About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, November 07, 2024

My Submission re the Misinformation and Disinformation Bill

 TO: Committee Secretary

Senate Standing Committees on Environment and Communications
PO Box 6100
Parliament House
Canberra ACT 2600

 

FROM: Dr Russell Blackford

 

Submission re the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024

 

Introduction

 

1. First, I am grateful that there is an opportunity to comment on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (“the Bill”) before it is voted into law. However, I am concerned at the short time that has been made available for public consultation on a complex proposal of over 70 pages with serious implications for freedom of speech and technological innovation in Australia and beyond.

 

2. I am an academic philosopher with a special interest in legal and political philosophy, including issues relating to liberal theory, secular government, and traditional civil and political liberties such as freedom of speech. My formal qualifications include an LLB with First Class Honours from the University of Melbourne, a Masters degree in bioethics from Monash University, and a PhD in philosophy, also from Monash University, where my doctoral dissertation applied ideas from liberal theory and philosophy of law to certain topical issues in bioethics. I am admitted to legal practice as a barrister and solicitor of the Supreme Court of Victoria, and in the past I have practised with a major commercial law firm in Melbourne.

 

3. I am the author of numerous books including Freedom of Religion and the Secular State (Wiley-Blackwell, 2012), Humanity Enhanced: Genetic Choice and the Challenge for Liberal Democracies (MIT Press, 2014), The Tyranny of Opinion: Conformity and the Future of Liberalism (Bloomsbury Academic, 2019), and How We Became Post-Liberal: The Rise and Fall of Toleration (Bloomsbury Academic, 2024).

 

4. Although I have retired from paid employment, I remain active in research and publishing at the intersection of philosophy, law, and public policy. I hold an honorary position as Conjoint Senior Lecturer in Philosophy at the University of Newcastle. I do not, of course, purport to represent the views of the university in any way.

 

Inadequacy of consultation to date

 

5. I take a broad view of the law, and of its history, justifications, and purposes. In this instance, however, I am most concerned by the complexity of the system of regulation set out in the Bill and by the scheme and wording of the Bill itself, which defy interpretation and would inevitably create confusion if their meaning were tested in the courts. Even the simplified outline provided in the Bill’s opening pages shows that a complex and burdensome regulatory system has been devised.

 

6. Given this legal and administrative complexity, it would have been advisable to establish a process for extensive consultation with stakeholders and the general public brefore reaching this point. On 19 September 2024, the Bill was referred to the Environment and Communications Legislation Committee, which does allow an opportunity for public submissions. However, the deadline is remarkably short, since submissions close on 30 September 2024. With all respect, this is a manifestly inadequate time for members of the public to study and try to understand the scheme of the Bill and to consider its merits. At the very least, I submit, a more extensive period should now be made available for proper consultation with interested members of the public.

 

A hindrance to public discussion and technological innovation

 

7. Meanwhile, whatever the subjective intentions behind it, the Bill appears to show hostility to digital communications platforms (“digital platforms”). Indeed, the provisions of the Bill seem almost punitive. The requirements are so detailed and burdensome, with so many points where misunderstandings of its intent could arise (and with so many civil penalty provisions at every stage of its processes), that the overall regulatory policy seems to be to treat digital platforms as inherently dangerous and to attempt to hinder their operation in Australia. Moreover, even if very large platforms find the resources to comply, it is difficult to imagine smaller players entering an industry that is governed by such a regulatory system. The likely effect of the Bill will be to restrict public discussion and disincentivise technological innovation.

 

8. This should be understood against a background where the emergence of digital platforms has brought significant benefits along with some downsides. In particular, the emergence of these platforms has enabled a remarkable expansion of the sphere of public discussion comparable to the emergence of a recognisable public sphere in eighteenth-century Europe or even to the invention of the printing press in the fifteenth century. Digital platforms have provided opportunities for public discussion that were previously available only to a much more restricted group (e.g. politicians, academics, professional broadcasters and journalists, and celebrities of various kinds). The Bill gives no sense that digital platforms have, in fact, brought democratic benefits. Instead, it pervasively insinuates that they are a menace to the welfare and safety of Australians. It creates a cumulative impression that these platforms ought to be viewed with suspicion and subjected to a harsh level of control.

 

9. The extensive new powers granted by the Bill to the Australian Communications and Media Authority (“ACMA”) would make it, in effect, an Orwellian Ministry of Truth, involved in detailed regulation of what can or cannot be said in public discussion. The Bill grants ACMA a power to write codes binding upon particular digital communications providers where it is not satisfied with their own respective codes. This makes it a powerful arbiter of the boundaries of truth and falsity. That is a frightening power to grant to any administrative agency. The Minister is also given an extraordinary power to decide matters to be taken into account in determining whether speech is reasonably likely to cause or contribute to serious harm. Again, this is a frightening power to hand to a member of the executive government.

