When personal safety must trump perceived free speech

An Islamic preacher breached the racial discrimination act but it wasn’t federal and state authorities who took action. It’s unacceptable the Jewish community been left to fend for itself.

Islamic preacher Wissam Haddad and his solicitor, Elias Tabchouri, outside court. Picture: Jane Dempster

The real lesson from this week’s Federal Court ruling against Islamic hate preacher Wissam Haddad is not to be found in the judgment.

It is to be found in the fact that federal and state authorities were mere spectators during this case, sitting back and watching as the Jewish community was left to fend for itself.

That cannot be allowed to happen again.

The first responsibility of federal and state authorities is to protect all parts of the community by ensuring the law can deal with emerging threats to community safety.

Despite waves of criminal law reform in response to surging anti-Semitism, the fact that Haddad faced civil proceedings, and nothing more serious, is revealing.

There is, of course, no suggestion that Haddad engaged in criminal conduct. But his case does highlight a gap in the law.

It suggests the true nature of the evolving threat to society has not yet been properly understood, let alone addressed by criminal law reform.

What we are facing is not merely an epidemic of hate speech against Jews, but the normalising of public discourse that creates an imminent risk of violence.

Those responsible are doing so with impunity. There is no law that could be used by police to crack down on those who create an imminent risk of violence.

No society can be expected to tolerate such a clear gap in the law.

The problem is that much of the community, including many politicians, continue to view this as a free-speech issue when it’s really about personal safety.

Just as nobody has a right to shout “fire” in a crowded theatre, nobody should be free to incite an imminent risk of violence against anyone.

Evidence of this gap in the law is apparent from the absence of criminal prosecutions despite surging threats and disparagement of Jews since the terror attacks on Israel on October 7, 2023.

Executive Council of Jewry deputy president Robert Goot. Picture: Nikki Short

Haddad was not called before the Federal Court by the police. He was held to account because leaders of the Jewish community, Peter Wertheim and Robert Goot, were sick of waiting and launched civil proceedings under section 18C of the Racial Discrimination Act.

After the verdict, Wertheim still seemed frustrated that federal authorities had not launched criminal prosecutions.

“So we don’t know whether stronger laws are needed, but if the authorities believe that those laws were not sufficient to prosecute in a case like this, or in the case of the Opera House steps and the chanting of ‘F**k the Jews’ and much worse, then clearly the laws are in need of reform,” Wertheim said.

The problem is that state and federal governments have struggled to design laws that cover the full range of hate speech.

At the lower end of the hate speech spectrum is section 18C which deals with hurt feelings: whether people have been offended, insulted, humiliated or intimidated.

The test for liability under 18C does not invoke the standards of the general community – a fact that limits the opprobrium resulting from an adverse finding.

Instead, judges dealing with 18C are required to invoke the standards of a hypothetical ordinary, reasonable representative of the group that claims to have been offended, insulted or humiliated.

At the top end of the spectrum are well established provisions for dealing with incitement of violence – a serious crime that is difficult to prove.

The problem is in the middle of the spectrum. What should be done about speech that falls short of inciting violence, but which goes beyond merely causing hurt feelings?

Victoria and NSW have both decided to criminalise speech that falls short of inciting violence but which encourages hate – a move that introduces an uncertain standard into criminal law and which goes against last year’s report by the NSW Law Reform Commission.

Criminalising hate might sound attractive. But it is asking for trouble.

Executive Council of Jewry co-chief executive Peter Wertheim. Picture: Nikki Short

The NSW Law Reform Commission, under the leadership of former Chief Justice Tom Bathurst, made the point last year that opinions will differ on exactly what that term means.

Bathurst and the Law Reform Commission were right. Vague laws solve nothing. There is a better way.

One of the most promising ways of closing the gap, while maintaining the rigour of the law, has been proposed by Wertheim’s organisation, the Executive Council of Australian Jewry.

Last year, when the federal government was considering this issue, Wertheim suggested that the law should no longer merely target incitement of violence, but should broaden its focus to criminalise speech that promotes, advocates or glorifies the use of violence.

This would avoid the vagueness of laws that seek to criminalise hate, but would nevertheless make it possible to crack down on a clear category of speech that currently does not attract criminal liability.

And the key factor in defining that new category of unlawful speech would be the encouragement of violence – which is apparent almost every weekend in our biggest cities.

A similar approach was outlined nine years ago by Lorraine Finlay, who is now Human Rights Commissioner.

With co-authors Joshua Forrester and Augusto Zimmermann, Finlay argued that 18C should be replaced with a new criminal law targeting speech that incites an “imminent danger of violence”.

It’s unfortunate that these ideas have not been adopted. They target the reality of what is happening in society while avoiding the risk of subjective application of vague terms.

Section 18C is not the answer. Using this law to launch civil proceedings underplays the seriousness of the threat confronting society.

Chris Merritt is vice-president of the Rule of Law Institute of Australia