Mln Rda Reform Submission (for Public) 2.5.14 (1)

________________________________________________________________________

Muslim Legal Network Inc.

Submission regarding the Exposure Draft of the

Freedom of Speech (Repeal of Section 18C) Bill 2014

From Australian Muslim Community Organisations

on behalf of our member communities

_________________________________________________________________________

In the name of God, Most Merciful, Most Gracious

This submission is made by the Muslim Legal Network Incorporated (MLN). The MLN is an

association of Australian legal professionals and law students with chapters in Victoria, New

South Wales and Western Australia. It also has, as members, non-legal professionals who are

actively involved in the activities of the MLN. We seek to provide a balanced perspective to

government on the potential impact of proposed legislation. This perspective is based on

community consultations.

We thank the Attorney-General and the Federal Government for this opportunity to respond

to the proposed changes to the Racial Discrimination Act 1975 (RDA).

Dated: 2 May 2014

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2 May 2014

1. Modern Australia is a proud multicultural and multi-ethnic nation, which benefits from its

diverse cultural and religious communities. Australian Muslims are an integral part of this

rich, social fabric and desire to live and contribute to a progressive, liberal and democratic

Australia. All Australians deserve to have their legal and civil rights protected.

According to the Hon. Mr Malcolm Turnbull, Federal Member for Wentworth and Minister

for Communications:

“…history had proven “hate speech” was dangerous... people who peddle racial

hatred seriously undermine the stability and harmony of our country”1.

A. Grave concerns regarding the Exposure Draft of proposed changes to the RDA

2. Any watering down or perceived dilution of the RDA would send the iniquitous message

to our Australian community that hate speech was becoming an acceptable aspect of our

society, arguably opening the floodgates to potentially more abuse. The upshot of this, in our

considered view, is that the right to live free from racial or religious vilification, abuse and

intolerance (all of which Australia is a hallmark of globally) would be greatly diminished.

3. Perceptions are important, and there is a danger in even proposing to change the RDA or

commenting that “people should be free to be bigots”. These perceptions and comments

greatly increase the risks of communal anxiety, and increased racial intolerance, vilification

and abuse.

4. In our view, this very attempt to reduce the protections offered by the RDA is taking place

during a time where there are very disturbing hate crimes occurring in Australia against

members of the indigenous community2, Islamic centres

3, Muslim women

4 and members of

the Jewish community5. In fact, the proposed changes arrive in a time where we are seeing

the rise of right wing, intolerant, militant organizations such as Australian Defence League

(ADL) “which incites its followers to violence and has in recent months escalated a vicious

1 Stefanie Bologh and Patricia Karvelas, ‘18C not stopping racism, says law expert James Allan’, The Australian

(online), 28 March 2014 <http://www.theaustralian.com.au/business/legal-affairs/c-not-stopping-racism-says-law-expert-james-allan/story-e6frg97x-1226866974817#>. 2 Helen Davidson, ‘Woman turns herself in over Gold Coast bus attack on elderly man’, The Guardian (online),

28 February 2014 <http://www.theguardian.com/world/2014/feb/28/racist-gold-coast-bus-attack-victim-complaint-girls-involved>. 3 Megan Gorrey, ‘Canberra Islamic Centre hit by vandals’, The Canberra Times (online), 13 April 2014

<http://www.canberratimes.com.au/act-news/canberra-islamic-centre-hit-by-vandals-20140413-36ltr.html>. 4 Melanie Gardiner, ‘Thugs bash Muslim schoolgirl wearing hijab in Wantirna South’, Leader, 3 December 2013,

<http://www.heraldsun.com.au/leader/east/thugs-bash-muslim-schoolgirl-wearing-hijab-in-wantirna-south/story-fngnvlxu-1226773375213>. 5 http://www.ynetnews.com/articles/0,7340,L-4446183,00.html.

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hate campaign against Australian Muslims”.6 The proposed reforms are likely to encourage

organizations like the ADL as they stalk and photograph Muslim women, spray invectives at

Muslims in public places and threaten to blow up an Islamic school7. These reforms offer

promoters of hatred a form of validation to enable them to recruit more followers. This will

undermine the peaceful coexistence of the diverse communities across Australia.

