An amendment to the NSW Anti-Discrimination Act 1977, making certain types of speech connected with religion unlawful, commenced operation on 12 November 2023. The amendment, made by the Anti-Discrimination Amendment (Religious Vilification) Act 2023 (No 15 of 2023) (“the ADA”), is a form of “religious vilification” law which has not previously been in force in NSW. It is not as bad as some forms of such laws in terms of its effect on religious freedom, but it is worth being aware of its potential operation. It will be important, for example, for those preaching and teaching the Bible (or other religious texts) to understand what the law does, and perhaps more importantly, does not, prohibit.

Background- religious vilification laws generally

Laws prohibiting “religious vilification” have been in force in a number of Australian States and Territories for some time. In broad terms, the aim of these laws is to forbid public statements that cause harm to members of the community based on their religious conviction or activity. Certain types of speech are prohibited, subject to a number of exceptions designed to protect some aspects of freedom of speech.

In jurisdictions where these laws have been in force for a while (Queensland, Tasmania, Victoria and the ACT) some are coupled with other provisions in the same Act which make it unlawful to discriminate against someone on the grounds of religion (the exception is Victoria, where the vilification legislation is part of a separate Act.) To be clear, religious “discrimination” deals with adverse treatment of someone based on their religion, whereas religious “vilification” deals with statements causing harm. The new provision in NSW, however, is inserted into an Act which does not currently ban discrimination on the basis of religion. It is a “stand-alone” vilification ban, the result of an election commitment made by the current NSW government before taking office.

I have written previously about “religious vilification” laws in a paper which can be accessed here (see pp 7-32 for discussion of these laws.) In that paper I explore some significant cases decided in other jurisdictions under these type of laws. I will provide a brief mention of some of those cases below, as they may provide guidance for NSW authorities considering the new law.

The new law- overview

The new law is contained in Part 4BA of the ADA, and the operational provision is s 49ZE:

49ZE Religious vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of—
(a) a person on the ground the person—(i) has, or does not have, a religious belief or affiliation, or (ii) engages, or does not engage, in religious activity, or
(b) a group of persons on the ground the members of the group—(i) have, or do not have, a religious belief or affiliation, or (ii) engage, or do not engage, in religious activity.

(2) Nothing in this section renders unlawful—
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege, whether under the Defamation Act 2005 or otherwise, in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.

Along with that prohibition, s 49ZD provides a definition of “public act”. This definition covers what one would expect- all sorts of communication to the public including posters, newspaper ads, television spots, internet posts, speaking or making signs in public- but also includes in the term:

(c) the distribution or dissemination of matter to the public with knowledge the matter promotes or expresses hatred towards, serious contempt for or severe ridicule of—
(i) a person on the ground the person has, or does not have, a religious belief or affiliation, or
(ii) a person on the ground the person engages, or does not engage, in religious activity, or
(iii) a group of persons on the ground the members of the group have, or do not have, a religious belief or affiliation, or
(iv) a group of persons on the ground the members of the group engage, or do not engage, in religious activity.

To summarise, the definition of “public act” includes direct verbal or visual communication to a section of the public (para (a) of the definition), conduct which is “observable by the public”(para (b) of the definition, including situations where there was no intention to reach the public directly but there are displays which could be seen by passing members of the public), and “distribution” of material (under para (c)), which would cover leaflet handouts or mailbox drops, so long as under para (c) the person doing the distributing actually knew the nature of the material being disseminated. The definitions here are pretty well identical to definitions of “public act” in other provisions of the NSW ADA prohibiting vilification on the grounds of race (s 20B), transgender grounds (s 38R), or homosexuality (s 49ZS).

The new law- the primary prohibition

The primary prohibition under s 49ZE is that a person (the “inciter”) must not “incite hatred towards, serious contempt for or severe ridicule of” a person, or group of persons (“the victims”), on the grounds of the presence or absence in the victims of a religious belief or affiliation, or on the grounds of their engaging, or not engaging, in religious activity. Note that the religious or other motives of the “inciter” are not the issue; what is significant is that the “victims” are being subjected to incitement of the relevant emotions or activities on the basis of their religion. Notice in this prohibition, then, that there are three separate entities involved: first, the inciter; second, the victim or victims; and thirdly, the persons who are being incited to hold the relevant emotions or engage in ridicule (the relevant “incitees”.) In general terms the incitees will correspond to the “public” (or a subset of the public) to whom the public act is directed or who may be reached by the conduct.

An example of the sort of statement that would pretty clearly breach s 49ZE(1) would be something like “all Catholic priests are pedophiles”, or “all Muslims are terrorists”. Statements like this would probably incite hatred for the people concerned, if believed, or at the very least “serious contempt”. Note however that the “incitement” element must be engaged. A genuine discussion about these matters for other purposes (such as explaining the effect of the law) which included these phrases, but was clearly not aimed at actually inciting the relevant emotions, would arguably not breach the section. (I would maintain, of course, that the first sentence of this paragraph would satisfy this description!)

