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Aroney, Nicholas --- "The Constitutional (In)validity of Religious Vilification Laws: Implications for their Interpretation" [2006] FedLawRw 10; (2006) 34(2) Federal Law Review 287

[∗] Fellow, Centre for Public, International and Comparative Law, and Senior Lecturer in Law, School of Law, The University of Queensland. 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] HCA 25; (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). See Racial Discrimination Act 1975 (Cth) ss 18B18F; 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 18C18D, 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] FCA 1080; (2002) 120 FCR 243, 304–6; Toben v Jones [2003] FCAFC 137; (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] AUJlHRights 18; (1994) 1 Australian Journal of Human Rights 285; Tamsin Solomon, 'Problems in Drafting Legislation Against Racist Activities' [1994] AUJlHRights 17; (1994) 1 Australian Journal of Human Rights 265; Anne Flahvin, 'Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles?' [1995] UNSWLawJl 17; (1995) 18 University of New South Wales Law Journal 327; Saku Akmeemana and Melinda Jones, 'Fighting Racial Hatred', in Commonwealth Race Discrimination Commissioner, The Racial Discrimination Act: A Review (1995) 156–62; Luke McNamara and Tamsin Solomon, 'The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?' [1996] AdelLawRw 9; (1996) 18 Adelaide Law Review 259, 278–83; Wojciech Sadurski, Freedom of Speech and its Limits (1999) ch 6; Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 238–43; Dan Meagher, 'What is "Political Communication"? The Rationale and Scope of the Implied Freedom of Political Communication' [2004] MelbULawRw 14; (2004) 28 Melbourne University Law Review 438; Dan Meagher, 'The Protection of Political Communication under the Australian Constitution' [2005] UNSWLawJl 4; (2005) 28 University of New South Wales Law Journal 30.

[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] SydLawRw 14; (1992) 14 Sydney Law Review 163; Kathleen Mahony, 'Hate Vilification Legislation and Freedom of Expression: Where is the Balance?' [1994] AUJlHRights 21; (1994) 1 Australian Journal of Human Rights 353; Luke McNamara, 'The Merits of Racial Hatred Laws: Beyond Free Speech' [1995] GriffLawRw 3; (1995) 4 Griffith Law Review 29; Lawrence Maher, 'Free Speech and its Postmodern Adversaries' (2001) 8(2) Murdoch University Electronic Journal of Law; Dan Meagher, 'So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia' (2004) 32 Federal Law Review 225.

[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 30; 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] UNSWLawJl 15; (1994) 17 University of New South Wales Law Journal 409. 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] INSC 224; [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, [1942] USSC 50; 315 US 568 (1942); Beauharnais v Illinois, [1952] USSC 75; 343 US 250 (1952); Brandenburg v Ohio, 396 US 444 (1969); Cohen v California, [1971] USSC 114; 403 US 15 (1971); Gooding v Wilson, [1972] USSC 64; 405 US 518 (1971); Skokie v National Socialist Party, 373 NE 2d 21 (1978); RAV v City of St Paul, [1992] USSC 99; 505 US 377 (1992); Virginia v Black, [2003] USSC 2763; 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, 17; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 330–2 (Callinan J).

[19] Lange [1997] HCA 25; (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] HCA 39; (2004) 220 CLR 1 ('Coleman').

[21] Coleman [2004] HCA 39; (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] HCA 44; (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] SydLawRw 23; (2006) 28 Sydney Law Review 505.

[22] See Chesterman, above n 5, 44–63; Michael Chesterman, 'When is a Communication "Political"?' (2000) 14(2) Legislative Studies 5.

[23] Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 159 (Brennan J) ('ACTV'); Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 596–8 (Brennan CJ) ('Levy'); Coleman [2004] HCA 39; (2004) 220 CLR 1, 52 (McHugh J); Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 128 FCR 523, 533–4 (Black CJ, Weinberg and Selway JJ). Cf ACTV [1992] HCA 45; (1992) 177 CLR 106, 217–8 (Gaudron J); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 95 (Gaudron J) ('Nationwide News').

[24] ACTV [1992] HCA 45; (1992) 177 CLR 106, 142–4 (Mason CJ), 169 (Deane and Toohey JJ), 217–8 (Gaudron J) 235 (McHugh J); Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 76–7 (Deane and Toohey JJ); Levy [1997] HCA 31; (1997) 189 CLR 579, 647 (Kirby J); Coleman [2004] HCA 39; (2004) 220 CLR 1, 122–4 (Heydon J); Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 200–1 (Gleeson CJ) ('Mulholland').

