________________________________________________________________________

Muslim Legal Network Inc.

Submission regarding the Exposure Draft of the
Freedom of Speech (Repeal of Section 18C) Bill 2014
From Australian Muslim Community Organisations
on behalf of our member communities
_________________________________________________________________________
In the name of God, Most Merciful, Most Gracious
This submission is made by the Muslim Legal Network Incorporated (MLN). The MLN is an
association of Australian legal professionals and law students with chapters in Victoria, New
South Wales and Western Australia. It also has, as members, non-legal professionals who are
actively involved in the activities of the MLN. We seek to provide a balanced perspective to
government on the potential impact of proposed legislation. This perspective is based on
community consultations.
We thank the Attorney-General and the Federal Government for this opportunity to respond
to the proposed changes to the Racial Discrimination Act 1975 (RDA).








Dated: 2 May 2014


Page 2
2 May 2014

1. Modern Australia is a proud multicultural and multi-ethnic nation, which benefits from its
diverse cultural and religious communities. Australian Muslims are an integral part of this
rich, social fabric and desire to live and contribute to a progressive, liberal and democratic
Australia. All Australians deserve to have their legal and civil rights protected.
According to the Hon. Mr Malcolm Turnbull, Federal Member for Wentworth and Minister
for Communications:
history had proven hate speech was dangerous... people who peddle racial
hatred seriously undermine the stability and harmony of our country
1
.
A. Grave concerns regarding the Exposure Draft of proposed changes to the RDA
2. Any watering down or perceived dilution of the RDA would send the iniquitous message
to our Australian community that hate speech was becoming an acceptable aspect of our
society, arguably opening the floodgates to potentially more abuse. The upshot of this, in our
considered view, is that the right to live free from racial or religious vilification, abuse and
intolerance (all of which Australia is a hallmark of globally) would be greatly diminished.
3. Perceptions are important, and there is a danger in even proposing to change the RDA or
commenting that people should be free to be bigots. These perceptions and comments
greatly increase the risks of communal anxiety, and increased racial intolerance, vilification
and abuse.
4. In our view, this very attempt to reduce the protections offered by the RDA is taking place
during a time where there are very disturbing hate crimes occurring in Australia against
members of the indigenous community
2
, Islamic centres
3
, Muslim women
4
and members of
the Jewish community
5
. In fact, the proposed changes arrive in a time where we are seeing
the rise of right wing, intolerant, militant organizations such as Australian Defence League
(ADL) which incites its followers to violence and has in recent months escalated a vicious

1
Stefanie Bologh and Patricia Karvelas, 18C not stopping racism, says law expert James Allan, The Australian
(online), 28 March 2014 <http://www.theaustralian.com.au/business/legal-affairs/c-not-stopping-racism-says-
law-expert-james-allan/story-e6frg97x-1226866974817#>.
2
Helen Davidson, Woman turns herself in over Gold Coast bus attack on elderly man, The Guardian (online),
28 February 2014 <http://www.theguardian.com/world/2014/feb/28/racist-gold-coast-bus-attack-victim-
complaint-girls-involved>.
3
Megan Gorrey, Canberra Islamic Centre hit by vandals, The Canberra Times (online), 13 April 2014
<http://www.canberratimes.com.au/act-news/canberra-islamic-centre-hit-by-vandals-20140413-36ltr.html>.
4
Melanie Gardiner, Thugs bash Muslim schoolgirl wearing hijab in Wantirna South, Leader, 3 December 2013,
<http://www.heraldsun.com.au/leader/east/thugs-bash-muslim-schoolgirl-wearing-hijab-in-wantirna-
south/story-fngnvlxu-1226773375213>.
5
http://www.ynetnews.com/articles/0,7340,L-4446183,00.html.
Page 3
2 May 2014