 

10. I do not suggest that these new powers would be wielded in bad faith or necessarily in an authoritarian spirit. They would, however, inevitably be wielded with biases reflecting the ideologies of current and future governments and the internal culture, as it manifests over time, of ACMA.

 

11. A recurrent problem with all statutes in Australia that seek to narrow the boundaries of free discussion is that they tend to restrict speech using sweeping statutory language while offering some defences or exemptions that are also cast in broad language. The outcome is that it’s unclear exactly what speech is intended to be proscribed and what speech remains free. This undermines the rule of law, since it is not knowable in advance just what legal obligations the law imposes: the law ends up meaning whatever the courts say it means after deciding how narrowly or expansively to read various items of terminology in the respective statutes.

 

12. Where laws restricting speech are unclear, some individuals and organisations might seek to test their boundaries. The majority, however, will respond in a risk-averse manner to avoid possible prosecution or civil litigation, and their legal advisors are likely to press on them exactly that approach. There might even be some circumstances where that seems like a good outcome, but this situation is not one of them. In this case, the effect will be that (most) digital platforms will adopt a risk-averse approach to interpreting the law, with the result that they will develop overly restrictive codes for their own protection – and this, in turn, will chill public discussion and freedom of online speech in Australia.

 

The core intention of parliament

 

13. I do understand that false information spread maliciously online can cause very serious harms to individuals, or in some cases to an entire society’s economy and/or its social and physical infrastructure. I am not opposed to the core intention of the parliament to attempt to restrict this.

 

14. Nor am I entirely out of sympathy with the definition of serious harm in section 14 of the proposed Schedule 9 to the Broadcasting Services Act 1992. However, the current drafting of this definition will cause confusion (and once again, will lead to risk-averse interpretations of the law and an unnecessary chilling of free speech). One obvious improvement to section 14 would be to simply renumber items (g) and (h) as a new (a) and (b), making clear that they are not separate items of the same order as the first six (i.e. (a)–(f)), but are additional conditions governing all six of the first listed items. Alternatively, some other drafting device could be used. Either way, the point here is that the meaning should be clear to everyone, not just to some Australian lawyers, that “serious harm” is harm that falls within one of the items listed (a)–(f) and also rises to the high level of the current (g) or (h).

 

15. Although it is clear enough to me that this is the meaning of the existing language in the Bill, I don't expect it will be clear to most ordinary people who are not legally qualified, to the staff of the digital platforms themselves (who are expected to devise systems to carry out compliance with these provisions), to ACMA staff as the agency adapts and responds to its new responsibilities, to journalists attempting to inform the public about the content and meaning of the legislation, or even, in all cases, to the courts (which sometimes prove themselves capable of interpreting legislation in unexpected and expansive ways).

 

16. Furthermore, even if a drafting technique were used to make the intent clearer, it should be kept in mind by legislators that we live in an age of concept creep when any language relating to harm or serious harm – or even to such expressions as “severe consequences” or “significant and far-reaching consequences” – is likely to be given an expansive meaning. Unfortunately, there is a limit to how strong language can be made to ensure that it does not lend itself to expansive interpretations, but as a further safeguard to the wording of a revised or replacement Bill, the accompanying explanatory memorandum could emphasise that these words are meant to establish a particularly high threshold. The explanatory memorandum could give examples of what does and does not fall within the words of the Bill. For example, the words of section 14 of the Schedule would no doubt include a mass panic, shut-down of an entire city, and a deadly stampede with many casualties as people reacted to false reports of an imminent nuclear attack on Sydney. By contrast the words of section 14 would not include widespread but mostly peaceful opposition to the government’s response to a particular public health crisis.

 

17. I take it that the main purpose of the Bill is to protect the public from false reports that could foreseeably cause extraordinary harms (such as my example above of disinformation about an imminent nuclear attack on Sydney). If that is so, the legislation could focus narrowly on this issue, and the point would be to require digital platforms to have plans to minimise these kinds of extreme, probably malicious, and in any event false reports. If that is so, there is no need for many current provisions that are peripheral to this core.

 

18. Thus a revised or replacement Bill could be drafted in a way that is perhaps half of the Bill’s present length. It could give a clearer indication of its core concern, and that it is not intended to chill public discussion or to stifle technological innovation. A revised or replacement Bill could establish a much simpler regulatory scheme than is presently contemplated. The system and the Bill could be crafted to reassure the industry and the Australian public that robust public discussion and the emergence of an expanded public sphere are welcomed in Australia rather than being viewed with suspicion.

 

19. If this approach is taken, much of the current Bill can be put aside. The current version can be replaced by a much shorter and more workable document. There would, for example, be no need for sections 17–24 of Schedule 9. In that respect, note that the nature of any dangers from participation on digital platforms is highly controversial and is the subject of much ongoing research and discussion. There is no point in requiring these platforms to publish their own (possibly idiosyncratic and controversial) assessments of these dangers (with ACMA apparently having a power to demand “better” assessments), and none of this is relevant to what I understand to be the Bill’s core purpose. Likewise, there is no need or point to requiring digital platforms to publish media literacy plans that are likely to be idiosyncratic and controversial.

