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The risks of unfettered free speech

While defending the right to speak freely, Morry Bailes argues that stronger legislation is needed to stop the spread of hate speech.

Jan 11, 2024, updated Jan 31, 2024
Police at a rally in Sydney. Photo: Dean Lewins/AAP

Police at a rally in Sydney. Photo: Dean Lewins/AAP

Much has been said about the newest wave of antisemitism that has rolled across the globe, arriving like a slap in the face to those who thought that following the horrors of the Holocaust, and the establishment of the independent state of Israel, those past sentiments had been expunged from our world.

But it has not been so. Like an evil phoenix back from the ashes, and following a brutal and criminal terrorist attack on the state and citizens of Israel, the venom and spectre of antisemitism is in full sight once more.

Anti-Jewish protagonists in Australia have been a strange conjunction of some supporters of the Palestinian people, who apparently think because there is conflict between the state of Israel and a terrorist organisation, all the old and false caricatures of the Jewish people are somehow fashionable and justified again, as if history has taught us nothing. They are joined by some Muslims, preaching hate from mosques, with seeming impunity.

Then we have neo-Nazis spouting anti-Jewish hate, as if we have any interest in a return to the wickedness of Nazism. Finally, it is rounded out by a failure by some Australians in not calling antisemitism out in order to stop this disgusting attack on a religion and a people, who are our fellow Australians, whether we agree or disagree with the use of force employed by the government of Israel in its response to acts of terrorism.

To recite just a little of what we have heard recently in Australia, it includes reported statements such as ‘fuck the Jews’ and ‘gas the Jews’, from pro-Palestinian supporters near the Sydney Opera House late last year. The latter statement, a clear reference to the treatment of the Jews at the hands of one of the most evil regimes of recent history, namely the attempted genocide by the Nazis during the Second World War. What happened to everything that we have learned from that terrible conflict and episode in our recent history?

We have heard the sentiment that the state of Israel should not really exist, as they demonstrated on behalf of Palestinian people.

After that we had the first of a series of appalling statements made by Muslim preachers and clerics, starting with a sermon in which the preacher amongst other statements said: ‘oh Muslim, oh believer, there is a Yahud (Jew) behind me, come and kill him’. There was an appropriate adverse reaction from the community and some parliamentarians, but the comments had still been made. A police investigation followed, but more on that later. Other clerics swiftly followed, one calling Jews ‘descendants of pigs and monkeys’, another describing Jews as ‘monsters… thirsty for bloodshed’, and a call by yet another that Muslims should spit on Israel so that ‘the Jews would drown’. One can only imagine the Australia-wide reaction had these remarks had been made of other peoples or religions.

All of this ought to cause us to examine the state of our laws. You may have expected that inviting fellow Muslims to kill Jews, in describing Jews as descendants of pigs and monkeys and calling for Jews to be gassed and drowned might amount to crimes. Not so. Having commenced a criminal investigation in November last year into the ‘kill Jews’ sermon, the police dropped it a month later. Why? Because notwithstanding the conduct and words described, no crime in Australia had been committed, neither in state or federal law. The explanation, if one can find one, might be that something about the interpretation of the section establishing the offence was sufficiently vague or uncertain to indicate that a prosecution would not have been successful.

Potential statutory civil causes of action or offences may have been enlivened, by such remarks, such as under the Racial Discrimination Act, but nothing criminal. There has rightfully been a call for an examination of the adequacy of our laws. Until then such people as some Muslim clerics and preachers, emboldened by a lack of any meaningful response from authorities, will presumably continue with their hateful characterisation of Jewish people, completely contrary to the harmony that most Australians wish to embrace in this great multicultural society that we have grown in our equally great country. Hateful statements against religions and against races of people strike at the very heart of what has made this country the success it has become. They are in every aspect an embodiment of what might be called unAustralian. They are to be unconditionally rejected.

What then must occur in law? We are of course very reticent as a community to criminalise speech. However, there are instances where we have, as we have with some symbols such as the Nazi swastika, and we have long had laws criminalising incitements to violence. In the state where most of this current antisemitic dialogue has been occurring, New South Wales, its laws have in fact led the nation. The Crimes Amendment (Publicly Threatening and Inciting Violence) Act was passed by the New South Wales parliament  in 2018. It created criminal and civil sanctions for hate speech and seemed to reasonably balance those penalties with the preservation of freedom of expression. Earlier last year New South Wales law was further amended to strengthened by the addition of section 93Z of the Crimes Act (NSW), that created criminal and civil penalties for speech that ‘intentionally or recklessly threatens or incites violence towards a person (or group of persons)in public on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status.’