[25] See, eg, Levy [1997] HCA 31; (1997) 189 CLR 579, 596–9 (Brennan CJ); cf 608 (Dawson J), 624 (McHugh J). See also Coleman [2004] HCA 39; (2004) 220 CLR 1, 50–1 (McHugh J).

[26] See, eg, ACTV [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ), 169 (Deane and Toohey JJ), 235 (McHugh J); Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 77 (Deane and Toohey JJ); Levy [1997] HCA 31; (1997) 189 CLR 579, 614 (Toohey and Gummow JJ), 618–9 (Gaudron J), 647 (Kirby J); Kruger v Commonwealth [1997] HCA 27; (1998) 190 CLR 1, 126–9 (Gaudron J) ('Kruger'); Coleman [2004] HCA 39; (2004) 220 CLR 1, 31 (Gleeson CJ), 110 (Callinan J), 122–3 (Heydon J). Cf Mulholland [2004] HCA 41; (2004) 220 CLR 181, 254 (Kirby J).

[27] See Lange [1997] HCA 25; (1997) 189 CLR 520, 562; and compare the variety of views expressed in Coleman [2004] HCA 39; (2004) 220 CLR 1, 52–3 (McHugh J), 90 (Kirby J), and in Mulholland [2004] HCA 41; (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] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1; Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.

[29] See Levy [1997] HCA 31; (1997) 189 CLR 579, 607 (Dawson J); Coleman [2004] HCA 39; (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] AATA 474; (1997) 145 ALR 464; Brown v Classification Review Board [1998] FCA 319; (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] FCA 1410; (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] FCA 1433; (2003) 134 FCR 334, 354 (Finn J).

[31] ACTV [1992] HCA 45; (1992) 177 CLR 106, 187.

[32] ACTV [1992] HCA 45; (1992) 177 CLR 106, 232; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 206 ('Theophanous').

[33] Lange [1997] HCA 25; (1997) 189 CLR 520, 560; see also APLA [2005] HCA 44; (2005) 219 ALR 403, 422 (McHugh J); Coleman [2004] HCA 39; (2004) 220 CLR 1, 125–6 (Heydon J).

[34] Lange [1997] HCA 25; (1997) 189 CLR 520, 559–60.

[35] Lange [1997] HCA 25; (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] HCA 25; (1997) 189 CLR 520, 560.

[37] [1994] HCA 45; (1994) 182 CLR 211, 264 ('Stephens'); cited in Lange [1997] HCA 25; (1997) 189 CLR 520, 570–1.

[38] ACTV [1992] HCA 45; (1992) 177 CLR 106, 138.

[39] Theophanous [1994] HCA 46; (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, 256–7.

[40] Although see Kruger [1997] HCA 27; (1998) 190 CLR 1, 90–1 (Toohey J), 114 (Gaudron J).

[41] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 123.

[42] Coleman [2004] HCA 39; (2004) 220 CLR 1, 30–1 (Gleeson CJ); APLA [2005] HCA 44; (2005) 219 ALR 403, 412–13 (Gleeson CJ and Heydon J).

[43] APLA [2005] HCA 44; (2005) 219 ALR 403, 422 (McHugh J).

[44] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.

[45] ACTV [1992] HCA 45; (1992) 177 CLR 106, 142 (Mason CJ), 168–9 (Deane and Toohey JJ), 215–7 (Gaudron J); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 122–3 (Mason CJ, Toohey and Gaudron JJ), 164 (Deane J); Stephens [1994] HCA 45; (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane J).

[46] Lange [1997] HCA 25; (1997) 189 CLR 520, 571–2. However, cf Levy [1997] HCA 31; (1997) 189 CLR 579, 596 (Brennan J), 626 (McHugh J), 643–4 (Kirby J); Kruger [1997] HCA 27; (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] HCA 25; (1997) 189 CLR 520, 571–6.

[47] The clearest example of this latter point is Levy [1997] HCA 31; (1997) 189 CLR 579.

[48] [1994] HCA 46; (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] HCA 46; (1994) 182 CLR 104, 329 (Brennan J); see also 365–6 (Dawson J), 395 (McHugh J).