 

20. It is not at all clear at this juncture just what is required to impart appropriate media literacy to the general public. However, governments have enormous resources to communicate with the public and to shape the curricula of education systems at state and federal level. If governments have their own views about either the dangers of participating in online discussion or the kind of “media literacy” required for self-protection online, then it is up to them to communicate these views using their own resources.

 

21. Again, if the core purpose of the Bill is to require digital platforms to develop and implement plans to minimise the kinds of false reports that foreseeably cause extraordinary harms, the Bill need not contain detailed procedures that regulate the drafting and approval of these plans. A revised or replacement Bill could simply require that plans be in place by a nominated date not too far in the future, that they be registered with ACMA (which would check them for their likely efficacy), and that any non-trivial changes to these plans also be approved by ACMA – but with a streamlined process for approval that could be turned around in a matter of days with a few phone calls and quick lodgement of documents.

 

22. In short, there is no need to hamstring digital platforms with extensive prescription of how they go about formulating their plans as long as the plans themselves meet a certain standard of likely efficacy. The parliament should expect ACMA to develop expertise on this aspect, taking into account international practice.

 

23. I recommend starting again with the aim of producing a much shorter Bill that has a clear and narrow purpose and involves no display of suspicion and hostility to digital platforms. There should be an emphasis on the need to prevent the most extraordinarily dangerous kinds of false reports – something that no one disagrees with – and on the legislature’s positive attitude to public discussion and technological innovation. In that form, a revised or replacement Bill would look more like an attempt to establish a partnership with the major digital platforms than – like the current Bill – the work of a highly suspicious government taking an adversarial and provocative stance towards them.

 

Professional news content should not be exempted

 

24. At the same time, current exemptions relating to professional news content ought to be removed. In its current form, the Bill gives an impression of special solicitude to information that has a particular provenance, as opposed to material of a particular kind such as parody, satire, academic discussion, religious doctrine, etc. Content originating from professional news providers can be just as false and dangerous as content from other sources. We might hope that it would more often be accurate than content from other sources, but on the occasions when it is inaccurate it is especially dangerous because it comes from sources with reputations for being accurate and authoritative.

 

25. If there is any doubt that material disseminated online after originating from professional news sources can be dangerously inaccurate, consider the following example. An explosion happened in the courtyard of the al-Ahli Arab Hospital in Gaza City in October 2023. Following this, revered news outlets such as the New York Times and the BBC attributed the explosion to an Israeli airstrike, falsely reported the destruction of the hospital itself (with misleading imagery), and provided readers/viewers with a greatly inflated toll of deaths and injuries. There is still some debate over the cause of the explosion, but it was likely an errant rocket fired by a terrorist organisation operating from within Gaza rather than an airstrike by Israel. This kind of inaccurate and irresponsible news reporting can lead to riots and other violence, and when it happens it is at least as great a danger as false information from less prestigious sources. Whatever plans are adopted by digital platforms to protect the public from false reports that could foreseeably cause extraordinary harms, these plans should not exclude scrutiny of reports from professional news outlets.

 

An international dimension

 

26. There is also an international dimension to this legislative exercise. It is not clear how digital media companies that operate worldwide are supposed to comply with detailed systems of regulation, such as set out in the Bill, that might be enacted by each of the world’s countries and might impose very different or even mutually contradictory responsibilities. Once again, that might not matter if digital platforms were inherently dangerous and were rightly viewed with suspicion. As we’ve seen, however, these platforms have significant democratic benefits. Australia should not act so as to be part of an accumulating international problem that hinders the platforms’ operation and hence puts their democratic benefits at risk.

 

27. Moreover, each time a liberal democracy such as Australia enacts legislation that suggests hostility to digital platforms, and negatively impacts their ability to operate freely, it provides a precedent that other nations can appeal to. The world’s dictatorships and theocracies can argue that if legislation of this kind is good enough for the likes of Germany and Australia it is good enough for them, notwithstanding that “false information” laws in dictatorships and theocracies are designed to suppress any speech that dissents from the programs and ideologies of their governments. To set a good international example, Australia should restrain itself and enact legislation aimed at controlling only the most clear-cut and seriously harmful false content, while imposing only the minimum necessary burden on the operation of digital platforms.

 

Final observations

 

28. Finally, I’ve mentioned that there have been some downsides to the emergence of digital platforms. These have included a generally abusive environment of discussion in many cases, which can have the effect of driving some people away from participating. In some cases, individuals have been singled out for public shaming by online campaigns directed against them personally (in passing, it’s worth taking note that professional journalists have been deeply implicated in some of these destructive campaigns against individuals, as with the notorious cases involving Justine Sacco and Tim Hunt). The Bill does nothing to address this genuine downside of digital platforms, and it is doubtful that very much can be done apart from attempting to create a culture where such nastiness and cruelty are widely regarded with disdain.