5. As evidenced by the actions of convicted terrorist Anders Behring Breivik, there is

evidence that racial and religious hatred can encourage latent psychopaths to commit violent

acts on the wider community. According to his psychiatrist, Breivik was exposed to Anti-

Muslim, Islamophobic material that motivated him to commit the mass murder of people he

identified as being connected to Islam and Muslims in Europe8.

B. Freedom of speech is a very important right but not an absolute right

6. Freedom of speech is not absolute, and is limited for good reason in several areas, such as

defamation, libel and sexual discrimination, as well as racial discrimination.

7. Hate speech based on race, ethnicity or religion should be deplored and all members of

society should be protected from it. Just as freedom of speech should be valued, so should

the right of people to be part of a free and fair society without suffering the emotional, and

psychological and psychosomatic damage caused by hate speech.

8. Political philosophers such as Thomas Paine and John Stuart Mill have been quoted in

support for the importance of freedom of speech over protection from hate speech, however

they did not live in a modern multicultural society. In the days of Paine and Mill many forms

of sexual discrimination, which are no longer acceptable today, would have been the norm.

Just as sexual discrimination is unacceptable today, so too is racial discrimination

unacceptable in modern Australia with our society blessed with people from a multitude of

countries, ethnicities and faiths.

9. We believe that Australia’s multicultural society and our diversity are valuable and

important elements of modern day Australia. Harmony in a diverse society can be a delicate

thing, and hate speech puts this harmony at risk9.

6 ABC News, ‘Inside the far-right group spreading fear through Muslim communities’, Tensions between

Australian Defence League and Muslim community reach violent new heights, 22 April 2014, (Sean Rubinsztein- Dunlop). 7 Ibid.

8 The Biography, ‘Anders Behring Breivik’, The Biography (online), 25 April 2014,

<http://www.biography.com/people/anders-behring-breivik-20617893#awesm=~oCpxEHoXzE9sCk>. 9 ABC News, above n 6.

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C. The Racial Discrimination Act as it stands has been functioning well

10. The RDA is effective in creating an environment that supports multiculturalism and a

harmonious Victorian community. We also believe that the protections it provides and the

avenues it opens to conciliation are critical to a society that can see things from the

perspective of the vulnerable and less powerful.

11. The current legislation is to protect all Australians regardless of their backgrounds, not

just minority ethnic groups. It is here for the protection of all people, whether from a

minority or mainstream group from any racially abusive language by anyone. It forms a good

foundation to create a civilised, civic society for all.

12. In our view, the burden of proof bar for the existing legislation is already very difficult to

reach, so any proposed watering down would be a serious problem.

13. Particular communities may be perceived as strong or weak, united or fragmented, but

any individual within any of those communities may feel threatened, harassed, fearful or

disempowered when confronted with racially vilifying graffiti, incitement of racial or

religious hatred in the media, religious or racial abuse hurled from a passing car, people

calling for the death or elimination of a race on a sports field or when confronted by hate

speech on public transport.

14. The current legislation has also been very useful in helping to remove hate speech in the

online world. Surely, it is not in the Australian Government’s interest to see this reversed.

D. The RDA needs to be strengthened if at all changed

15. We would not like to see the existing legislation changed, except to strengthen it by

explicitly adding religion into the protections.

16. By adding ‘religion’ into the list in section 18B(b) and section 18C(1)(b) of the existing

Racial Discrimination Act – “race, religion, colour or national or ethnic origin”, we believe

that many people of various religious affiliations and faiths would feel better protected,

accepted and respected as members of society.

17. The wearing of a religious head covering such as a hijab, turban, yarmulke, cross or other

symbol of religious observance should not make these people feel like they are wearing a

target for abuse. In a free and just society, this should not be the case. For effective freedom

of religion, people should be able to practice their faith in mutual respect, without fear,

intolerance or vilification.

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E. Racial and religious intolerance, vilification, incitement of hatred and intimidation

are intolerable in multicultural Australia

18. This is not an issue specific to any one race or religion, but an issue for all members of

society. Over the past few months, 35 Victorian ethnic, community and faith organisations

have been discussing the issues involved and issuing statements expressing their concerns

about the potential watering down of the RDA. Several organizations within the Muslim

community have also been discussing the issues raised with deep concerns. One of the most

concerned of these communities is the Canberra Muslim community which, despite a rich

history of tolerance and coexistence with the local community, suffered a crippling attack by

vandals on the Canberra Mosque10

.

