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
However, s18C does not contemplate offending someone on religious
grounds. So, could Charlie Hebdo be censored for religious
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),
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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