Are Counter Terrorism Laws an Infringement on Freedom of Speech?

In June 2018, New South Wales passed new legislation to target incitement of violence. The law states that individuals who incite or threaten violence against people based on their race, religion or sexuality will risk a three-year jail sentence.

 Are these laws an infringement on western democratic traditions around freedom of speech or are they a necessary part of the state’s ability to counter violent extremism?

Introduction

Since 1989 the NSW liberals and the nationals government was the first in Australia to introduce legislation to protect historically targeted communities from harm  which include individuals based on their race, religion or their sexuality ([1]Justice, 2018). Now almost 30 years later, it can be said that this is no different as these community groups still need support from the government as societal values, attitudes and beliefs are changing.  The Australian government understands and acknowledges that radical vilification is a serious problem in Australia, as one in five Australians say they have experienced racist speech, including verbal abuse, racial slurs and name calling ([2]Australian Human Rights Commission, 2017). It can also be said that one in twenty Australians have been attacked due to their race (Australian Human Rights Commission, 2017).  Therefore it is  mandatory and evident , that the Australian government needs to act again by strengthening and changing the existing legislation to support historically targeted communities from people who specifically go out of their way to in danger vulnerable communities. To understand further the diversification of New South Wales specifically, 2.5% are aboriginal, 23% were born overseas, 16.8% were born in a non-English speaking country, 75% have a religious affiliation, 19% have a disability such as physically, intellectual or psychiatric. Further to this, 15% of those whose first language is English have poor literacy skills and 8-11% are not exclusively heterosexual ([3]Equality before the bench book 2009). Since the acceptance of gay marriage in the state of NSW this has helped to diffuse an element of tension. New changes in societal attitudes is evident due to the crime wave Sydney experienced between 1984-1999 which was largely invisible due to the culture at that time ([4]Sheenan,2013).  Sue Thompson, a former long-time gay and lesbian client to the NSW police estimated that between 1989 and 1999 there was more than 40 gay hate murders in NSW (Sheenan,2013). What the past shows from 1989-1999 to now is that attitudes within Australia have changed which has reflected in the updated legislation. Although it is acknowledge different states and terrorities have variations of  the legislation it is clearly evident that progress has occurred over the last 30 years.

By making these changes it acknowledges Australia’s security interest against counter violent extremism is up most important but also notes providing a balance for freedom of speech and freedom from radical discrimination and vilification.  Furthermore, the new legislation acknowledges that everyone has the right to go about their lives without fearing for their safety just because of what they believe in or who they are. This is a necessary of the state’s ability to counter violent extremism, but doesn’t act as an infringement on western democratic traditions around freedom of speech. According to the Human Rights Commission specifically ICCPR Article 19 refers to freedom of speech everyone shall have the right to hold options without interference ([5]Human Rights, 2018) . Everyone shall have the right to freedom of expression and lastly freedom of speech is subjected to certain restrictions including respect of the rights and reputations of others and for the protection of national security.

Therefore, the crimes amendment (publicly threatening and inciting violence) act 2018 NSW supports the state’s ability to counter extremism.  As previously mentioned is not an infringement on western democratic traditions.  It can be said that there are three in connected factors which contribute to the western civilization. Firstly, the limitations on the power of the government. Secondly, limited government and the important role  for individuals and private organizations and lastly, law and custom defined limitations on freedom on the basis of individual responsibility specifically.  It should also be noted that the legislation is built on the following principles which include respect for difference, taking care of one another, non-violent communication to resolve the conflict and integrity for the common good.

Australia is obliged under the international covenant on civil and political rights (ICCPR) and the international convention on the elimination of all forms of racial discrimination (ICERD) to ensure no one is subjected to racial hatred.  Specifically referring to Article 20 (2) of the ICCPR provides the following:  “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.  Secondly the Article 4(a) of the (ICERD) states and requires “shall declare an offence punishable by law all dissemination of ideas based on radical superiority or hatred, incitement to radical discrimination as well as acts of violence”.

Both of these articles of legislation clearly outlines that the rights of freedom of expression carries with it special duties and responsibilities. Therefore freedom of expression is not an absolute right and may  be restricted where necessary to respect others.  The new legislation acknowledges that everyone has the right to go about their lives without fearing their safety just because of what they believe in or who they are and is a necessary part of the state’s ability to counter violent extremism.  In addition to support this as previously mentioned, Article 19 (3) states the ICCPR requires any restrictions on freedom of expression be provided by law and to purse a legitimate aim for the protection of national security, public order and morals (ICCAC AACT 19 (3)[6].

The Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW) (Amending Act) was passed on 20 June 2018 which is consists of two major parts.  The first part of the act introduces a new section referred to as section 93Z into the crimes act 1900 (NSW). This section of the legislation states; intentionally or recklessly, by a public act, threatening or inciting violence towards another person or group of persons based on the grounds of race, religious belief or affiliation, sexual orientation, gender or HIV/AIDS STAUS. Within the crimes act 1900 (NSW) the public act is identifies as the following:  any form of communication ( including social media) to the public, any conduct observed by the public and lastly the distribution or dissemination of any matter in public.  With this new legislation being introduced this will abolish offences in the Anti- Discrimination act 1977 that carried a maximum sentence of six months (Justice, 2018).  The amended law reflects the community values and will send a clear message to offenders that violent behavior will not be accepted which risks people safety simply because they belong to a particular group (Justice, 2018).

The punishment includes a three year sentence  with a fine of a $11,000 or $55,000 in the case of a corporation. This new legislation does not punish the freedom of speech but rather  those who cross the line into threating  and inciting violence (Justice, 2018).  It is evident that these changes have been implemented with the rise of defamation cases involving social media and increased threats of counter violent extremism. For example within the last decade, the Australian community has been a witness to the Martin Place siege and the shooting of police employee Curtis.

Another example is the anti-Semitic rants by a radical Muslim leader. Ismail al- Wahwah, who is a Sydney based leader of the political group Hizb-ut Tahria was filmed describing Jews as the “hidden evil” and calling for a “Jihad against the Jews” ([7]Olding, 2015). The NSW Jewish board expressed the groups concerns regarding hate speech and stated that freedom of speech that we enjoy in Australia is precious and we cannot allow it to be abused in this way. Furthermore, hateful and derisive speech has no place in our harmonious multicultural society” (Olding, 2015). From reviewing these recent cases it is clear that legislative changes have incurred from positive support as a necessary part of the state’s ability to counter violent extremism.  A number of key stakeholders such as Refern legal centre, Human rights law centre, Australian national imams council, Trump Lawyers and the Law society NSW.  It should also be noted that these stakeholders provided recommendations for the new changes. Some of these recommendations included:

The Redfern legal centre welcomes moves to increase protection of vulnerable minority communities. Specifically the Redfern legal centre is suggesting changes to section 20D that the “means”  be removed from this section of legislation and an incitement of violence provision be added ([8]Redfern legal centre, 2017). By adding the word “means” the offence of serious radical vilification would then become incitement of hatred towards, serious contempt for, server ridicule of, or violence towards a person, or groups of person on the grounds of their race (Redfern legal centre, 2017).  The Redfern legal centre notes that these suggested changes should not impinge on public expression of opinion and expression done within reason and in good faith.

Further to this, Kingsford legal centre advised a number of recommendations for legislative changes. Some of these included the following: The maximum punishment for imprisonment be increased to three years, the means element in section 20(a) and section 20(b) be removed, section 20 (1) of “severe” or “serious” hatred, contempt or ridicule be removed and replaced with expression hostility or brings into contempt of ridicule and lastly the requirement of having “knowledge” in section 20 (b) be removed ([9]Kingsford legal centre, 2017). In summary it can be said the following recommendations have been taken into account by the law society of NSW. With the above submissions made the law society supports the following made which include but not limited: expanding a range of behaviors that are covered for vilification on the basis of transgender, homosexuality, transgender and HIV/ aids status. Lowering the test to “promote” rather than “incites” by “by a public act intentionally or recklessly promotes rather than incites for example ([10]Anti-discrimination legislation amendment, 2016).

It should also be noted that all of the Australian jurisdictions provide a legal framework for seeking redress when a person is victimized on account of their race ([11]Moraes,2018). Tasmania has anti-discrimination act 1988 to deal with anyone inciting hatred.  NSW anti-discrimination 1977, which has made it a criminal offence to incite hatred, contempt or serve radicle towards another person (Moraes,2018). Victoria racial vilification act 1966, however proposals to introduce a new law to cover religious discrimination and vilification (Moraes, 2018). Northern Terrority operates under the anti-discrimination act 1992, ACT discrimination act 1991 acts in a similar way to NSW laws. It can be said that each state has a different methodology and classification process which makes it very difficult to compare crime rates.  These can be seen as a down fall when individuals are prosecuted under variations of the law (Moraes, 2018).

