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)

[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)