There is every chance this case will expose weaknesses and loopholes in the federal law that is supposed to protect the community from hate speech.
Haddad is facing civil proceedings under section 18C of the Racial Discrimination Act over five speeches about Jews that he is defending on grounds that could finish up in the High Court.
This case will determine if Haddad and other Islamic preachers can avoid liability under section 18C by ensuring their remarks about Jews are drawn from the Koran and other Islamic scriptures.
If he succeeds on that point, it would mean the reach of 18C would be curtailed in exactly the same manner as the recently enacted “hate speech” law in NSW.
That NSW Crimes Amendment (Inciting Racial Hatred) Act was ostensibly designed to suppress hate speech but here’s the killer point: it contains a loophole that protects the incitement of racial hatred if it draws on a religious text.
The NSW Act says criminal penalties of up to two years in prison do not apply “to an act that consists only of directly quoting from or otherwise referencing a religious text for the purpose of religious teaching or discussion”.
In practical terms, that provision is only likely to affect Islamic preachers and Jews.
It means NSW has given hate preachers a way of avoiding liability for hate speech which deprives Jews of equal protection under the new law.
The issue now is whether 18C will go the same way. And if it does, how should federal parliament respond?
The defence document filed by Haddad’s lawyers with the Federal Court shows he will argue that 18C should operate in a way that is remarkably similar to the loophole that was approved by the NSW parliament.
He intends to argue that his speeches were derived in substance from the Koran and another Islamic text and comprised direct and allegorical references to and from those scriptures.
He was, so his argument goes, merely engaged in religious teaching in response to requests for sermons addressing the war in Gaza and provided political commentary on the war from a religious perspective.
He claims this should be protected from liability because of the public interest defence in section 18D of the Racial Discrimination Act.
If he is found to be liable, his defence document asserts this would mean 18C is unconstitutional because it breaches the constitutional ban that prevents federal parliament from making laws prohibiting the free exercise of religion.
That constitutional ban, contained in section 116 of the Constitution, means this affair could eventually finish up in the High Court which would have the final word on whether the Constitution prevents 18C from applying to remarks drawn from the Koran.
If Haddad wins on this point, it would discredit 18C as an effective law to protect Jews against hate speech – just like the new hate speech law in NSW.
This case has been brought by Peter Wertheim, the co-chief executive of the Executive Council of Australian Jewry.
His statement of claim says the imputations contained in the five speeches include that Jews are the descendants of apes and pigs and Muslims will fight Jews towards the end of time and Jews should be killed.
Section 18C is already one of the most contentious laws on the federal statute book, not only because of its impact on public debate, but because of the potential for its vague terms to be given a subjective application.
It seeks to impose civil liability for speech that offends, insults, humiliates and intimidates on the basis of race, colour, national or ethnic origin.
But it does not require anyone to be actually offended, insulted, humiliated or intimidated. It’s up to a judge to decide whether a particular act is “reasonably likely” to offend, insult or humiliate.
And that question is not determined by reference to the standards of the general community, but by the standards of a reasonable representative of those who lodge complaints.
In 2016, long before Lorraine Finlay was appointed Australia’s Human Rights Commissioner in 2021, she was co-author of a book that argued 18C was constitutionally invalid.
Because of the intense politicisation of the debate over this provision, nothing was done to address the constitutional vulnerability that was outlined in her book, No Offence Intended – Why 18C is Wrong.
Next week, when Haddad’s lawyers outline their argument, both sides of federal politics might finally accept they should have paid more attention to the analysis of this provision by Finlay and her co-authors, Joshua Forrester and Augusto Zimmermann.
If they had listened to these lawyers nine years ago, 18C could have been replaced – not with another law of questionable validity – but with a clear, soundly based criminal law whose basic drafting is outlined in their book.
Instead of imposing civil liability for hurt feelings, their reform proposal would impose criminal liability for incitement of enmity or violence based on racial identity, colour, ethnicity or nationality.
Unlike section 18C, there would no defence.
That would eliminate the possibility that defendants could argue there was some public interest in allowing them to incite enmity or violence on the basis of race.
By failing to address the constitutional vulnerability
of this provision, federal lawmakers have done nobody any favours. They should have read the book.
Chris Merritt is vice-president of the Rule of Law Institute of Australia
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Next week, when Islamic cleric Wissam Haddad appears in court to defend his remarks about Jews, his arguments should cause a moment of reflection – and embarrassment – on both sides of politics.