Furthermore, the organization Keep Australia Safe was reported by ‘The Guardian Australia’ as welcoming the bill stating’ “The government has drawn a very important line in the land, and this is a great day for the residents in NSW (legal research, 2018[12]). A media release issued by the NSW department of Justice, Attorney-General Speakman noted that the changes would also effect the strengthening of police powers (Timebase,2018).Opposition leader Luke Foley, who introduced a similar bill to parliament  welcomed Mr. Speakman announcement. It can also be noted, Mr. Attorney- general  Mark Speakman argues “freedom of speech does not include the right to incite or threaten violence based on peoples characteristics” Mr. Speakman said. In addition to this, Mr. Speakman goes onto say, “this has nothing to do with saying things are controversial, with robust debate with intense criticism of other groups, this is about stopping violence”.  Furthermore, ‘Keep Safe’ spokesman Mr. Vic Alhadeff has been campaigning for tougher laws for the last three years and states by moving the offence within the crimes act makes an “unequivocal statement”([13]Haydar, 2018).  It is evident that this change is important for the Australian people and necessary as evidence shows since 1989 when the anti-discrimination legislation was introduced there was over 30 cases referred to the DPP. However, none have been prosecuted because the DPP was of the opinion that it would not successfully be upheld, anti-discrimination board president Stepan Kerkyasharian said. Further to this, Section 20d requires that the acts complained of must incite hatred towards, serious contempt for, or severe ridicule of, a person or group. This means it is a requirement of the prosecution to prevent evidence to prove that the conduct was incited a third party, which therefore is setting a high onus of proof which is difficult to discharge.  Section 20d is also compared against New Zealand legislation under their harassment laws. It is enough that a person has ‘expressed hostility against or brings into contempt or ridicule’ which does not need to be serve or serious, therefore making it easier to prosecute.

In addition to these changes within the legislation, the Australian government is also committed to preventing violent extremism through government funds settlements, multicultural community initiatives and other social policy programmed to enhance Australia’s social cohesion by supporting historical targeted groups.  Some of these examples include the following, targeted work with vulnerable communities and institutions which involves creating training packages, providing community resources and developing and creating rehabilitation programs for those who have been imprisoned ([14]Department of Home Affairs, 2018).  Addressing terrorist propaganda online which involves addressing online radicalization and challenging terrorist propaganda by limiting and reducing access regarding the online content. Diversion and deradicalization is also another government initiative which includes the early intervention program to help people move away from violent ideologies and reconnect more with their local communities (Department of Home Affairs, 2018). Lastly, supporting activities which include international engagement for collaboration of sharing of information between law enforcement and government bodies (Department of Home Affairs, 2018). Engaging with academia to leverage knowledge and expertise in the field to assist law enforcement.

Human rights law centre acknowledges striking the right balance between freedom of speech and protecting Australia’s national security interest against counter violent extremism.  According to the human rights law centre the right of ‘freedom of speech is a foundation stone for every free and democratic society’ ([15]UN Human Rights Committee 34). However, it should also be noted that it is not absolute. Freedom of speech can be limited where reasonable and absolutely necessary in order to protect Australia’s national security which include but not limited to public order, public health and morals ([16]ICCPR, art 19 (3)). Anti-vilification laws set standards of conduct that discourage people  from vilifying others and encourage people to speak out against racism, homophobia and discrimination against HIV/Aids status ([17]ICERD, art 4 (a)). The human rights law centre provides a number of recommendations which include the following: the NSW government should consider lowering the serious racial vilification, penalties for serious vilification offences should be consistent across protected attributes and lastly vilification offences should be moved from the ADA to the crimes act 1990.

Conclusion

In conclusion the changes to ‘The crimes amendment (publicity threatening and inciting violence)Act 2018) (NSW)(Amending Act) supports the community outcry for changes needed to continue to support vulnerable communities. This also strengthens the government position that this behavior is unacceptable. When accessing the freedom of speech and the western democratic rights it is identified that there are restrictions  on freedom of expression be provided by law and to purse a legitimate aim for the protection of national security, public order and morals. When conducting these changes it should be noted a number of key stakeholders were invited to comment and to provide recommendations towards the legislation. These key stakeholders that provided recommendations included but not limited to Redfern legal centre, Kingsford legal centre and the Human rights law centre. A number of multicultural organizations also provided comment on the legislation.  All of the key stakeholders welcomed increased protection for the vulnerable minority communities. But noted that any proposed changes should not impinge on public expression of opinion or public expression but also acknowledged that freedom of speech was not an absolute.

It should also be acknowledged that in the last decade a number of national security incidents have occurred which has questioned Australia’s national security.  Some of these events included the Curtis Chang shooting in Parramatta, Siege at the Lindt Café and public demonstrations against specific religious groups as well as social media posts. Therefore these examples provided provide evidence into the conclusion that these laws are a necessary part of the state’s ability to counter violent extremism. It should also be mentioned, that this essay has only highlighted domestic examples within Australia, but should be acknowledged that there are a number of international ongoing issues which affect the way that Australia changes and applies legislation at a domestic level.

