The Constitutional (In)Validity of Religious Vilification Laws: Implications for their Interpretation

Abstract

In this article, I address the question whether religious hate speech laws are contrary to the implied freedom of political communication affirmed in the High Court of Australia's decision in Lange v Australian Broadcasting Corporation. First, I argue that the implied freedom can extend, in principle, to religious speech, meaning speech that is motivated by religious belief as well as speech that simply deals with religion or religious topics. In this connection, I maintain that the prohibition on the establishment of religion in section 116 of the Australian Constitution should not be interpreted so as to exclude religiously motivated arguments from federal politics. Second, I argue that although religious vilification laws place a relevant burden upon communication about political or governmental matters, properly interpreted and applied, such laws are reasonably capable of being considered appropriate and adapted to achieving a legitimate objective in a manner which is compatible with the system of representative government established by the Constitution. My conclusion, therefore, is that Australian religious vilification laws ought to be upheld, but only if they are construed so as to require a high threshold to be reached before conduct is found to be an instance of unlawful vilification, and only if the exceptions laid down in the legislation are interpreted widely, so as to protect a wide range of communications on political and other matters.