[50] [2005] HCA 44; (2005) 219 ALR 403 ('APLA').

[51] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 123 (Mason CJ, Toohey and Gaudron JJ), discussing ACTV [1992] HCA 45; (1992) 177 CLR 106, 141 (Mason CJ).

[52] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 124, citing Alexander Meiklejohn, Political Freedom (1960) 42.

[53] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 123–5. See, likewise, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1993] FCA 83; (1993) 41 FCR 89, 114 (Hill J).

[54] Theophanous [1994] HCA 46; (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] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 399 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] NSWSC 505; (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] NSWSC 505; (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] NSWSC 505; (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] HCA 12; (1943) 67 CLR 116, 122–3 ('Jehovah's Witnesses Case').

[70] Harkianakis [1999] NSWSC 505; (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] HCA 12; (1943) 67 CLR 116, 123.

[74] Ibid.

[75] See, eg, Coleman [2004] HCA 39; (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] HCA 2; (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] HCA 2; (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] HCA 12; (1943) 67 CLR 116, 126.

[82] State Aid Case [1981] HCA 2; (1981) 146 CLR 559.

[83] State Aid Case [1981] HCA 2; (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, [1947] USSC 44; 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) ch 8.

[85] State Aid Case [1981] HCA 2; (1981) 146 CLR 559.

[86] McDaniel v Paty, [1978] USSC 61; 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 503; Michael Perry, 'Why Political Reliance on Religiously Grounded Morality does not Violate the Establishment Clause' (2001) 42 William and Mary Law Review 663; contrast Robert Audi, 'The Separation of Church and State and the Obligations of Citizenship' (1987) 18 Philosophy and Public Affairs 259.

[87] John Rawls, Political Liberalism (1996) 212–54; John Rawls, 'The Idea of Public Reason Revisited', in Samuel Freeman (ed), The Cambridge Companion to Rawls (2003) 591; see also Charles Larmore, 'Public Reason', in Samuel Freeman (ed), The Cambridge Companion to Rawls (2003) 383–6. 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); Michael Perry, 'Why Political Reliance on Religiously Grounded Morality is not Illegitimate in a Liberal Democracy' (2001) 36 Wake Forest Law Review 217; Jeremy Waldron, 'Religious Contributions in Public Deliberation' (1993) 30 San Diego Law Review 817; Kent Greenawalt, Private Consciences and Public Reasons (1995). 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). See, also, Christopher Eberle, Religious Conviction in Liberal Politics (2002).

[90] Harkianakis [1999] NSWSC 505; (1999) 47 NSWLR 302, 303.

[91] Ibid.

[92] In the Jehovah's Witnesses Case [1943] HCA 12; (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] HCA 9; (1926) 37 CLR 432, 448 (Rich J); Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 143 (Dixon CJ), 152 (Williams J), 154 (Kitto J); Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564, 567, 571 (Barwick CJ for the Court); State Aid Case [1981] HCA 2; (1981) 146 CLR 559, 593–4 (Gibbs J), 621 (Murphy J), 649 (Wilson J); Kruger [1997] HCA 27; (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] HCA 44; (2005) 219 ALR 403, 519 (Callinan J), discussed below.

[96] [2005] HCA 44; (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] UNSWLawJl 49; (2005) 28 University of New South Wales Law Journal 833.

[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] HCA 44; (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] HCA 44; (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] HCA 44; (2005) 219 ALR 403, 487–9, discussed in Aroney, above n 98.

[107] APLA [2005] HCA 44; (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] FCA 1080; (2002) 120 FCR 243, 305; and compare the detailed analysis in Meagher, 'Protection of Political Communication', above n 5, 56, 58–60.

[117] [2004] HCA 39; (2004) 220 CLR 1 ('Coleman').

[118] Coleman v Power [2001] QCA 539; [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] HCA 39; (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] HCA 39; (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] HCA 39; (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] HCA 46; (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] FCA 1080; (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] HCA 39; (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] HCA 39; (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 [2002] HCA 57; 212 CLR 1, 62–3 (Kirby J), 78 (Hayne J).

[149] Coleman [2004] HCA 39; (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] EngR 168; (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] FCA 1080; (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 543.

[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] INSC 224; [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] FCA 1080; (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] FCAFC 16; (2004) 135 FCR 105, 125–6. See also his Honour's remarks at 128 and 131–2 in relation to reasonableness and good faith.

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