Aly’s self-wedge on figures of speech
By inadvertently calling for a national anti-blasphemy law, Labor’s Anne Aly has exposed the hollowness of her party’s opposition to constructive reform of section 18C of the Racial Discrimination Act.
The member for Cowan told The Australian earlier this week that there was scope to reassess extending 18C-style protections to make it unlawful to offend someone on the basis of religion.
In making her point, Aly said she didn’t understand why “someone can call you a dirty Arab and that be covered under the bill, but if they call you a dirty Muslim, you’re not covered”.
Aly’s position is consistent with Australia’s Grand Mufti, who proffered the same proposal earlier this year.
No one is disputing that people should be free from harassment. But if 18C is extended to make it unlawful to offend religion it would amount to a national anti-blasphemy law.
Such a law would make it almost impossible to discuss religion, particularly with the current interpretation of the act.
Court cases have interpreted whether someone is offended under 18C is based on the attitudes of the targeted community.
So in the case offered by Aly, whether an expression offends Muslims would be based on the attitudes of Muslims and would lead to people being hauled before the Australian Human Rights Commission, and possibly the Federal Court.
Of course, the law wouldn’t just censor offensive debate about Islam, but all religions.
The regular catchcry from defenders of the law is that section 18D protects free speech by permitting expressions that are made “reasonably and in good faith”.
The argument has always been fallacious.
Take the satirical Broadway play The Book of Mormon.
The play would clearly offend and insult and possibly humiliate members of the Church of Jesus Christ and Latter Day Saints.
The producers would struggle to defend that they have acted “reasonably and in good faith” when it is an intentional two hours and 20 minutes of deliberate ridiculing and mocking of the tenets of their faith.
Examples such as these demonstrate the abject folly of using “offend”, “insult”, and “humiliate” as tests in law. They are subjective and focus on the expression of an opinion rather than harassment, which focuses on conduct.
The theory behind such laws is that they are necessary to protect vulnerable minorities but they also protect the same communities from harsh and sometimes necessary criticism; and particularly when a community turns from being oppressed to the oppressor.
Minority groups, ethnic or religious, often have negative views towards other vulnerable communities.
Many ethnic communities culturally denigrate or treat women differently from men, and women aren’t a minority.
Similarly, many ethnic and religious communities have a negative view towards homosexuals.
And often religious and ethnic communities don’t like each other and can have actively hostile views towards each other.
These topics should be open to debate without having to prove criticism is reasonable and in good faith.
After the absurdity of her proposal was exposed, Aly has rejected any suggestion she wanted “to extend section 18C of the Racial Discrimination Act to cover religion”.
With such a simple statement, Aly confirmed how vacuous and opportunist Labor’s consideration of 18C reform has been.
It either has to explain why offending someone on the basis of race, colour, national or ethnic origin is worse than doing the same towards religion or acknowledge being offended is the wrong test in law.
Instead Labor is indulging cheap party tricks and rhetorical questions about “what people want to say that they currently can’t” to oppose change.
Recently, Labor legal affairs spokesman Mark Dreyfus presented at a Jewish community debate on 18C reform in Melbourne.
An audience member asked whether he thought there should be equivalent 18C protection to make it unlawful to offend people on the basis of their age, disability, gender and sexual orientation.
Dreyfus didn’t reject the idea, and confirmed a future Labor government would look into it.
Unsurprisingly, religious leaders have since strongly questioned granting the same legal privileges they want to enjoy to others because it would stop them taking moral positions in public debate.
Now both Dreyfus and Aly are caught in hypocritical incoherence. They now think making it unlawful to harass someone on the basis of race amounts to licensing “hate speech”, and concurrently argue making it unlawful to offend any other section of society is an unsupportable restriction on free speech.
The irony is that every example Aly has put forward about the conduct she wants made unlawful is harassment; which is exactly the test proposed by the Turnbull government’s considered and constructive reforms.
Instead of pandering to victimhood Dreyfus, Aly and Labor should be supporting a sensible and consistent test to protect people from harassment.
Tim Wilson is federal Liberal member for Goldstein and was formerly Australia’s Human Rights commissioner.