Australia and the UK have recently experienced a growth in public inflammatory language from conservative groups critical of immigrant or religious groups, to radical clerics such as Abu Hamza, Sheikh al-Hilali and Sheikh Feiz Mohammed. This is a relatively new phenomenon in Australia, and we are still formulating the most appropriate policy response.
The guidelines at international law are clear: the expression of extremist views advocating hatred which constitutes incitement to discrimination, hostility or violence must be prohibited. Such speech, which can be termed ‘hate speech,’ undermines social cohesion and the realisation of individual human dignity and equality. The right of freedom of expression is not absolute, it must be balanced against the realisation of other fundamental human rights. Defining the outer-most limits of the right of freedom of expression is critical for promoting public confidence and support for international human rights law. It requires statesmanship on the behalf of the Federal Government to ensure there is understanding of how the human rights framework protects all members of society.
The framework of international law is particularly important in the context of hate speech it provides protection for individuals on the basis of their membership of a social group, as well as some protection for the survival of the group’s identity.
Perhaps the most critical element in the regulation of hate speech is ensuring a distinction is made between the individuals associated with the social group and the ideology that underpins that social group. For example, the tenets of a religious belief must be open to analysis, debate and criticism; but the adherents of a faith must be protected from discrimination, violence and hatred on the basis of their membership of that faith group.
This presents a difficult line to tread in the regulation of free speech. The UK legislation presents a partial solution: it prohibits the use of threatening words or behaviour that intend to stir up hatred against persons on religious or racial grounds, although the provision fails to fully conform with international law’s threshold requirement of ‘advocacy’ which requires a specific intent to incite hatred on national, racial or religious grounds, not merely ‘threatening’ words. The UK legislation has also recently been amended to ensure that the discussion or criticism of the tenets of religious belief is not restricted in any way.
The Australian Government grappled with the issue when it enacted the Anti-Terrorism Act 2005 No. 2. Section 80.2(5) of the Act criminalises a person urging a group, distinguishable by race, religion, nationality or political opinion, to use force or violence against another such group, where that force or violence would also threaten the peace, order and good government of the Commonwealth. By doing so, s 80.2(5) effectively permits a wide range of dangerous inflammatory speech that threatens racial or religious groups, so long as it doesn’t undermine the functioning of the government or Commonwealth.
It is also concerning that ‘the peace, order and good government of the Commonwealth’ is not defined in the Act is it a threat to the nation, or is it equivalent to a Common Law breach of the peace? If it is the former, then it is a formidable threshold to satisfy in order to prosecute for hate speech; and it is likely that this was the intended meaning.
Section 80.2(5) also suggests that the offence will only apply to minorities that incite violence against majority groups, and not the other way round. These are significant and concerning gaps in Australia’s regulation of hate speech, which does not improve the domestic protection of human rights and the management of inter-community and inter-ethnic relations.
Sheikh Feiz Mohammed, image from Melbourne Indymedia
What course for action does s 80.2(5) offer to the extremist language of Sheikh al-Hilali and Sheikh Feiz Mohammed? None. Despite shocking, violent language which ridicules minority groups and incites sexual violence against unveiled women in Australia, there is no contravention of s 80.2(5). There was indignant outrage from Australia’s political leaders John Howard called Sheikh al-Hilali’s statements ‘appalling and reprehensible’ and Kevin Rudd described Sheikh Feiz Mohammed’s comments as ‘incitement to terrorism,’ but there has been no call by either the Coalition or Opposition to review the inadequacies of s 80.2(5). Howard has further inflamed the situation by recording an Australia Day goodwill message to Catch the Fire ministries, a fundamentalist Christian group that has been accused of inciting anti-Islamic hatred.
A dangerous vacuum has been created by the lack of clear, balanced Federal provisions regulating hate speech. Ad hoc, politically partisan comments are the only official Federal response to the expression of extremist ideology and these fail to provide an adequate solution. Instead, these statements risk aggravating inter-community and inter-ethnic alienation and tensions precisely the situation that the prohibition of hate speech seeks to remedy
However, prohibition alone will not provide a complete solution to the type of extremist speech that is occurring across the political spectrum. As the Australian Law Reform Commission (ALRC) recommended in its recent report on Australia’s sedition laws, a package of non-legislative strategies are also essential, including improving educational programs, to promote inter-communal harmony and understanding. In making this recommendation, the ALRC echoed the Joint Statement made by the United Nations, the Organisation of American States, and the Organisation for Security and Co-operation in Europe at the Durban Anti-Racism Conference in 2001 which emphasise the importance of the role of the media (and particularly the national public service broadcaster) in promoting public awareness and understanding of all forms of racism, including racial vilification and racial hatred.
In this way, the Joint Statement emphasises the essential role that the right of freedom of expression as given effect through the media holds in combating serious social ills. In addition to these recommendations, it is critically important that there is clear and responsible political leadership on inter-community relations. This includes exercising restraint in respon
ding to inflammatory language, and re-emphasising the importance of respect for democratic principles of tolerance and broadmindedness.
Donate To New Matilda
New Matilda is a small, independent media outlet. We survive through reader contributions, and never losing a lawsuit. If you got something from this article, giving something back helps us to continue speaking truth to power. Every little bit counts.