F. Specific Response to Proposed Changes

Section 18B is entirely removed. This section is designed to ensure that if a person commits

an act prohibited under section 18C but does so for several reasons only one of which is in

order to insult, offend, humiliate or intimidate a person on the basis of race etc, then even if

that reason is not the dominant one, it will be treated as THE reason for the commission of

the prohibited act for the purpose of section 18C.

19. We do support the removal of section 18B. Its removal would elevate the burden of proof

required from someone who has been the target of hate speech. For example, if in a game of

soccer, a Muslim player is abused as an opposition player and is told to “stop being a

terrorist”, then we believe the victim should still be protected from the hate speech

component of the abuse. This may not be the case if section 18B is removed.

Sections 18C and 18D are also repealed but replaced by a new section 18AA. The major

changes here are that the words “insult, offend, humiliate” are deleted and replaced

subsection 1 with the word “vilify” and so the core prohibition is to commit an act

reasonably likely to vilify another person or group of persons or intimidate another person or

group of persons.

20. To insult, offend and humiliate are not trivial, and trivial cases under the existing

legislation do not get very far. The existing wording is practically the same as in section 28A

(offended, humiliated or intimidated) of the Sex Discrimination Act 1984 and we believe that

the existing wording supported by the ‘reasonably and in good faith’ exemptions under

section 18D ensure a rational and responsible view of situations.

10

Gorrey, above n 3.

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21. We would be agreeable to amending the wording to “seriously offend, insult or

humiliate” to ensure that there is no perception that trivial situations are included.

Nevertheless, we recognise that use of the word ‘serious’ could be overly subjective and we

would favour a decision to maintain the current section 18C balanced by section 18D as a

better solution.

“Vilify” and “intimidate” are both defined in subsection 2.

22. Vilification as defined (inciting hatred) would concern itself with how the hate speech

affected a third party or audience, rather than the damage inflicted directly by the hate speech

on the target.

23. We welcome the introduction of the idea of ‘vilification’ into the RDA, but believe that

by narrowly defining it as inciting hatred it is far too narrowly defined, unless it is used in

addition to existing protections rather than as a replacement of existing protections: offend,

insults or humiliate. People should be protected from direct racial and religious vilification

as well as incitement of hatred if we are to feel free to safely practice our faiths and cultures

in Australia.

24. Intimidation in the Exposure Draft is defined as “to cause fear of physical harm”. We

believe that this is too narrowly defined and that mental or emotional harm should be

included, which we believe is at least as serious as physical harm. Victims of intimidation

may not be seen as under threat of physical harm but the seriousness of emotional harm from

Aboriginal citizens being refused a taxi ride because of their race, or people being afraid to

leave their homes or actively participate in society because of emotional harm cannot be

underestimated.

25. Mental and emotional harm can cause physical harm through substance abuse, self-harm

and potentially suicide: these outcomes also need to be avoided. This has serious

implications for the individual and the community.

26. Emotional intimidation may actually deter people from participating fully in society,

including participating freely in public debate and discussion. People may avoid

participation out of fear of verbal racial harassment and the proposed new wording would not

provide any sense of protection.

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By what standards should acts alleged to vilify or intimidate be judged? Subsection 3 states

that it is to be judged by the standards of an ordinary reasonable member of the Australian

community, not those of a particular group. This would mean that if words were uttered

about a person who is a member of Group A and by the standards of that Group the words

would be regarded as reasonably likely to vilify that person, that would not be enough to

constitute a breach of the new section UNLESS the words concerned would be so regarded

by an ordinary member of the wider Australian community as well.

27. The implication of the proposed subsection 3 is that there is such a thing as an ordinary

reasonable member of the Australian community. The Australian community is diverse and

there is no such thing as ‘normal’ or ‘ordinary’. Does the ‘ordinary’ Australian understand

what it is to be an Indigenous Australian, a Holocaust survivor, an African refugee, a Muslim

woman wearing a hijab, a Chinese family walking down the street or an Indian student on the

way to classes? All can feel intimidation, intolerance and alienation. All should feel

welcome, safe and valued as members of Australian society.

28. We would prefer to keep to the community standards test as applied in Eatock v. Bolt11

where the court considered the likely impact on a reasonable member of that part of the

community vilified. We believe that is a rational approach as well as being more fair and

respectful to the community being vilified than the proposed wording.

