Business Law Articles
By: HHG Legal Group
West Perth, Australia
While the Western world has generally championed the virtue of freedom of speech in the aftermath of the Charlie Hebdo shootings, the protests erupting in other parts of the world since the release of the magazine’s latest edition highlight the flip-side of the freedom of speech debate – the right to freedom from racial and religious vilification.
The distinction between racial and religious vilification is often blurred. For example, these protests relate to Carlie Hebdo’s portrayal of Muslims, especially the depiction of the Prophet Mohammed. However, the typical Muslim illustrated by the magazine is Middle Eastern, despite the fact that the Middle East and North Africa represent only about 20% of the world’s Muslims. Does this then constitute racial or religious vilification, or both?
The distinction is important in determining whether Charlie Hebdo could be censored in Australia. It is unlikely that the Charlie Hebdo cartoons would be censored in Australia on racial discrimination grounds under s18C of the Racial Discrimination Act (Cth) (http://bit.ly/1DHUpAC). However, s18C does not contemplate offending someone on religious grounds. So, could Charlie Hebdo be censored for religious vilification?
The answer: unlikely.
Unlike racial discrimination, there is no Commonwealth legislation dealing with religious vilification, although the Australian Human Rights Commission Act (Cth) prohibits religious discrimination in the context of employment. Likewise in Western Australia, the Western Australia Equal Opportunity Act (WA) deals with religious discrimination in employment matters etc, but is silent on religious vilification. As such, Charlie Hebdo could not be censored in WA on religious discrimination grounds. Moreover, most of the other Australian jurisdictions have not legislated against religious vilification. The exceptions are Victoria, Queensland and Tasmania, which have outlawed religious vilification in the Racial and Religious Tolerance Act (Vic), Anti-Discrimination Act (Qld) and Anti-Discrimination Act (Tas), respectively.
Similar to the Racial Discrimination Act (Cth) in regards to racial vilification, the relevant legislation in Victoria, Queensland and Tasmania make an exception for religious vilification in the course of ‘artistic work’ that is distributed ‘reasonably’ (except Tasmania) and in ‘good faith’. Although this exception has not been tested in the respective courts, the State courts will likely follow the jurisprudence set by the Federal Court with regard to racist newspaper cartoons. If this is the case, it is unlikely Charlie Hebdo would be censored in these jurisdictions.
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