Updates

Glen Falkenstein

ABC’s The Drum – September 16, 2015

It’s time to review our racial discrimination legislation, because as the failure to act against Hizb ut-Tahrir in NSW clearly shows, it’s not working, writes Glen Falkenstein.

If a law is not working, it should be amended. When the failure of a law licenses incitement to hatred and violence, it must be amended as a matter of urgency.

The NSW Anti-Discrimination Act, since its introduction, has never resulted in a successful prosecution under its racial incitement provision, Section 20D, nor has the Director of Public Prosecutions (DPP) ever laid a charge under the provision, despite 30 cases being referred by the Anti-Discrimination Board for attention.

The lack of actual effect or demonstrable impact of this legislation in countering hate speech is deeply concerning to ethnic and religious communities all over Australia who rely on government to protect them from vilification and extremism.

We now have the 31st consecutive failure to prosecute under these laws, with the recent decision not to charge Hizb ut-Tahrir leader Ismail Al-Wahwah following a complaint filed by the NSW Jewish Board of Deputies, with the six-month deadline for commencing the prosecution ending this month. In 2013, the DPP indicated that they did not believe that the burden of proof required by the legislation would have been met in any of the then 27 complaints on record that were referred to their office.

In a video uploaded to YouTube, Al-Wahwah said:

The ember of jihad against Jews will continue to burn … tomorrow you Jews will see what will become of you – an eye for an eye, blood for blood, destruction for destruction.

In one of the videos posted, Al-Wahwah also allegedly labelled Jews “the most evil creature of Allah”.

Section 20D of the Act holds that a person shall not:

…incite hatred towards … a person or group of persons on the ground of the race of the person or members of the group by … threatening physical harm … or inciting others to threaten physical harm.

Hizb ut-Tahrir spokesman Uthman Badar, who received notoriety for the cancellation of his address at last year’s Festival of Dangerous Ideas discussing whether honour killings can be morally justified, responded that the controversy surrounding Al-Wahwah’s statements was a “cheap allegation of ‘hate speech’ and a McCarthyist attempt to silence dissent”.

Al-Wahwah’s statements are exactly the type of vitriol that these laws were designed to address. Given that the burden of proving incitement required by the legislation apparently could not be met in cases brought to the DPP, one has to ask if there’s a conceivable situation in which the law in its current form could be applied.

There are now widespread calls for the Act to be fixed. The president of the NSW Anti-Discrimination Board, Stepan Kerkyasharian, recently backed calls for the legislation to be reviewed, with NSW Attorney-General Gabriel Upton indicating the Government was “considering” recommended changes to the laws, adding that “people, communities and governments need to be vigilant to, and guard against, the spread of religious or racial vilification”.

In 2013 the NSW state government commissioned an inquiry into racial vilification laws with the express intention of reporting “on whether section 20D is effective and if not, provide recommendations that will improve its efficacy with regard to the continued importance of freedom of speech”.

The Government has not adopted any of the multiple recommendations and options for reform made by the inquiry. One option advanced by the report to address the burden of proof issue was that for the “avoidance of doubt”, Section 20D be amended to “state that recklessness is sufficient to establish intention to incite”.

The law as it stands does not account for the reckless disregard for public safety and the safety of individuals brought on by the mere proliferation of such statements, which regardless of the speaker’s demonstrable level of intent, clearly represent a callous, irresponsible and wholly reckless indifference to the outcome and effects of such rhetoric. Tragically, as we have seen around the world, the incendiary nature of this speech can have a hugely significant impact on sympathising extremists.

Similar concerns surround the wording of Sections 80.2A and 80.2B of the Federal Criminal Code, which also address the urging of violence against groups and make specific references to the intention of the offender. Sections of the code are being considered for potential improvement and amendment following the release of an interim report by the Australian Law Reform Commission focused on preserving traditional rights and freedoms, which includes protections from discrimination.

Some of the laws in place do not provide a significant enough disincentive for hate preachers or radicals to refrain from urging violence against groups or members of a group, nor demonstrate their ability to sufficiently combat racist extremism in this country.

Freedom of speech considerations, as specified in the ALRC interim report, are also important. There is no reason appropriately amended legislation, specifically targeting the type of extremism that is of widespread community concern, which maintains appropriate burdens of proof and safeguards, cannot both protect community harmony and account for the freedom of speech that is so essential in a democracy.

Throughout all the misguided attempts to repeal section 18C of the Racial Discrimination Act, the fact that some of our racial vilification legislation (as has been highlighted in this case in NSW) is inadequate to combat extremism was unfortunately sidelined, and that legislation needs to be refined and improved.

It’s time to review our racial discrimination legislation, because it’s not working.

Glen Falkenstein is a policy analyst at the Australia/Israel & Jewish Affairs Council.