 

29. However, it is clear enough that many participants in public discussion on digital platforms act in this manner because they see themselves as having become political players in a small way. In recent publications, I’ve argued in support of a morality of public discussion, such as identified by John Stuart Mill in On Liberty, whereby participants discuss ideas with honesty, good will, open minds, and tolerance for others, fairly interpreting and representing what their opponents are saying, and acknowledging whatever strengths their opponents’ arguments might have. If they were following such a morality of public discussion, participants would focus on issues and arguments, and would avoid efforts to stigmatise and destroy their opponents as individuals.

 

30. It is, however, difficult to make this ideal seem attractive when nothing like it is followed by professional politicians in Australia and other liberal democracies, who thereby set a bad example. One positive step that members of the Australian Parliament could take would be simply to commit themselves to setting a good example to the general public in this country when it comes to ethical, and at least minimally civil, participation as discussants within the public sphere. This might be of more social value than any number of detailed statutes that attempt to regulate and constrain free speech.

 

Yours faithfully,

Russell Blackford

(Dr Russell Blackford, Conjoint Senior Lecturer in Philosophy, University of Newcastle)

30 September 2024

Thursday, March 21, 2024

Vale, Felix!

This plucky little blog began life almost exactly 18 years ago with a cluster of posts on 26 March 2006 - including one that introduced our (then) young cat Felix (the photo is of my sister, Beverley, on the left; my wife, Jenny; Felix, in Jenny's arms; and Bev's then husband, Ross - taken by me in our house at the time, in Albert Park, Melbourne).



Alas, years have passed, and I'm sad to announce that we finally lost the company of Felix on 16 February 2024. We had to get him put to sleep permanently on that day, as he'd reached a point where life was just too painful and burdensome for him. He'd made it to 18 1/2 years, which is a good innings for a cat, but too many things were going wrong for him. We might have been able to nurse him through a few more months with heroic measures, but he would have been miserable, and Jenny was especially (and correctly) clear that we shouldn't inflict that on him.

Felix was always pampered. In turn, he looked after us, in his way, for a very long time. He always provided happy moments in our day, even in the most otherwise-difficult times that we've faced since we bought him way back in 2005. We won't be replacing him immediately, and the house seems a bit empty at the moment without our little furry critter getting underfoot, wanting to watch TV with us (he could never understand why we'd want to work on our computers when we could watch TV with him), politely asking us for more breakfast/second breakfast/lunch/dinner/second dinner/supper, etc., and generally being loveable.

Vale, Felix!

Thursday, March 02, 2023

My (hilariously inaccurate) biography according to ChatGPT

Warning, what follows is what ChatGPT came up with when I asked it to write a biography for me. It sounds very plausible and some of it is, indeed, based on reality, but it is mainly untrue. Do not rely on it or on any bio of anybody that you suspect ChatGPP has produced. I'm sure this generalizes much more widely. ChatGPT has a pretty good prose style but can't be relied on for factual claims.

(I now fear that simply by publishing this hilariously inaccurate biography I'll be reinforcing it. Oh well ...)


Russell Blackford is an Australian philosopher, literary critic, and writer born on October 27, 1954, in Sydney, Australia. He is known for his contributions to the fields of ethics, political philosophy, and philosophy of religion, as well as his work as an author and critic of science fiction, fantasy, and horror literature.

Blackford completed his Bachelor of Arts degree in English Literature and Philosophy at the University of Sydney in 1977, followed by a Master of Arts degree in Philosophy in 1981. He later received a PhD in the same field from La Trobe University in Melbourne, Australia, in 1994. His doctoral thesis was titled "The Mystery of Moral Authority".

Blackford's academic career has included teaching positions at several universities in Australia, the United States, and Europe, including the University of Melbourne, Monash University, and the University of New England. He has published extensively in academic journals and edited collections, with a particular focus on ethics, political philosophy, and the intersection of science and religion.

In addition to his academic work, Blackford is also a prolific writer and editor of science fiction, fantasy, and horror literature. He has authored several books, including "The New Mythology: An Anthology of Modern Myths" (1997), "1001 Nights in the Iraq War" (2007), and "Freedom of Religion and the Secular State" (2012), and has edited numerous anthologies of science fiction and horror.

Blackford is an active member of the Australian Skeptics and the Secular Party of Australia, and has been a vocal critic of pseudoscience and supernaturalism. He has also been an advocate for secularism and humanism, and has argued for the separation of church and state in political and legal matters.

Today, Blackford continues to write and publish in both academic and popular contexts, and is widely regarded as one of Australia's most prominent public intellectuals. He currently resides in Newcastle, New South Wales, where he teaches philosophy at the University of Newcastle.

Tuesday, May 24, 2022

Interview with Atheists for Liberty

I have a new interview online - this time with Thomas Sheedy from the American organization Atheists for Liberty. Check it out here on YouTube! 

