group may create undue fear and intimidation on people who wish to freely express their ideas and opinions. Such laws unreasonably compromise our freedom of political communication, which is a basic freedom derived from our system of democratic government and implied in the Australian Constitution. Otherwise, are we really willing to create in this country the crime of blasphemy that the Organization of the Islamic Conference (OIC) proposes?

Not surprisingly, Dr Aly’s idea has strong support from Federation of Islamic Councils’ president Keysar Trad. ‘Of course we need religious protection. Section 18C should be strengthened and broadened … so that Australians can go about their legitimate daily business … free from persecution on the basis of their religious affiliation,’ Mr Trad said.

Of course, radical Muslims living in western democracies have to find different ways to use our legal system to punish those who ‘offend’ their intolerant beliefs. They find in religious anti-discrimination laws a suitable mechanism to strike fear in the hearts of the ‘enemies of the faith’.

Indeed, one of the greatest ironies of such laws is that their chief beneficiaries are a small but vocal group of religious extremists, although it is not clear why such people should merit statutory protection from severe criticism: surely the contrary is required. Surely some of their beliefs are deeply disturbing if not entirely unacceptable. For example, a Muslim cleric from Melbourne who has notoriously stated that male Muslims should hit and force sex upon their disobedient wives. Although such appalling remarks deserve our strongest condemnation, under this proposal even the slightest criticism of abhorrent statements could result in a person being dragged into a court and charged with religious vilification.

Australians must be entitled to openly manifest their opinion as to why they might regard any aspect of any particular religious belief as ultimately mendacious, retrograde and mindless. Indeed, there is no apparent reason as to why speech about religious matters should not simultaneously be characterised as political communication for the purposes of the freedom of political communication implied in the Australian Constitution. Religion is rarely a private matter alone and the very nature of religious speech is often intertwined with ‘political opinions, perspectives, philosophies and practices’. As law professor Nicholas Aroney points out, ‘law which prohibits religious vilification will infringe the implied right to freedom of political communication’.

In an environment where radicalised Australian Muslims have expressed sympathy with Islamic terrorists, anti-discrimination laws on religious grounds such as proposed by Dr Aly would have unexpected consequences, such as a deleterious effect of making citizens unprepared to criticise or even give warnings about the nature of radical beliefs, however well-based these concerns might be.

Dr Augusto Zimmermann LLB, LLM, PhD (Mon.) is a Law Reform Commissioner with the Law Reform Commission of Western Australia; Professor of Law (Adjunct) at the University of Notre Dame Australia (Sydney); former Associate Dean (Research) and Post Graduate Research Director at Murdoch University School of Law, where he currently teaches and coordinates two core units: Constitutional Law and Legal Theory; and President of the Western Australian Legal Theory Association (WALTA).