The failure of NSW authorities to prosecute the Australian head of Hizb ut-Tahrir, who called for deadly violence against Jews, means anyone is now free to call for the killing of racial minorities. Race haters can enjoy an open season. Go ahead. No one will mind what you say — at least, not in NSW.
This travesty began last year with a complaint lodged by the NSW Jewish Board of Deputies with the Anti-Discrimination Board of NSW, centring on video of a speech delivered in July 2014 by Ismail Alwahwah. In his speech, given ostensibly in support of the people of Gaza, Mr Alwahwah called for an end to the ‘repeated aggression’ perpetrated by the ‘illegitimate entity’ (he was referring to Israel), and the ‘ending of its occupation of Palestine.’ Mr Alwahwah then issued a blood-curdling warning: ‘Judgement Day will not come until the Muslims fight the Jews. Tomorrow you Jews will see what will become of you — an eye for an eye, blood for blood, destruction for destruction.’ Pretty unequivocal views, and all of them captured on YouTube for the world to see and hear.
This is not just a matter of hurt feelings. Mr Alwahwah went well beyond exercising his right to freedom of speech; he is likely to have committed a criminal act by inciting not just hatred but also physical violence. The NSW race hate law is not difficult to understand. Amendments made in 1989 to the Anti-Discrimination Act NSW 1977 created a specific criminal offence of serious racial vilification, s20D, under which five elements must be established beyond reasonable doubt for a prosecution to succeed.
There must be a public act that incites hatred or serious contempt for a person or group of persons on the grounds of race, by means that include threatening physical harm or inciting others to threaten harm towards a person or group of persons, or threats to property.
This is a high evidentiary threshold and, at times, concern has been expressed that the reason so few prosecutions have been brought under s20D is that the standard is too high. Others, by contrast, say the reason we’ve not seen prosecutions is that the law, mostly, is working. But the failure to prosecute Hizb ut-Tahrir makes a mockery of that claim.
It would be hard for Mr Alwahwah’s supporters to say he was misunderstood, misquoted, or taken out of context. Indeed, no one in the audience (which apparently included Man Haron Monis), nor any member of Hizb ut-Tahrir, nor Mr Alwahwah himself ever denied the words had been uttered.
The NSW Jewish Board of Deputies was horrified by Mr Alwahwah’s hateful speech and reported him to the Anti-Discrimination Board, part of the NSW Department of Police and Justice. The Board, in turn, was satisfied that Hizb ut-Tahrir and Mr Alwahwah had breached the state’s race hate laws and passed the case to the DPP with a recommendation to prosecute. On the face of it, the complaint lodged with the Anti-Discrimination Board against Hizb ut-Tahrir should have been easy to progress because all five elements of s20D offence were present. No attempt has even been made by Hizb ut-Tahrir to deny the existence of those elements. In a media release, the organisation merely elaborated that Mr Alwahwah’s remarks were not directed at Jews in general. Rather, they were ‘directed to that illegitimate entity that has occupied Palestine and its brutal crimes, and towards those that occupy Palestine in their capacity as occupiers and without consideration to their race.’
However, under s20D it does not matter whether one vilifies all Jews or merely some Jews. A prosecution can be brought simply when there has been a public act that incites hatred on the grounds of race. Mr Alwahwah’s remarks exactly fitted the provisions of the statute. Yet the NSW authorities failed to act on the recommendations of the Anti-Discrimination Board.
Law can have an educative function, a view upheld by the NSW Legislative Council’s Standing Committee on Law and Justice in 2013 which said, ‘Prosecutions are a means by which the community can be educated about legislation… and provide a platform for the State to declare that racial hatred is unacceptable in the community.’ Yet in this instance, the legal authorities have declared the exact opposite: racial hatred is acceptable in NSW.
Instead of explaining just how it is that an individual can call for the bloody destruction of Jews and yet somehow not face prosecution for an act of serious racial vilification, the authorities have gone to ground. The Director of Public Prosecutions refers the matter to the NSW Police, and the police say their strenuous investigations have led them to a blind alley.
Did the DPP think it would be too difficult to gather a jury to hear a trial brought under s20D? Or did the police decide that the real offence occurred not when Mr Alwahwah uttered his noxious words but when some unknown person uploaded the video to YouTube? No one is answering. Nor is anyone held to account. A law intended to fulfil the educative and symbolic roles of declaring the unacceptability of racism languishes; and those charged with upholding and applying laws intended to reinforce social cohesion do nothing.
This all makes a mockery of the earnest, anguished debates we endured about the eradication of racism and the protection of vulnerable minorities in response to the Abbott Government proposing abolition of s18C of the Racial Discrimination Act. If an Anglican bishop had made remarks about Muslims comparable to those Mr Alwahwah made about Jews, there would have been hell to pay both in the courts of law and the courts of public opinion. The tinder of Islamopobia is much more likely than that of anti-Semitism to explode in fire.
In a speech to the National Press Club in July 2015, Race Discrimination Commissioner Tim Soutphommasane said, ‘I hold serious concerns about a deterioration of community harmony — a deterioration that warrants close attention from government and leaders.’
But Dr Soutphommasane’s preoccupation with more subtle forms of cultural racism have made him slow to call out the vicious anti-Semitism espoused by Hizb ut-Tahrir. Regardless of his concern, deterioration of community harmony is far more likely to occur when a section of the community gets a free pass to call for the deaths of fellow Australians solely on the basis of their ethnicity. The state’s failure to prosecute Hizb ut-Tahrir threatens not only Jews, but places every ethnic group in NSW at risk by declaring open season for race hate.
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