Topics include the implosion of the New Atheist movement and why it happened, the phenomenon of cancel culture and whether anything can be done about it, differences between the political culture of the US and those of other Western liberal democracies, and much more. I enjoyed doing this interview, and found Thomas to be a pleasant and well-informed interviewer. I suspect that he and I would have found some political and philosophical differences if we'd dug down more deeply into this aspect. Although he's strongly opposed to the sort of theocratic thinking that is so dominant on the right wing of American politics, he supports the Republican Party, which suggests he may have some conservative values that I don't share.

But that's partly the point. We should be able to speak respectfully and seriously - and even form alliances on some issues - with people who may not share all of our values or all of our views over hot-button social, political, cultural, and philosophical issues. That is also what I suggest in the next-to-last chapter of The Tyranny of Opinion when trying to describe a path forward that accommodates non-conformity and dissent.

Wednesday, February 09, 2022

Faculty letter in support of Stephen Kershnar

I have signed this letter, published by the Foundation for Individual Rights in Education, in support of Professor Stephen Kershnar. Professor Kershnar has come under attack as a result of a video that you can listen to here (it seems to have been removed from YouTube after much back and forth with appeals and counterappeals). He is interviewed on the Brain in a Vat podcast about his philosophical work scrutinizing various sexual and other taboos and shibboleths. Although his work deals with emotionally inflammatory topics, I have looked into the issue and concluded that his research is properly rigorous, scholarly, and philosophical. He is not a mere provocateur trying to upset people.

In this particular case, the attack on an academic seems to have come mainly from the political Right. However, I have a principled stand on these issues, irrespective of the political direction where the attempts come from to ruin people's careers over their legitimate opinions and their public discussions of them. Compare my support in the past for Rebecca Tuvel, Kathleen Stock, and others.

Thursday, January 13, 2022

My submission to the Senate Standing Committee on Legal and Constitutional Affairs

I have sent a submission to this committee, which is currently inquiring into the Australian government's package of Bills to introduce federal legislation on religious discrimination. The Committee has gradually been publishing submissions here - it looks as if they are publishing all submissions received from organizations and a selection of those received from individuals. My submission, if you care to broach it, is number 180.

At the time I wrote the document, I had read a large number of submissions to the parallel inquiry by a different parliamentary committee (see my own submission here) plus a smaller number of the submissions to the Senate Standing Committee on Legal and Constitutional Affairs. Since then, as more submissions have been published, I've read most of them and have learned a few points that might have made me change some things if I'd had the benefit of reading all the other submissions first.

For example, I was unaware when I put in my submission that the legislative package provides for a review of the legislation two years after it comes into force. Given that, my recommendation that there be a review of the legislation three years after it comes into force, in order to consider how it is operating in practice, looks a bit silly. Oh well.

I have also seen some useful commentary on whether section 12 of the main Bill achieves its purpose of overriding certain state legislation, or whether it is drafted in such a way that it looks more like an attempt to amend the state legislation (for more, see submission number 31 by Professor Anne Twomey). The latter, or anything like it, is not something that the federal parliament can do. Arguably, the section should be modified so that it more clearly provides rights that then prevail over the state legislation. This is a technical issue in Australian constitutional law, but I think Professor Nicholas Aroney (see submission number 145) has probably been correct to respond by providing some alternative wording for the section.

It also looks as if I was wrong in thinking that, in the kinds of circumstances that have allegedly been arising, "no Muslims" policies adopted by shops and restaurants are likely already unlawful under federal law. There is relatively recent legal authority that seems to settle this issue the other way. But in any event, my recommendation did not rely on this one way or the other, as you'll see if you make it to the end. I recommended that these allegations be investigated and, if needed, specifically addressed to ensure that there are laws to prohibit such abuses even where there are no state laws that currently apply.

Otherwise, at this stage, I think the submission - all 22,000 words of it - is solid, especially for something that I wrote very quickly over the Christmas/New Year break.

I support provisions that will lessen some legal restrictions on speech that either advocates or criticizes religious views. I think that much of the opposition to this is far-fetched and illiberal. Much of it is based on misconceptions. More generally, however, I don't support the enactment of this comprehensive legislative package at this point of time. I am open to argument on many of the issues, but those issues, and the draft statutes themselves, are highly complex, and I don't see any immediate prospect of getting them "right" and in a form that will achieve a wide measure of community acceptance. Much of what is in them, as well as much that is not dealt with, needs much more extensive academic, political, and community debate.

Part of the problem, as I emphasize in my submission, is that religion is not like race or sex. Religious beliefs are highly controversial and highly motivating. In a sense, religions are more like political ideologies than like races. Each religion purports to be the true one, and the right to proclaim your religious beliefs and insist they are true is an important aspect of religious freedom. There should be room for vigorous public discussion of religion and religions, including their advocacy and also including views that challenge to them

While religious freedom is important, this is a freedom from religious persecutions and impositions by means of state power. It is also a freedom that includes freedom of religious speech and association, which in turn implies some ability to discriminate in order to preserve a group of like-minded people. It also implies an ability to engage in public debates about religion that might become disrespectful, uncivil, immoderate, and even hurtful. In short, there is a tension between religious freedom (including freedom from religion) and protection from religious discrimination. While I have ideas about how that tension should be resolved in various situations, this is something on which it's going to be extremely difficult to obtain either an obviously correct answer or a social consensus within a liberal democracy.