hate campaign against Australian Muslims.
6
The proposed reforms are likely to encourage
organizations like the ADL as they stalk and photograph Muslim women, spray invectives at
Muslims in public places and threaten to blow up an Islamic school
7
. These reforms offer
promoters of hatred a form of validation to enable them to recruit more followers. This will
undermine the peaceful coexistence of the diverse communities across Australia.
5. As evidenced by the actions of convicted terrorist Anders Behring Breivik, there is
evidence that racial and religious hatred can encourage latent psychopaths to commit violent
acts on the wider community. According to his psychiatrist, Breivik was exposed to Anti-
Muslim, Islamophobic material that motivated him to commit the mass murder of people he
identified as being connected to Islam and Muslims in Europe
8
.
B. Freedom of speech is a very important right but not an absolute right
6. Freedom of speech is not absolute, and is limited for good reason in several areas, such as
defamation, libel and sexual discrimination, as well as racial discrimination.
7. Hate speech based on race, ethnicity or religion should be deplored and all members of
society should be protected from it. Just as freedom of speech should be valued, so should
the right of people to be part of a free and fair society without suffering the emotional, and
psychological and psychosomatic damage caused by hate speech.
8. Political philosophers such as Thomas Paine and John Stuart Mill have been quoted in
support for the importance of freedom of speech over protection from hate speech, however
they did not live in a modern multicultural society. In the days of Paine and Mill many forms
of sexual discrimination, which are no longer acceptable today, would have been the norm.
Just as sexual discrimination is unacceptable today, so too is racial discrimination
unacceptable in modern Australia with our society blessed with people from a multitude of
countries, ethnicities and faiths.
9. We believe that Australias multicultural society and our diversity are valuable and
important elements of modern day Australia. Harmony in a diverse society can be a delicate
thing, and hate speech puts this harmony at risk
9
.



6
ABC News, Inside the far-right group spreading fear through Muslim communities, Tensions between
Australian Defence League and Muslim community reach violent new heights, 22 April 2014, (Sean Rubinsztein-
Dunlop).
7
Ibid.
8
The Biography, Anders Behring Breivik, The Biography (online), 25 April 2014,
<http://www.biography.com/people/anders-behring-breivik-20617893#awesm=~oCpxEHoXzE9sCk>.
9
ABC News, above n 6.
Page 4
2 May 2014

C. The Racial Discrimination Act as it stands has been functioning well
10. The RDA is effective in creating an environment that supports multiculturalism and a
harmonious Victorian community. We also believe that the protections it provides and the
avenues it opens to conciliation are critical to a society that can see things from the
perspective of the vulnerable and less powerful.
11. The current legislation is to protect all Australians regardless of their backgrounds, not
just minority ethnic groups. It is here for the protection of all people, whether from a
minority or mainstream group from any racially abusive language by anyone. It forms a good
foundation to create a civilised, civic society for all.
12. In our view, the burden of proof bar for the existing legislation is already very difficult to
reach, so any proposed watering down would be a serious problem.
13. Particular communities may be perceived as strong or weak, united or fragmented, but
any individual within any of those communities may feel threatened, harassed, fearful or
disempowered when confronted with racially vilifying graffiti, incitement of racial or
religious hatred in the media, religious or racial abuse hurled from a passing car, people
calling for the death or elimination of a race on a sports field or when confronted by hate
speech on public transport.
14. The current legislation has also been very useful in helping to remove hate speech in the
online world. Surely, it is not in the Australian Governments interest to see this reversed.
D. The RDA needs to be strengthened if at all changed
15. We would not like to see the existing legislation changed, except to strengthen it by
explicitly adding religion into the protections.
16. By adding religion into the list in section 18B(b) and section 18C(1)(b) of the existing
Racial Discrimination Act race, religion, colour or national or ethnic origin, we believe
that many people of various religious affiliations and faiths would feel better protected,
accepted and respected as members of society.
17. The wearing of a religious head covering such as a hijab, turban, yarmulke, cross or other
symbol of religious observance should not make these people feel like they are wearing a
target for abuse. In a free and just society, this should not be the case. For effective freedom
of religion, people should be able to practice their faith in mutual respect, without fear,
intolerance or vilification.