However, those laws have not yet proven effective against the bigotry and hate speech that we have heard espoused in New South Wales to date. Premier Minns intimated a review of that state’s laws would be undertaken. On the subject of law reform in this area, as vile as recent antisemitic utterances have been, great caution must be adopted in order not to stifle legitimate freedom of speech that sometimes becomes a casualty in such debates. As the former federal Attorney-General George Brandis said, as a nation we ‘have the right to be bigots’. It is a very fine line to be drawn indeed. However when speech incites violence, the law ought to step in.

Hateful statements against religions and against races of people strike at the very heart of what has made this country the success it has become

On the last sitting day of the New South Wales Parliament of 2023 the Minns government and the New South Wales parliament did pass further amendments to law, by tweaking section 93Z, to enable prosecutions to occur more easily. We must all wait and see whether the most recent statements are successfully actioned by authorities. Only then will we know if the amendments have been successful.

What lessons then for South Australia? As a state we have the Racial Vilification Act passed in 1996. That Act established an offence of ‘inciting racial hatred or severe ridicule or contempt of a person or group… on the basis of their race by threatening physical harm or harm to property or inciting others to do so’. But is that offence sufficient to address our current spate of antisemitism, particularly given the recent New South Wales experience? New South Wales law is a lot more up to date than ours, and has thus far failed.

It is fair to suggest therefore that as a state we are somewhat off the pace. Whilst our government says it will ban Nazi salutes and symbols, we may be seen as playing catch up on questions of suitable laws to address the current and unacceptable wave of antisemitism. The time to act is now, and it is important that we hear from our political leaders as to what our state will do to deal with the present rash of antisemitic sentiment.

Whilst in 2022 our state upper house, the Legislative Council, adopted the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, as have the parliaments of Victoria, New South Wales, and the Commonwealth – notwithstanding advocacy at the time by the Australian Friends of Palestine Association (AFOPA) arguing against the adoption of the definition -we need a wholesale look at how to stop antisemitic hate speech in its tracks.

In our considerations an important distinction must be drawn between legitimate criticism of the state of Israel and the Jewish people themselves. Unsurprisingly there are plenty of diverse opinions amongst Jewish people, in the state of Israel and worldwide, as to how Israel should best handle the current circumstances in Palestine and the Gaza. Anthony Blinken, the current Secretary of State, has made it clear that while the US supports Israel, it is increasingly unhappy about the extent of the Israeli reprisal in Gaza and the mounting toll of deaths. That however is not and never should be considered antisemitic; it merely amounts to an analysis of the appropriateness of the use of force by a state.

But what we have heard recently in Australia is most definitely antisemitic, and our state and federal law must be in a position to respond. That, and accurate education of our younger Australians, some of whom have clearly forgotten or have not been adequately taught the lessons of the first half of the 20th Century. As Nobel Laureate and concentration camp survivor Elise Wiesel said in 1986, ‘I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented..

As a nation of Australians and a state of South Australians, we should swear to do the same. We look to our elected government and state and federal parliamentarians to ensure the present and unacceptable attack on the religion and peoples of the Jews is stopped. To do otherwise is indeed adopting a position of ‘neutrality’ that hands the victory to the ‘oppressor’ as we have clearly seen in the recent events in New South Wales. Let’s put a stop to this now, in a manner that preserves our right to freedom of expression but which enables successful prosecutions for criminality when such instances arise irrespective of what race or creed has been vilified and threatened. This is achievable law reform.

The vast majority of Australians are not racist, nor against religious practice and belief. We are a nation of freedom and free choice. Our laws must respond to eradicate this dreadful return to something that ought to have been expunged a very long time ago. Law reform should also address the using of the Hamas call ‘from the river to the sea’. That incitement is a clear and unequivocal call for the genocide of Jews and the destruction of the Jewish state. It is the catchcry of a terrorist organisation. To learn that some of our school students have uttered such hatred is a reflection of everything we have gotten wrong in the education of our young.

We have been there before. It resulted in the gassing and killing of six million Jews. Never again. Our legislators must act.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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