Some parties seem to think that an anti-discrimination statute dealing with religion could simply use existing Australian statutes, such as those prohibiting racial discrimination and sex discrimination, as a template. I disagree. I think that idea shows a failure of understanding in respect of religion and/or a failure to take the phenomenon of religion seriously. Any such simple approach could have far-reaching effects on freedom of association and freedom of speech.

I'll be watching developments closely and will doubtless have more to say about them from time to time.

Tuesday, January 11, 2022

New paper on radical enhancement: "Destiny and Desire"

A new paper from me on radical enhancement: "Destiny Destiny and Desire: How To Think About Radical Enhancement." This is published in the Journal of Ethics and Emerging Technologies (the former Journal of Evolution and Technology, now under the editorship of Mark Walker).

For more on the same theme - though the article covers a fair bit of different ground - you can see my latest book, At the Dawn of a Great Transition: The Question of Radical Enhancement.

Friday, December 31, 2021

My essay "The Making of a Cancel Culture" in TPM

My essay "The Making of a Cancel Culture" has appeared online in The Philosophers' Magazine. Check it out.

Sample:

In this essay, largely aimed at academic philosophers, I focus on university campuses. However, the present-day culture and praxis of cancellation extend much further.

In many cases, we’re entitled (relative to widespread norms of free and candid speech) to express ideas that are not especially scholarly, or not scholarly at all, but have a place in the rough-and-tumble of everyday debate. Some kinds of vilification of individuals or groups, or violations of personal privacy, might lie beyond the pale of democratic toleration, but wherever, exactly, the boundaries lie, this should still leave a vast zone of expressive freedom. When the stakes seem high enough, however, it’s tempting to contract the zone of what feels tolerable, and to excuse cruel behaviour to people who seem like our enemies.

Tuesday, December 14, 2021

Submission to Human Rights Committee now appearing

Submissions to the Parliamentary Joint Committee on Human Rights, relating to the Australian federal government's legislative package on religious discrimination, are now appearing on the relevant parliamentary site. So far, this includes my own submission as well as others by several academics and organizations.

Saturday, December 11, 2021

My submission to the latest inquiry on the religious discrimination Bills

 TO: Committee Secretary

Parliamentary Joint Committee on Human Rights
Department of the Senate
PO Box 6100
Parliament House
CANBERRA ACT 2600
AUSTRALIA

FROM: Dr Russell Blackford

30 Birchgrove Drive
Wallsend, NSW 2287

E-mail: russell.blackford@newcastle.edu.au

Phone: [redacted]

Inquiry regarding Religious Discrimination Bill 2021 and related bills

Introduction

1. I refer to the current inquiry relating to the government’s religious discrimination legislative package, including the Religious Discrimination Bill 2021 (“the Bill”), and thank you for the opportunity to make this submission.

2. I am an academic philosopher with a specialization in legal and political philosophy, including issues relating to liberal theory, secular government, and traditional civil and political liberties such as freedom of religion and freedom of speech. I have published widely on these topics. In particular, my published books include Freedom of Religion and the Secular State (Wiley-Blackwell, 2012) and The Tyranny of Opinion: Conformity and the Future of Liberalism (Bloomsbury Academic, 2019). My formal qualifications include an LLB with First Class Honours from the University of Melbourne and a PhD in philosophy from Monash University, where my doctoral dissertation applied ideas from liberal theory and philosophy of law to certain topical issues in bioethics.

3. I also have extensive practical experience as an industrial advocate working in the federal jurisdiction and as a workplace relations solicitor with a major commercial firm in Melbourne. I have considerable expertise in workplace relations and employment law, and in anti-discrimination law.

4. I currently hold an appointment as Conjoint Senior Lecturer in Philosophy at the University of Newcastle, though I do not, of course, purport to represent the views of the university.

Scope of submission

5. The draft Bills are complex and much of their content deals with issues arising from tensions between different strands of public policy. As a result, there is much room for argument about the values and priorities that have shaped the current legislative package. It is noteworthy that the Bills do not generally deal with the topic of freedom of religion, which is a freedom from persecution or imposition of religion by state power. They do not, for example, seek to strengthen and extend the protection given by s. 116 of the Australian Constitution. Instead, they are a contribution to anti-discrimination law.

6. In this brief submission, I will confine myself to just two key areas of concern: first, the definition in the Bill of “religious belief or activity”; second, the nature of a “statement of belief” and the importance of allowing vigorous public discussion and debate about religion.

