The following article has been published in The Sydney Morning Herald by Jac­queline Maley.

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.”

Contact
Peter Wertheim AM | co-CEO
ph: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au