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A QUESTION OF BOUNDARIES
There is a fine line separating freedom
of speech from hate speech. One of the questions I try to answer in
my book, The Jihad Seminar is whether religious hate speech legislation
sets boundaries of tolerance and respect or do these laws exacerbate
conflict?
The
Islamic Council of Victoria v Catch the Fire Inc. dispute was a
landmark case under a new religious hate speech act in the State of
Victoria that was controversial and in 2002 about to be tested for
the first time—the Racial and Religious Tolerance Act, 2001
(RRTA) brought in by the Bracks Labor Government.
The
three Muslim complainants who were all converts alleged that
Pentecostal pastors Daniel Scot and Daniel Nalliah publicly incited
hatred, contempt, ridicule and fear of Muslims by stating, in
seminars, newsletters and websites that Australian Muslims were
secret jihadists, waiting to take over
Australia
and forcibly convert non-Muslims. Their statements were aggressive
and ridiculing.
The case was supposed to
be over in three days. Five years later I was still shaking my head:
How naïve of me to ever think that entering the domain of faith
politics, divine revelations, freedom of speech and hate speech v
the law, might be a cut and dried exercise. Clearly interpreting a
law handed down by parliament was just as painful as interpreting
sacred laws handed down by prophets.
Very early on the case began to veer out of control. A
lack of good will and a desire by both sides to have their day in
court led to the dispute finally going forward to the Victorian
Administrative Courts Tribunal (VCAT). This, however, was just the
first legal stopover along the way, and although the tribunal judge
found in favour of the Muslims in Dec. 2004 i.e. decided that the
two pastors were guilty of vilifying Muslims under the Act-- two
years later, the Victorian Court of Appeal set aside this decision
on technical grounds and allowed CTF’s appeal… it meant starting
all over again or was there another way out? This legal deadlock led
to common sense prevailing and the two sides conciliated in a
confidential out of court settlement and issued a joint pacifying
media in 2007
But it was a prolonged and
messy case altogether. Over a period of five years Freedom of Speech v
Freedom from vilification was under the spotlight. The Muslims were
accused by the tabloid media and fundamentalist Christians--of being
the enemies of free speech and not surprisingly—given the times we
live in—lost out, in the court of public opinion. Overseas,
tragedies like the Bali and
London
blasts and later the Danish Cartoons also hardened people’s
mindsets.
Many observers said ‘Oh this is just a
Melbourne
story!’ but I disagreed. It came at a time when Islamophobia was
increasing in
Australia
and extremist jihadists overseas were dominating the headlines.
I saw real people on both sides of the barricades who
expressed their pain and their innocence; religious vilification was
only one strand of a more complex story with hidden agendas. I came
to realise that inciting people to feel hatred, contempt and fear
towards Australian Muslims and to ridicule Islam in the public
domain was dangerous, divisive and in this case quite deliberate. It
was not being done in the privacy of one’s home, or in a movie or
TV, or at a conference or in a book or newspaper article as a matter
of public interest – there was a different agenda at play.
The Muslim side repeatedly stated that they were not the
enemies of free speech, that they understood that this act was not a
de facto blasphemy act and that people could, if they so wished,
aggressively critique Islam and say any manner of mean spirited and
vile things about Islam and the prophet of Islam without
contravening the laws. They repeatedly said that they understood
what this law was about—they might not like an aggressive critique
of Islam but they understood that it in no way contravened
Australian law.
In their eyes the two pastors had contravened the law not
by what they said about Islam but because of what they said about
Australian Muslims. They believed that they had been personally
vilified:
Certain themes and predilections locked inside the
Melbourne
dispute embodied, on one hand, the West’s apprehension about Islam
and global terrorism and, on the other hand, how Muslim minorities
might react to this response. Courtroom witnesses articulated
people’s fears, pain and anxiety. Looking on from the wings,
shaking their heads, stood the human rights activists (‘those
damned secularists’) who not for the first time found themselves
shoulder to shoulder with a range of holy men and women all united
in their support of this new secular law which outlawed hate speech
in the religious sphere.
The
case became a microcosm of the post September 11 syndrome.
In Western societies, people
are embroiled in passionate discussions about free speech and
censorship, racial and religious vilification, tolerance, blasphemy
and the future of multicultural and multi-faith societies: issues
that were debated throughout Australia and resolved in the nineteen
eighties and nineties—but then came September 11 2001.
Australia
,
it seems, is not so out of touch with the rest of the world as we
once were once conditioned to think. In the 21st century,
variations of the Islamic Council v Catch the Fire Ministries
dispute are being played out in certain Western societies, wherever
Muslims form a sizable minority. Australian Muslims are part of a
larger Islamic Diaspora working hard to renegotiate their
identities, at a time in history, when many of their fellow citizens
eye them as ‘the enemy within’.