Reference list

1. Justice, 2018 ‘New laws to target incitement of violence’ https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/new-laws-target-incitement-of-violence.aspx > 5 June 2018
2. Australian Human Rights Commission campaign, ‘Racism. It stops with me’ <itstopswithme.humanrights.gov.au/why-racism> 27 January 2017
3. Equality before the bench book, 2009 https://www.lawsociety.com.au/sites/default/files/2018-03/Equality_before_the_Law_Bench_Book_0.pdf
4. Shennan, 2013 ‘Gay hate: the shameful crime wave’ Sydney Morning Hearld https://www.smh.com.au/opinion/gay-hate-the-shameful-crime-wave-20130303-2fe9w.html
5. Australian Human Rights Commission ‘Freedom of information, opinion and expression’ https://www.humanrights.gov.au/freedom-information-opinion-and-expression
6. ICCAC Act 19 (3)
7. Rachel Olding, 2015 Sydney Morning Herald “ Radical Muslim leader’s anti-Semitic rants referred for criminal charges”
8. Redfern legal centre, 2017 ‘Response to the consultation on serious vilification lawns in NSW
9. Kingsford legal centre, 2017 ‘Review of serious radical vilification offence’
10. Schedule 1, Division 15c, Anti- Discrimination legislation amendment (Vilification) bill 2016
11. Moraes, 2018 ‘An overview of hate crime’ https://www.whoishostingthis.com/resources/hate-crime/#hate-crime-australia
12. Legal research, 2018 ‘NSW target threats or violence on ground of sexuality, race, religion. >7 June, 2018 https://www.timebase.com.au/news/2018/AT04726-article.html
13. Nour Haydar, 2018 ‘ NSW hate speech laws to be toughened to stop violent threats online or in the street https://www.abc.net.au/news/2018-06-05/nsw-hate-speech-laws-to-be-toughened/9837816 > 5 June 2018
14. Department of home affairs, 2018 ’ Countering violent extremism’ https://www.homeaffairs.gov.au/about/national-security/countering-violent-extremism
15.  UN Human Rights Committee, general comment 34, UN Doc CCPR/C/GC/34
16. ICCPR, art 19 (3)
17. International convention on the elimination of all forms of racial discrimination (ICERD) art 4 (A)

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[1] Justice, 2018 ‘New laws to target incitement of violence’ https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/new-laws-target-incitement-of-violence.aspx > 5 June 2018

[2] Australian Human Rights Commission campaign, ‘Racism. It stops with me’ <itstopswithme.humanrights.gov.au/why-racism> 27 January 2017

[3] Equality before the bench book, 2009 https://www.lawsociety.com.au/sites/default/files/2018-03/Equality_before_the_Law_Bench_Book_0.pdf

[4]  Shennan, 2013 ‘Gay hate: the shameful crime wave’ Sydney Morning Hearld https://www.smh.com.au/opinion/gay-hate-the-shameful-crime-wave-20130303-2fe9w.html

[5] Australian Human Rights Commission ‘Freedom of information, opinion and expression’ https://www.humanrights.gov.au/freedom-information-opinion-and-expression

[6] ICCAC Act 19 (3)

[7] Rachel Olding, 2015 Sydney Morning Herald “ Radical Muslim leader’s anti-Semitic rants referred for criminal charges”

[8] Redfern legal centre, 2017 ‘Response to the consultation on serious vilification lawns in NSW

[9] Kingsford legal centre, 2017 ‘Review of serious radical vilification offence’

[10] Schedule 1, Division 15c, Anti- Discrimination legislation amendment (Vilification) bill 2016

[11] Moraes, 2018 ‘An overview of hate crime’ https://www.whoishostingthis.com/resources/hate-crime/#hate-crime-australia

[12] Legal research, 2018 ‘NSW target threats or violence on ground of sexuality, race, religion. >7 June, 2018 https://www.timebase.com.au/news/2018/AT04726-article.html

[13] Nour Haydar, 2018 ‘ NSW hate speech laws to be toughened to stop violent threats online or in the street https://www.abc.net.au/news/2018-06-05/nsw-hate-speech-laws-to-be-toughened/9837816 > 5 June 2018

[14] Department of home affairs, 2018 ’ Countering violent extremism’ https://www.homeaffairs.gov.au/about/national-security/countering-violent-extremism

[15] UN Human Rights Committee, general comment 34, UN Doc CCPR/C/GC/34

[16] ICCPR, art 19 (3)

[17] International convention on the elimination of all forms of racial discrimination (ICERD) art 4 (A)