Religious belief or activity

7. Fundamental to the legislative package is protection against discrimination in employment, and in various other domains of public life (education, accommodation, provision of goods and services to the public, etc.), based on religious belief or activity as defined. The definition of “religious belief or activity” is as follows: 

(a) holding a religious belief; or

(b) engaging in religious activity; or

(c) not holding a religious belief; or

(d) not engaging in, or refusing to engage in, religious activity.

 8. The first problem with this definition is that it does not clearly include the communication (or expression) of religious beliefs. An employer might, for example, claim that it has not unlawfully discriminated against an employee because of the mere fact that she is known or understood to hold a certain belief, or because of her participation in clearly religious activities such as ritual and worship. The employer might argue that it has lawfully discriminated against the employee because of her communication of her belief, or because of some aspect of her communication of it, such as its time, place, tone, or manner. In response, a court might hold that the communication of religious beliefs falls within “religious activity” or that it is implicit within “religious belief”. However, that is not clear and it cannot be assumed.

9. For reasons that are unclear to me, the Bill currently protects communication of religious beliefs in relation to the rules of qualifying bodies, but not in relation to areas such as employment. Compare s. 15 with, for example, s. 19. At best, this is confusing.

10. The legal effect of this difference is open to more than one interpretation. On one construction, however, it suggests that communicating religious beliefs is not included within the definition of religious belief or activity, but is a separate topic. If so, s. 15 provides that the rules of a qualifying body cannot generally forbid communication of religious beliefs, but it seems that an employer’s code of conduct probably can prevent communication of religious beliefs, even outside the workplace (or to use the language of the Bill, outside of practising the employee’s profession, trade, or occupation). In that case, this anomaly should be corrected.

11. Even if it were clear that communicating religious beliefs falls within “religious belief or activity”, consider the situation of a person who does not hold any religious belief or engage in any religious activity, but who does hold philosophical beliefs that are critical of religion and/or provide a non-religious alternative worldview, such as some form of secular humanism or philosophical naturalism. This person might communicate her beliefs about religion in public discussion and might engage in other activities that are aimed at undermining the credibility of religious doctrines, or at opposing the social and political influence of religious organizations. For example, she might be affiliated with a secular humanist organization, or the like, and take part in its activities.

12. This person should receive the same protection for her relevant beliefs, communications, and lawful activities as an adherent to a religion receives for her religious beliefs and communications and her lawful religious activities. Any other approach would be intolerably discriminatory. However, despite what is stated in paragraph 41 of the explanatory notes to the Bill in the Explanatory Memorandum, the current definition does not appear to have that effect. As worded, it protects only passively not holding a religious belief and passively not engaging in (or refusing to engage in) religious activity.

13. Accordingly, the definition of religious belief or activity needs to be modified so that it clearly includes communicating religious beliefs, and so that it includes holding and/or communicating beliefs that are actively critical of religion or are philosophical alternatives to religious beliefs. Furthermore, the definition needs to be modified to include not just non-participation in religious activity but also positive engagement in activity related to worldviews that are critical of religion and/or stand as alternatives to religious beliefs.

14. All of the problems identified under the current heading can be solved by adding the following to the current definition of religious belief or activity (perhaps with consequential amendments elsewhere in the Bill):

[(d) …]; or

(e) communicating a statement of belief; or

(f) engaging in any activity reasonably connected with a lack of religious belief, or of a particular religious belief, or reasonably connected with a critical attitude to religious belief generally or to a particular religious belief.

Statements of belief and public discussion of religion

15. If enacted, the legislative package will have the effect that a statement of belief is deemed not to be, solely in itself, discrimination under any of a list of federal and state anti-discrimination statutes. As far as it goes, this is welcome. It provides a valuable protection for one kind of speech, namely (subject to certain conditions) speech that expresses or communicates a religious belief, and speech that communicates a belief that the individual concerned genuinely considers related to his or her not holding a religious belief.

16. I expect that the courts would interpret the definition of a statement of belief broadly to include speech that communicates a critical attitude to religious belief or to a particular religious belief. Here, paragraphs 171 and 172 of the relevant section of the Explanatory Memorandum appear to be correct. Although this issue should be kept under review as case law develops, the proposed definition is probably broad enough to be workable and acceptable.

17. However, Note 1 inserted after sub-s. 12(2) is a matter of concern. This note also appears after sub-s. 15(3) (and see also paragraph 192 of the relevant section of the Explanatory Memorandum). It states: “A moderately expressed religious view that does not incite hatred or violence would not constitute vilification.” As far as it goes, this statement is correct. However, it is seriously misleading.

18. First, even an anti-religious view, or a view severely critical of religion or a particular religion, would not constitute vilification unless it incited hatred or violence. Though not defined in the Bill, hatred is an extreme emotion involving animosity, detestation, and calumny. Second, and more importantly, even statements of belief that are discourteous, disrespectful, satirical, mocking, or uncivil, or otherwise immoderate in their expression, would not constitute vilification unless they rose to the level of inciting either the extreme emotion of hatred or outright violence. While that much is clear as a matter of statutory interpretation, it is important not to create confusion with a note that conveys a contrary and misleading impression.