Page 5
2 May 2014

E. Racial and religious intolerance, vilification, incitement of hatred and intimidation
are intolerable in multicultural Australia
18. This is not an issue specific to any one race or religion, but an issue for all members of
society. Over the past few months, 35 Victorian ethnic, community and faith organisations
have been discussing the issues involved and issuing statements expressing their concerns
about the potential watering down of the RDA. Several organizations within the Muslim
community have also been discussing the issues raised with deep concerns. One of the most
concerned of these communities is the Canberra Muslim community which, despite a rich
history of tolerance and coexistence with the local community, suffered a crippling attack by
vandals on the Canberra Mosque
10
.
F. Specific Response to Proposed Changes
Section 18B is entirely removed. This section is designed to ensure that if a person commits
an act prohibited under section 18C but does so for several reasons only one of which is in
order to insult, offend, humiliate or intimidate a person on the basis of race etc, then even if
that reason is not the dominant one, it will be treated as THE reason for the commission of
the prohibited act for the purpose of section 18C.
19. We do support the removal of section 18B. Its removal would elevate the burden of proof
required from someone who has been the target of hate speech. For example, if in a game of
soccer, a Muslim player is abused as an opposition player and is told to stop being a
terrorist, then we believe the victim should still be protected from the hate speech
component of the abuse. This may not be the case if section 18B is removed.
Sections 18C and 18D are also repealed but replaced by a new section 18AA. The major
changes here are that the words insult, offend, humiliate are deleted and replaced
subsection 1 with the word vilify and so the core prohibition is to commit an act
reasonably likely to vilify another person or group of persons or intimidate another person or
group of persons.
20. To insult, offend and humiliate are not trivial, and trivial cases under the existing
legislation do not get very far. The existing wording is practically the same as in section 28A
(offended, humiliated or intimidated) of the Sex Discrimination Act 1984 and we believe that
the existing wording supported by the reasonably and in good faith exemptions under
section 18D ensure a rational and responsible view of situations.



10
Gorrey, above n 3.
Page 6
2 May 2014

21. We would be agreeable to amending the wording to seriously offend, insult or
humiliate to ensure that there is no perception that trivial situations are included.
Nevertheless, we recognise that use of the word serious could be overly subjective and we
would favour a decision to maintain the current section 18C balanced by section 18D as a
better solution.
Vilify and intimidate are both defined in subsection 2.
22. Vilification as defined (inciting hatred) would concern itself with how the hate speech
affected a third party or audience, rather than the damage inflicted directly by the hate speech
on the target.
23. We welcome the introduction of the idea of vilification into the RDA, but believe that
by narrowly defining it as inciting hatred it is far too narrowly defined, unless it is used in
addition to existing protections rather than as a replacement of existing protections: offend,
insults or humiliate. People should be protected from direct racial and religious vilification
as well as incitement of hatred if we are to feel free to safely practice our faiths and cultures
in Australia.
24. Intimidation in the Exposure Draft is defined as to cause fear of physical harm. We
believe that this is too narrowly defined and that mental or emotional harm should be
included, which we believe is at least as serious as physical harm. Victims of intimidation
may not be seen as under threat of physical harm but the seriousness of emotional harm from
Aboriginal citizens being refused a taxi ride because of their race, or people being afraid to
leave their homes or actively participate in society because of emotional harm cannot be
underestimated.
25. Mental and emotional harm can cause physical harm through substance abuse, self-harm
and potentially suicide: these outcomes also need to be avoided. This has serious
implications for the individual and the community.
26. Emotional intimidation may actually deter people from participating fully in society,
including participating freely in public debate and discussion. People may avoid
participation out of fear of verbal racial harassment and the proposed new wording would not
provide any sense of protection.

Page 7
2 May 2014

By what standards should acts alleged to vilify or intimidate be judged? Subsection 3 states
that it is to be judged by the standards of an ordinary reasonable member of the Australian
community, not those of a particular group. This would mean that if words were uttered
about a person who is a member of Group A and by the standards of that Group the words
would be regarded as reasonably likely to vilify that person, that would not be enough to
constitute a breach of the new section UNLESS the words concerned would be so regarded
by an ordinary member of the wider Australian community as well.
27. The implication of the proposed subsection 3 is that there is such a thing as an ordinary
reasonable member of the Australian community. The Australian community is diverse and
there is no such thing as normal or ordinary. Does the ordinary Australian understand
what it is to be an Indigenous Australian, a Holocaust survivor, an African refugee, a Muslim
woman wearing a hijab, a Chinese family walking down the street or an Indian student on the
way to classes? All can feel intimidation, intolerance and alienation. All should feel
welcome, safe and valued as members of Australian society.
28. We would prefer to keep to the community standards test as applied in Eatock v. Bolt
11

where the court considered the likely impact on a reasonable member of that part of the
community vilified. We believe that is a rational approach as well as being more fair and
respectful to the community being vilified than the proposed wording.
29. We would prefer that the last part not by the standards of any particular group within the
Australian community be removed as it could be seen as offensive by many community
members.
Subsection 4 is in effect an exemption of words etc which are communicated in the course of
participating in the public discussion of any political, social, cultural, religious, artistic,
academic or scientific matter.
30. The most serious problem we have with the Exposure Draft is subsection 4. It excludes
vilification and intimidation if in the course of participating in the public discussion of any
political, social, cultural, religious, artistic, academic or scientific matter. We believe that
this is far too broad. Racial vilification and intimidation as defined should not be tolerated
under any circumstances and we would want subsection 4 as it stands to be deleted. The
proposed subsection 4 would exclude most imaginable situations making the proposed
legislation completely ineffectual and a virtual full repeal of the protections for which the
RDA was designed.


