Minister for Multicultural Interests, Dr Mike Nahan

Minister for Multicultural Interests, Dr Mike Nahan

In every religion there is love yet love has no religion Rumi

I have written before about the need for religious vilification legislation in this and other states in Australia. Currently there is only one state that covers this area and that is Victoria. That state has a “Racial and Religious Intolerance Act”. Section 25 of that Act provides the following:

Offence of serious religious vilification

(1)     A person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely—

(a)     to incite hatred against that other person or class of persons; and

(b)     to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.

Note

“Engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

(2)     A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note

“Engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

(3)     For the purposes of subsections (1) and (2), conduct—

(a)     may be constituted by a single occasion or by a number of occasions over a period of time; and

(b)     may occur in or outside Victoria.

(4)     A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.

This has come to the forefront in recent days because of a case that is being played out there.

Details of that case were reported in The Age here:

In summary the details are as follows: “An Australian woman has been charged with religious vilification after her Facebook post last month calling for “all mosques to be burnt down with the doors locked at prayer time” went viral.

However, the woman claims she cannot be charged with racial vilification because she does not acknowledge Islam as a religion. She believes it is an “evil, hateful ideology”.

She made the post calling for the mosques to be burnt down on November 27.

The woman may be the first person charged with religious vilification in Victoria for a social media post.

In WA and other states there would be no question that her defence would be successful. However, in Victoria, the existence of the Act as cited above will make it difficult for her defence to succeed. In February of 2016 that matter will be played out in the courts there.

Why am I arguing for religious vilification legislation in this state? Since 2001 the predominant target group for vilification all around the world has been the Islam faith adherents. Even in the last few weeks we have had the “Pig’s head incident” at UWA which was reported in The Stringer here:

This is an incident that could and should have been caught by this type of legislation. However, in WA the lack of any legislation around religious vilification has meant that the perpetrator walks away scot-free.

Some time ago I also wrote of the ridiculous outcomes of this lack of protection here:

“She entered the Northbridge tunnel in her little 4 Cylinder car. She adjusted her Hijab on her head and commenced her drive of the 1.6 kilometres to get to West Perth. She was in the left lane. Out of the corner of her eye she glimpsed a car coming up on the inside emergency lane. Despite thinking that this was odd, she did not change her focus from the journey ahead of her. The little red car on her inside pulled up near her. All of a sudden the driver and the passenger in the front seat started gesticulating at her. Then the abuse began. “Towel head, Raghead” etc etc. “Muslim scum, go back to where you came from. Stop spoiling Australia” was just some of what she heard. Of course, there were also the obligatory swear words interspersed in between all of that. She was shaken and disturbed. Here she was, an Australian of South African Indian descent, a single girl in a foreign land. But this was home. This had been home for the last ten years. She belonged here – or did she? Weren’t the people in the car questioning her right to be here? Weren’t they saying that somehow she did not “fit” in here because of her religion? She reflected on the fact that Islam had been a part of Australia’s heritage since the gold rush days. Cameleer’s of Afghan ethnicity and more often than not also of Muslim faith had been coming here for years. So why was she now being told by these people that she did not belong?

The abuse continued unabated for the 1.6 kilometre journey. By the time she arrived at West Perth she was shaken and trembling with fear. She rang the one person she thought might be able to help. Pulling up in the emergency lane she rang me, then the President of the peak advocacy body for ethnic communities in this town. I was absolutely staggered to hear the blubbering mess at the other end of the phone. Here was a girl who I regarded as one of the most capable, erudite and tough young women I had ever met. And here she was completely shattered and shaken at the experience that she had just endured.

But I knew what to do. After all had I not just recently got the Gallop government to change the provisions of the WA Criminal Code to toughen up the racial vilification sections? And did we not have CCTV footage of the people perpetrating this act of racism? Conversations began over the next few days with WA Police.  My friend came with me to have those discussions. We viewed the CCTV coverage. The police then identified the couple in the car as people resident in Bunbury, south of Perth. So we had the perpetrators, we had the evidence of their offending behaviour and we knew exactly where they lived. Problem solved?

Not quite. The WA Criminal Code had been amended to increase the penalties available to the judiciary to mete out in these circumstances. The penalties would have been as high as 5 years in jail for a minor offence and 14 years for a major offence.

Section 77 of the Criminal Code says:

“Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years.”

And

Section 78 says:

“Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years”

Yes, we have got them! The charges could be laid by WAPOL and this would put an end to the issue.

A week later the call came from the Director of Public Prosecutions, Robert Cock. Robert is now head of the Parole Board in WA. A time was made to meet with him and then the advice was provided that there was no hope of success for the police in this matter. If you go back over the provisions above, sections 77 and 78 of the Criminal Code is quite specific and makes reference to “animosity towards, or harassment of, a racial group or a person as a member of a racial group….” And herein lay the problem, Islam was and is not a “Racial group”. It is a religious or faith group. And religious and faith groups have no recourse under this legislation.

Then commenced a fairly extensive process of research to determine which groups would be covered and which would not. The case of Mandla v Dowell-Lee in the United Kingdom (which also has application here in Australia) was one of the significant cases examined. The main issues to come out of that case were as follows:

In the United Kingdom the landmark legal case Mandla v Dowell-Lee placed a legal definition on ethnic groups with religious ties, which in turn has paved the way for definition of ethnoreligious group. Both Jews and Sikhs were determined to be ethnoreligious groups under the Anti-Discrimination (Amendment) Act 1994 (see above).

The Anti-Discrimination (Amendment) Act 1994 made reference to Mandla v Dowell-Lee which defined ethnic groups as:

  1. a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;
  2. a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant:
  3. either a common geographical origin, or descent from a small number of common ancestors;
  4. a common language, not necessarily peculiar to the group;
  5. a common literature peculiar to the group;
  6. a common religion different from that of neighbouring groups or from the general community surrounding it;
  7. being a minority or being an oppressed or dominant group within a larger community. For example, a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups

The significance of this case was that groups like Sikhs and Jews could be protected under the Race Relations Act 1976.

On the basis of the above case what we now see in WA is that the WA Criminal Code has very substantial and tough provisions which I had a lot to do with during the Gallop administration in Western Australia. (My involvement herein can be found in Hansard during the parliamentary debates that occurred at the time). But most importantly we have provisions that relate to “Racial Groups” only and do not apply to religious groups. However, Jews and Sikhs would, because of the findings in the case cited above, be able to avail themselves of these provisions.

Religious groups such as Hindus, Christians, Muslims, Bahai’s and others will have no access to the provisions. It is incongruous with the fact that since September 11th 2001 most acts of vilification around the world have been against people of Islamic faith. And yet they have no protection. So when the Ar Rukun Mosque in Rockingham is smeared with graffiti, nothing can be done via the WA Criminal Code racial vilification sections.

The bottom line is that the major human rights violations in recent times against the Muslim community in particular are going without charge. This approach has to change. It is also confusing that certain religious groups such as Sikhs and Jews are able to access protection and charge but others are not able to. We need to have clarity around this issue and urge the Minister for Multicultural Interests, Dr Mike Nahan to seriously consider this as a priority.