29. We would prefer that the last part “not by the standards of any particular group within the

Australian community” be removed as it could be seen as offensive by many community

members.

Subsection 4 is in effect an exemption of words etc which are communicated “in the course of

participating in the public discussion of any political, social, cultural, religious, artistic,

academic or scientific matter.”

30. The most serious problem we have with the Exposure Draft is subsection 4. It excludes

vilification and intimidation if “in the course of participating in the public discussion of any

political, social, cultural, religious, artistic, academic or scientific matter.” We believe that

this is far too broad. Racial vilification and intimidation as defined should not be tolerated

under any circumstances and we would want subsection 4 as it stands to be deleted. The

proposed subsection 4 would exclude most imaginable situations making the proposed

legislation completely ineffectual and a virtual full repeal of the protections for which the

RDA was designed.

11

Eatock v Bolt [2011] FCA 1103.

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31. We understand that subsection 4 aims to ensure that free speech, public discussion and

debate are not inhibited by subsection 1. However, we believe that the ‘reasonable or in good

faith’ protection in the existing section 18D provides a reasonable and adequate protection to

freedom of expression. Hence, the ‘reasonable or in good faith’ should be maintained and

not deleted.

18E (Vicarious liability) – to be deleted entirely.

32. We do not hold a consensus view as to the repeal of section 18E.

18F – State and Territory laws are not to be affected.

33. We believe that it is very important that the Federal RDA does not seek to exclude or

limit any concurrent State or Territory laws. We see the State laws as critically important and

as complementary to the RDA, such as the Victoria Racial and Religious Tolerance Act 2001

(Cth), which prohibits behaviour that incites or encourages hatred, serious contempt,

revulsion or severe ridicule against another person or group of people because of their race

and/or religion.

G. Alternative legal protections do not exist for some minority communities

34. The proposed reforms to the RDA will remove the minimal protections that exist for

Australian minority communities such as Australian Muslims who are not protected by the

Racial Hatred Act 1995 (Cth) (RHA). The RHA offers little to no protection for Muslims

who are often victims of vilification through social media12. The explanatory memorandum to

the RHA specifically refers to protecting minority communities including Muslims13.

However, Australian Muslims are not protected under the RHA which offers little

opportunity for the judiciary to determine Australian Muslims as belonging to a common

ethnic group or race, given Muslims are the adherents of a religion, Islam 14.

35. The absence of an appropriate legal recourse for victims could lead to racially charged

situations resulting in communal violence and disharmony. This was observed by all

Australians when racism fuelled the Cronulla riots15.

12

Peter Manning, Dog Whistle Politics and Journalism: Reporting Arab and Muslim People in Sydney Newspapers (Australian Centre for Independent Journalism, 2004) 52. 13

Explanatory Memorandum, Racial Hatred Bill 1994 (Cth), 2-3. 14

Ibid. 15

Babacan, Alperhan, and Babacan, Hurriyet, ‘New racism and fear: the Cronulla riots and racial violence in Australia’ (2007), 3 (10), Review Of International Law and Politics, 147-152.

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H. Against Australian and International Norms

36. Australians have been afforded legal protection from racial discrimination since 1975.

Successive Australian governments, utilising the instruments of the International Covenant

on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of

All Forms of Racial Discrimination (ICERD), have sought to ensure that we are legally

protected from deliberate acts of racial hatred. These international human rights instruments

are an ingrained aspect of the Australian psyche, irrespective of the manner of their

codification. The proposed reforms distance Australian law from international conventions

and norms.

I. Australians Urge Not to Change the RDA

37. The RDA currently protects vulnerable minority groups but we believe that these reforms

will fail to fetter racial and religious hatred in Australia. This is likely to result in

considerable community angst and disharmony.

38. We believe that our Muslim community, as all people in our Australian society should be

treated with dignity and respect regardless of their race or religion. In light of the seriousness

of this issue, Muslim community organisations, religious leaders & family members are

voicing their support for the position taken in this submission.

39. We would like to acknowledge the contribution of the Jewish Community Council of

Victoria in respect of this submission and the general discussion around the proposed

reforms.

40. The Muslim Legal Network and its co-signatory organisations (provided below) to this

submission represent the nearly 476,29116

people of the Islamic faith in Australia.

If any further information is required, please do not hesitate to contact Mr Jazeer Nijamudeen

on 0433 827 993 or [email protected]. We are happy to discuss the

matter further and assist where possible.