11
Eatock v Bolt [2011] FCA 1103.
Page 8
2 May 2014

31. We understand that subsection 4 aims to ensure that free speech, public discussion and
debate are not inhibited by subsection 1. However, we believe that the reasonable or in good
faith protection in the existing section 18D provides a reasonable and adequate protection to
freedom of expression. Hence, the reasonable or in good faith should be maintained and
not deleted.
18E (Vicarious liability) to be deleted entirely.
32. We do not hold a consensus view as to the repeal of section 18E.
18F State and Territory laws are not to be affected.
33. We believe that it is very important that the Federal RDA does not seek to exclude or
limit any concurrent State or Territory laws. We see the State laws as critically important and
as complementary to the RDA, such as the Victoria Racial and Religious Tolerance Act 2001
(Cth), which prohibits behaviour that incites or encourages hatred, serious contempt,
revulsion or severe ridicule against another person or group of people because of their race
and/or religion.
G. Alternative legal protections do not exist for some minority communities
34. The proposed reforms to the RDA will remove the minimal protections that exist for
Australian minority communities such as Australian Muslims who are not protected by the
Racial Hatred Act 1995 (Cth) (RHA). The RHA offers little to no protection for Muslims
who are often victims of vilification through social media
12
. The explanatory memorandum to
the RHA specifically refers to protecting minority communities including Muslims
13
.
However, Australian Muslims are not protected under the RHA which offers little
opportunity for the judiciary to determine Australian Muslims as belonging to a common
ethnic group or race, given Muslims are the adherents of a religion, Islam
14
.
35. The absence of an appropriate legal recourse for victims could lead to racially charged
situations resulting in communal violence and disharmony. This was observed by all
Australians when racism fuelled the Cronulla riots
15
.


12
Peter Manning, Dog Whistle Politics and Journalism: Reporting Arab and Muslim People in Sydney
Newspapers (Australian Centre for Independent Journalism, 2004) 52.
13
Explanatory Memorandum, Racial Hatred Bill 1994 (Cth), 2-3.
14
Ibid.
15
Babacan, Alperhan, and Babacan, Hurriyet, New racism and fear: the Cronulla riots and racial violence in
Australia (2007), 3 (10), Review Of International Law and Politics, 147-152.
Page 9
2 May 2014

H. Against Australian and International Norms
36. Australians have been afforded legal protection from racial discrimination since 1975.
Successive Australian governments, utilising the instruments of the International Covenant
on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD), have sought to ensure that we are legally
protected from deliberate acts of racial hatred. These international human rights instruments
are an ingrained aspect of the Australian psyche, irrespective of the manner of their
codification. The proposed reforms distance Australian law from international conventions
and norms.
I. Australians Urge Not to Change the RDA
37. The RDA currently protects vulnerable minority groups but we believe that these reforms
will fail to fetter racial and religious hatred in Australia. This is likely to result in
considerable community angst and disharmony.
38. We believe that our Muslim community, as all people in our Australian society should be
treated with dignity and respect regardless of their race or religion. In light of the seriousness
of this issue, Muslim community organisations, religious leaders & family members are
voicing their support for the position taken in this submission.

39. We would like to acknowledge the contribution of the Jewish Community Council of
Victoria in respect of this submission and the general discussion around the proposed
reforms.

40. The Muslim Legal Network and its co-signatory organisations (provided below) to this
submission represent the nearly 476,291
16
people of the Islamic faith in Australia.

If any further information is required, please do not hesitate to contact Mr Jazeer Nijamudeen
on 0433 827 993 or jnijamudeen@muslimlegalnetwork.com. We are happy to discuss the
matter further and assist where possible.