19. Thus, the note should be reworded to reflect the intention and meaning of the Bill. The note would be accurate – and more reassuring – if it stated as follows: Robustly expressed statements of belief that do not incite hatred or violence do not constitute vilification. This guarantees a broad zone for vigorous public discussion of religion.

20. In that regard, compare the broad zone for academic discussion and debate recently identified by a unanimous High Court in Ridd v. James Cook University (13 October 2021). Here, the judges explained that ideas of academic or intellectual freedom provide a broad zone for vigorous discussion that rightly includes much that inevitably cannot be expressed with courtesy and respect.

21. Outside the relatively genteel environment of the academy, this idea applies even more strongly to certain kinds of discussion and debate conducted in the public sphere. These include political, cultural, moral, and, most importantly for current purposes, religious discussion and debate.

22. To expect that public discussion and debate about religion should, or could, typically proceed in a “moderately expressed” way is to fail to take the issues of disagreement seriously. For example, adherents of some religions sincerely regard other religions as not merely false but actually demonic. Some religions sincerely view themselves as engaged in a cosmic struggle of good versus evil against other religions and/or against unbelief. Some religions sincerely regard a wide range of conduct as sinful, and hence conducive to spiritual damnation or an equivalent, even though the conduct might be essentially harmless in its visible effects, and thus not a good candidate for legal prohibition or for ordinary kinds of social condemnation. Religious leaders and adherents often feel called upon by God to speak prophetically, using forceful rhetoric to call their society back to its traditional moral ideas and forms of worship. Conversely, many people with non-religious or anti-religious philosophies view religious beliefs as ill-founded, false, socially harmful, and damaging to the welfare of individuals in the everyday, empirical world. Such people might well be motivated to engage in satire, ridicule, and denunciation in the tradition of Voltaire.

23. It follows that, even more than with academic discussion and debate, there is a limit to how far public discussion and debate about religion can be universally, or typically, moderate in its expression. There is, for example, a limit to how courteously, respectfully, and otherwise moderately religious leaders can express the view that certain conduct is wicked, sinful, and abhorrent to God. There is a limit to how moderately rival views can be identified and opposed as heresy, or as the products of malevolent spiritual intelligences active in the universe. Likewise, there is a limit to how moderately one could affirm that some or all religious beliefs are illusory and harmful. Public disputation over these and similar issues is inevitably passionate, robust, and marked by a sense of great urgency.

24. While some viewpoints might lead to ugly and hostile speech appearing within the sphere of public discussion and debate, the general policy that has developed in recent centuries, as part of the emergence of Western liberal democracies, has been to tolerate rival viewpoints and their vigorous assertion. Since the seventeenth century, supporters of secular government and freedom of religion have hoped that the harshest attitudes would soften in an environment where, at least, no one need fear persecution with “fire and sword” for holding and communicating their religious or philosophical views. By and large, that approach has been successful, and there has been a discernible softening of attitudes over the past, say, 350 years, and even within current lifetimes. It remains prudent to allow vigorous discussion and debate to continue in the public sphere, with minimal interference from the government or from others with lawful authority such as employers. Participants in public discussion and debate about religion should not have to fear legal sanctions, or adverse social outcomes such as termination of their employment, for insufficiently “moderately expressed” views.

25. This is not to suggest that statements of religious or philosophical belief should lie entirely beyond the law, allowing a total free-for-all in this area. Although it is difficult to identify with exactitude, there is an outer boundary to toleration of vigorous discussion and debate about religion or anything else.

26. Within the present Bill, the boundary is set by reference to statements of belief that are malicious, threatening, intimidating, harassing, or vilifying, or which incite serious crime. It is worth emphasizing that nothing in the Bill protects anyone from a civil suit for defamation, should she communicate a statement of belief that includes defamatory content. Nothing protects an employee who has confronted a workmate, colleague, customer, client, patient, etc., with a statement of belief that is, in context, malicious, threatening, intimidating, or harassing. Again, nothing in the Bill protects an individual who has committed one of the crimes in s. 80 of the Commonwealth Criminal Code – see especially ss. 80.2A and 80.2B, where the essence of the relevant offences is intentional urging of force or violence against groups or their members. Such boundaries provide more than adequate limits to toleration of vigorous discussion and debate about religion.

Conclusion

27. In summary, I have offered and defended two specific recommendations for amendment of the Religious Discrimination Bill 2021:

·       First, amend the definition of religious belief or activity as I have set out in paragraph 14 above. This may require some consequential amendments.

·       Second, as per paragraph 19 above, delete the first note to sub-ss. 12(2) and 15(3) of the Bill, and replace it with more accurate wording as follows: “Robustly expressed statements of belief that do not incite hatred or violence do not constitute vilification. This guarantees a broad zone for vigorous public discussion of religion.”

 Yours sincerely,

 Russell Blackford

9 December 2021