16

Australian Bureau of Statistics, 2011 Census reveals Hinduism as the fastest growing religion in Australia, (21

June 2012) < http://www.abs.gov.au/websitedbs/censushome.nsf/home/CO-61 >.

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Supporting Organisations & Community Leaders’ Signatories

Submission not to enact the proposed reforms to the RDA

# Name Position Contact Community Organisation 1 Mr Nizam Jazeer

Nijamudeen President (VIC)

Muslim Legal Network

2 Mr Aziz Khan President (WA) Muslim Legal Network

3 Mr Bilal Rauf President (NSW)

Muslim Legal Network

4 Mr Samier Dandan

President Lebanese Muslim Association

5

Mr Kaled El Hassan

President Muslim Students Association of Australia

6

Mr Khaled Sukkarieh

Chairperson Islamic Council of New South Wales

7

Mr Ghaith Krayem Secretary Islamic Council of Victoria

8

Mr Muhammed Suhail

President Edith Cowan University Islamic Society

9

Mr Mohamed Omer Chairman of Shura Council

Islamic Centre of Western Australia Inc.

10

Mr Talha Nasim Trustee Perth City Musallah Association Inc.

11

Mr Muhammad Khubair

Secretary Minhaj Ul Quran Vic Inc.

12

Mr Abdul Rafiq President

Islamic Education and Welfare Association of Dandenong Inc.

13

Dr Ibrahim Salim (Abu Muhammad)

Grand Mufti of Australia

Australian National Imams Council

14

Sh Abdel Azeim Rahman

President Australian National Imams Council

15

Sh Gul Saeed Shah

President Board of Imams Victoria

16

Sh Isse Abdo Musse

Vice President Board of Imams Victoria

17

Sh Mohamadu Saleem

Treasurer/PRO Australian National Imams Council

18

Sh Abdus Salam Zoud

General Manager

Ahlus Sunnah Wal Jamaah (ASWJ) association of Australia

19 Sh Yusuf Peer President Council of Imams Queensland

20 Sh Mahmoud Omran

President Council Of Imams, Western Australia

21

Sh Riad El Refai Secretary Council of Imams, South Australia

22 Sh Abdul Kadir Imam Islamic Society of Toowoomba

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23 Sh Shabbir Ahmad Executive Member

Australian National Imams Council

24 Mr Mohamed Masood

President Werribee Islamic Centre

25

Sh M.N. Hassan President Al Mustapha Institute, Brisbane

26

Sh Sufyan Khalifa President Daawah Association, Western Australia

27

Sh Feizal Ghafoor Member Jamiyathul Ulema, Western Australia

28

Mr Rifai Abdul Raheem

President Institute of Muslim Academic Network Australia Inc

29

Sh Moustapha Sarakibi

Imam Hume Islamic Youth Centre

30

Mr Siddiq Buckley President Australian Islamic Mission Inc

31

Mr Abdikarim Hussein

President Islamic Information and Support Centre of Australia Inc

32

Mr Abu Naeem

Director Ahlus Sunnah Wal Jamaah Association of Australia

33

Mr Muhammad Siddiqui

President Meezaan Group Inc

34

Mr Faizal Izzedeen President United Sri Lankan Muslim Association of Australia

35

Mr Sheikh Mohamadu Saleem

Public Relations Officer

Board of Imams Victoria

36

Mr Omar Chehade Director The Australian Islamic House in Liverpool Area Inc.

37

Mr Omar Lahham Acting President

Federation of Australian Muslim Students & Youth Victoria

38

Hz Abdelhay Abdelhay

Principal Ibn Masood Institute

39

Mr Manzoor A Mian

Secretary Ararat Islamic Welfare Association Inc

40

Mr Aiyaaz Ali President iDawah Australia Inc

41 Mr Vahid Goga President Albanian Australian Islamic Society

42 Mr Malek El Haouli President Newport Islamic society

43 Capt. Razzak A. Syed

President Australia Bangladesh Islamic Council

44 Mr Aziz Khan Chairperson Western Australia Muslim Lawyers Association

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45

Mr Ruzni Ramzeen

President Islamic Society of Deakin University

46 Mr ABM Russel National Manager - Australia

Mercy Mission

47 Mr Abdul Kamareddine

Executive Committee Member

Australian Federation of Islamic Councils