16
Australian Bureau of Statistics, 2011 Census reveals Hinduism as the fastest growing religion in Australia, (21
June 2012) < http://www.abs.gov.au/websitedbs/censushome.nsf/home/CO-61 >.
Page 10
2 May 2014

Supporting Organisations & Community Leaders Signatories
Submission not to enact the proposed reforms to the RDA

# Name Position Contact Community Organisation
1 Mr Nizam Jazeer
Nijamudeen
President
(VIC)
Muslim Legal Network
2 Mr Aziz Khan President (WA) Muslim Legal Network
3 Mr Bilal Rauf President
(NSW)
Muslim Legal Network
4 Mr Samier Dandan

President Lebanese Muslim Association
5

Mr Kaled El
Hassan
President Muslim Students Association of
Australia
6

Mr Khaled
Sukkarieh
Chairperson Islamic Council of New South
Wales
7

Mr Ghaith Krayem Secretary Islamic Council of Victoria
8

Mr Muhammed
Suhail
President Edith Cowan University Islamic
Society
9

Mr Mohamed Omer Chairman of
Shura Council
Islamic Centre of Western
Australia Inc.
10

Mr Talha Nasim Trustee Perth City Musallah Association
Inc.
11

Mr Muhammad
Khubair
Secretary Minhaj Ul Quran Vic Inc.

12

Mr Abdul Rafiq President

Islamic Education and Welfare
Association of Dandenong Inc.
13

Dr Ibrahim Salim
(Abu Muhammad)
Grand Mufti of
Australia
Australian National Imams
Council
14

Sh Abdel Azeim
Rahman
President Australian National Imams
Council
15

Sh Gul Saeed
Shah
President Board of Imams Victoria
16

Sh Isse Abdo
Musse
Vice President Board of Imams Victoria
17

Sh Mohamadu
Saleem
Treasurer/PRO Australian National Imams
Council
18

Sh Abdus Salam
Zoud
General
Manager
Ahlus Sunnah Wal Jamaah
(ASWJ) association of Australia
19 Sh Yusuf Peer President Council of Imams Queensland
20 Sh Mahmoud
Omran
President Council Of Imams, Western
Australia
21

Sh Riad El Refai Secretary Council of Imams, South
Australia
22 Sh Abdul Kadir Imam Islamic Society of Toowoomba
Page 11
2 May 2014

23 Sh Shabbir Ahmad Executive
Member
Australian National Imams
Council
24 Mr Mohamed
Masood
President Werribee Islamic Centre
25

Sh M.N. Hassan President Al Mustapha Institute, Brisbane
26

Sh Sufyan Khalifa President Daawah Association, Western
Australia
27

Sh Feizal Ghafoor Member Jamiyathul Ulema, Western
Australia
28

Mr Rifai Abdul
Raheem
President Institute of Muslim Academic
Network Australia Inc
29

Sh Moustapha
Sarakibi
Imam Hume Islamic Youth Centre
30

Mr Siddiq Buckley President Australian Islamic Mission Inc
31

Mr Abdikarim
Hussein
President Islamic Information and Support
Centre of Australia Inc
32

Mr Abu Naeem

Director Ahlus Sunnah Wal Jamaah
Association of Australia
33

Mr Muhammad
Siddiqui
President Meezaan Group Inc
34

Mr Faizal Izzedeen President United Sri Lankan Muslim
Association of Australia
35

Mr Sheikh
Mohamadu Saleem
Public
Relations
Officer
Board of Imams Victoria
36

Mr Omar Chehade Director The Australian Islamic House in
Liverpool Area Inc.

37

Mr Omar Lahham Acting
President
Federation of Australian Muslim
Students & Youth Victoria
38

Hz Abdelhay
Abdelhay
Principal Ibn Masood Institute
39

Mr Manzoor A
Mian
Secretary Ararat Islamic Welfare
Association Inc
40

Mr Aiyaaz Ali President iDawah Australia Inc
41 Mr Vahid Goga President Albanian Australian Islamic
Society
42 Mr Malek El Haouli President Newport Islamic society
43 Capt. Razzak A.
Syed
President Australia Bangladesh Islamic
Council
44 Mr Aziz Khan Chairperson Western Australia Muslim
Lawyers Association

Page 12
2 May 2014

45

Mr Ruzni Ramzeen

President Islamic Society of Deakin
University
46 Mr ABM Russel National
Manager -
Australia
Mercy Mission
47 Mr Abdul
Kamareddine
Executive
Committee
Member
Australian Federation of Islamic
Councils