The following article has been published in The Sydney Morning Herald by Jacqueline Maley.
6 September 2019
Commonwealth criminal laws prohibiting the incitement of violence based on race and religion are ineffective, says the head of the Executive Council of Australian Jewry, and should be scrapped and replaced with tougher laws, with the “free speech” defence abolished.
Peter Wertheim says the “good faith” defence to the incitement laws, which has a free speech protection for “a report or commentary about a matter of public interest” should be removed completely.
“If someone incites violence, with the intention that violence should occur, how can they justify that under free speech?” Mr Wertheim said.
The call to toughen laws on incitement to violence based on race and religion comes amid a fierce debate about religious freedom, with Attorney-General Christian Porter last week releasing an exposure draft of religious discrimination legislation.
Mr Wertheim said the issues of incitement to violence based on race and religion, and religious freedom are “conceptually distinct” but there is some overlap.
The prohibition on inciting violence against a group or person on the basis of their race, religion, nationality, ethnicity or political opinion is contained in sections 80.2A and 80.2B of the Commonwealth Criminal Code.
Section 80.3 outlines a “Defence for acts done in good faith”, including the free speech provision.
However, the Executive Council of Jewry argues the current law presents too high a bar, making it hard for police to prosecute incitement to violence offences.
Prosecutors must prove two types of “criminal intent” – that the accused urged violence against a group or person, and also that the accused did so intending that violence would occur.
“Those two sections are quite unusual. They require proof of a double mens rea,” Mr Wertheim said.
“It’s hard enough to prove one element of mens rea to a criminal standard.”
This leaves the prosecutor little practical prospect of success, the Council says.
Mr Wertheim cited the example of an anti-Semitic diatribe delivered in public by Sheikh Ismail al-Wahwah, of the fundamentalist Islamist group Hizb ut-Tahrir in 2014, which was filmed and shared on YouTube.
Al-Wahwah accused “the Jews” of corrupting the world and described them as “the most evil creature of Allah”.
He said that “Judgment Day will not come until the Muslims fight the Jews…tomorrow you Jews will see what will become of you – an eye for an eye, blood for blood, destruction for destruction.”
He said there was “only one solution for this cancerous tumour: it must be uprooted and thrown back to where it came from”.
The matter was referred to the Australian Federal Police under sections 80.2A or 80.2B of the Criminal Code, but no prosecution eventuated.
The President of the Law Council of Australia, Arthur Moses SC, called for a “separate and more detailed review” of the incitement provisions.
“The proper content and scope of federal anti-vilification laws, particularly in light of Australia’s international obligations under the International Convention of the Elimination of all forms of Racial Discrimination…should not be addressed as a side issue to the broader anti-terror law debate”.
Last year NSW legislators inserted a new provision, s93Z, into the NSW Crimes Act, prohibiting a person from “intentionally or recklessly” threatening or inciting violence based on race, religious belief or affiliation, sexual orientation, gender identity, intersex status of HIV/AIDS status.
Crucially, the provision offers no “good faith” defence for those who genuinely hold a prejudiced view.
Of the Commonwealth law, Mr Moses said “the Law Council questions whether it is appropriate that a good faith defence should be available for these offences”.
“Such a defence may provide false comfort to those who seek to engage in such conduct”.
Mr Wertheim has also called upon the federal government to establish a national register recording hate-motivated crimes.
He said that contrary to the United Kingdom, Canada and the United States, Australia has no way of keeping track of hate-crimes and bias-motivated crimes.
“It is an absolute imperative,” Mr Wertheim said.
“We need an empirical basis for government policy to deal with bias-crime. This has been highlighted by crimes overseas, including the Christchurch massacre, the Pittsburgh Synagogue massacre and the San Diego Synagogue shooting.”