An important feature of the section is that it addresses an incitement directed to particular persons, not a statement made about a religious doctrine or belief. This distinction was what led the Victorian Court of Appeal in its decision in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 to hold that the relevant Christian commentators on Islam had not been guilty of breaching the Victorian legislation, section 8 of the Racial and Religious Tolerance Act 2001 (Vic).

In that case, a Christian religious group advertised to a Christian audience that it was proposing to run a seminar that would critique Islam and help its listeners understand how to “reach out” to Muslims. Representatives of the Islamic Council of Victoria knew the nature of the seminar, chose to attend, and then took action against the group on the basis of statements that were made critiquing Islam. While some untrue and unhelpful statements may have been made in the course of the lengthy seminar (and in some related material published on a website), most of the comments made were true and were sourced from multiple Islamic authors.

Initially, a tribunal found the pastors involved to be guilty of vilification and ordered them to publish retractions. On appeal the Victorian Court of Appeal overturned the tribunal’s findings of vilification. The matter was referred back to the tribunal, but the parties then entered into a settlement of the proceedings that affirmed their mutual right to ‘criticise the religious beliefs of another, in a free, open and democratic society.’

Nettle JA, as his Honour then was, in the Court of Appeal, noted that the tribunal had failed to distinguish between criticisms of the doctrines of Islam and ‘incitement to hatred’ of persons:

[15] … s.8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s.8 must be applied so as to give it that effect.

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, at [15]

Hence a statement made by a preacher in church, or a bible study leader, that another religion is mistaken, wrong, or likely to lead people away from God, if not accompanied by statements urging the hatred of, or contempt or ridicule for, the adherents of the religion, should not be seen as even prima face breaching s 49ZE(1).

The new law- statements that are not unlawful

In addition to the qualifications noted above, s 49ZE(2) sets out, for avoidance of doubt, a number of circumstances which will not breach the prohibition in sub-section (1). A fair report in the press of what someone else has said will not be unlawful, nor will a statement made which would be subject to a defence of absolute privilege in the law of defamation (if it were defamatory). The most common example of the absolute privilege defence is a statement made in Parliament.

Under para (2)(c), other statements which will not be unlawful include a statement made “reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.” The width of the different ciircumstances which are not prohibited is notable. In particular, we will focus on the category of statements made for “religious discussion or instruction purposes”.

Broadly speaking, this category would seem to include sermons in church (clearly aimed at “instruction”), comments in a small group context where “religious discussion” is taking place, and material presented as part of a children’s program or “special religious education” class in a school. Teaching which expounds, for example, Jesus’ statement that he is the “way, the truth and the life” and that no-one comes to God the Father other than through faith in him (John 14:6), while it may not sit well with other religious groups, would clearly seem to come into this category. Such teaching, to be clear, does not in any event “incite” hatred or contempt or ridicule (rather, the love that God showed the world in offering salvation should motivate believers to work and pray for the salvation of others.) But even if it might have somehow been argued that it was in breach of sub-section (1), this clarification in sub-section (2) should remove that faint possibility.

The only remaining doubt surrounds the phrase “reasonably and in good faith”. This qualification is not uncommon in legislation, but its precise meaning in different contexts will vary, and there is always some uncertainty about how it will be interpreted by a court or tribunal. Is a statement “reasonable” if the decision-maker does not agree with its reasons? Or is the phrase best viewed as simply a way of saying that the person making the statement should not have any “ulterior motives” in making the statement?

Nettle JA in the Catch the Fire case commented on these issues to some extent, and concluded as follows:

98 Of necessity, the standards of an open and just multicultural society allow for differences in views about religions. They acknowledge that there will be differences in views about other peoples’ religions. To a very considerable extent, therefore, they tolerate criticism by the adherents of one religion of the tenets of another religion; even though to some and perhaps to most in society such criticisms may appear ill-informed or misconceived or ignorant or otherwise hurtful to adherents of the latter faith. It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable.

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, at [98] (emphasis added)

There will still be room for debate on what it is “reasonable” to say, but the sort of approach taken here seems sensible.

The new law- enforcement

What are the consequences for breach of s 49ZE? The first point to make is that it does not create a criminal offence. There is a related criminal offence which is committed, under s 93Z of the Crimes Act 1900 (NSW), when someone “by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on … grounds” which include religion. Standing up before a crowd and chanting “Gas the Jews”, for example, would seem to be an offence against this provision.

But s 49ZE, in contrast, is part of a set of provisions which make certain behaviour unlawful, and leave it to someone who has been a victim to commence a civil action for damages against the perpetrator.

Conclusion

There are, as I have previously argued, a number of problems with “hate speech” laws in preventing or chilling legitimate public debate on important issues. However, the new law can be read in light of the important values of free speech supported by our legal tradition, and in particular with a view to not stifling religious freedom to debate significant issues. If so read, it may be useful in reducing the worst excesses of hate directed at others on the basis of their religion. Those who are simply presenting the teachings of the Bible, or other religious texts, should be able to continue to do so in good faith with freedom.