The same happens in
Australia
and since the Benbrika terrorist trials in
Melbourne
, this will intensify. One third of the world’s Muslims, who
number 1.2 billion, now live as minority members of secular
countries.
The Muslim side knew that they might be painted as the
enemies of free speech but felt that boundaries of civilised
behaviour had been crossed and that they must make a stand.
“Enough is enough!” they said.
Many
Melbourne Muslims did not agree with their decision to go ahead with
the case; Muslim lawyers warned them that it would become a
protracted struggle; but with the support of their interfaith
allies: Anglicans, Catholics, Progressive Jews, Quakers, United
Church, Unitarians and the pro bono services of two qc lawyers they
went ahead.
Sitting in the hearing room listening to the proceedings I
observed that the Muslims were doing their best to keep religion out
of court—it was the two respondents who were determined to bring
in the Qur'an and Hadith and take verses out of context and choose
quite unrepresentative verses. The ICV did not introduce religious
themes but were often forced into explanations for the judge was
allowing the other side considerable latitude, but it was
vilification once more but this time through the back door.
Here was a group of practising Muslims taking the modern
secular route; standing up and saying: ‘as Australian citizens we
have the right to the protection of the law; this religious act is
religiously neutral; we do not want to discuss religion, but we
believe that we have been defamed; we want an apology and an
assurance that the pastors will desist from saying that we are going
to take over Australia and force conversions and rape and kill; that
we are liars and stupid liars at that who are hell bent on
domination.
- offering
bribes of up to $10,000 for conversions
- fighting
as the only sure way to heaven
- Lying
for the sake of Islam as religiously PERMISSIBLE
- Lying
if they said they wanted peace
- Denying
any obligation to OBSERVING tolerance;
- Wife
beating
- Out-breeding
the rest of the community in order to become the majority
- Spying
on and infiltrating parliament and other places including churches
and the immigration department
- Waiting
to take over the country and forcibly converting non-Muslims when
this had been accomplished.
There was also a claim
described as a ‘silent jihad 6 M Approach’, used to illustrate
how Muslims aimed to convert non- Muslims: Money for
converting, or through Marriage, M for Madrassahs, for
Mosques and for Mysticism as in popular Sufism
As proof that the Act is not intended to gag lawful
free speech, there are a number of exemptions listed including: the
work of artists, performers, writers, journalists, academics and
scientists as long as that particular work is engaged in reasonably
and in good faith, meaning they must be conducted for genuine
academic, artistic, religious, or scientific purposes which may be
considered in the public interest and a fair or accurate report on a
matter of public interest. Catch the Fire’s defence would argue,
that the pastors were exempt.
I preferred another litmus test on what you could say
with impunity. Could the Danish cartoons have been published in
Melbourne
in 2005 without the editors being penalised? I believed so.
The representative body for Muslim societies in the
state of Victoria, the ICV was itself initially reluctant to
proceed. The ICV could never have proceeded without the pro bono
services of two of
Victoria
’s leading human rights lawyers, both of whom were silks. On the
other hand CTF were dependant on their supporters’ donations to
fund their own legal representation.
The ICV v CTF case was already making news in the
USA
and the
UK. Thousands of emails were at one stage sent to the Department of
Foreign Affairs which in the end asked the judge to publicly
announce that nobody could be gaoled under this section of the act
as claimed by CTF supporters. Groups and organisations very happy to
have this new Act tested supported both Muslims and Pentecostals.
The
Anti-legislation Coalition:
On the Pentecostal side
groups like CTF and the Salt Shakers welcomed the opportunity to
expose the legislation. The Salt Shakers and certain fundamentalist
Christian factions had fought a long and unsuccessful battle against
the proposed bill before it was enacted during its consultation
phase and were not prepared to give up—their aim was to have the
law either repealed or the religious clauses removed.
Many of their followers were genuinely frightened. ‘Could
they wear a cross, were staff at the EOC where complaints were
made-- Christians? I believe that their leaders deliberately
misrepresented the Act to their brethren for many believed they
would not be able to critique Islam, a ridiculous claim. It proved
impossible for the State Government to allay these fears, in spite
of a preamble to the Act which clearly describing people’s
democratic rights and responsibilities.
Helen Szoke, Chief Executive of Equal Opportunity
Commission
Victoria
added her voice in an effort to stem the hype dominating the ICV v
CTF case. ‘We are
all free to hold any opinions or beliefs, even hateful or
destructive ones, we are even free to express those views. But if we
act on our thoughts by promoting hatred we risk vilifying others.
off-hand remarks or racist jokes are unlikely to be considered
vilifying…calling someone a “whingeing Pom”, a “happy
clapper” or a “towel head”, or telling a religious joke may be
offensive but would not on its own be considered vilifying.’
A
Partnership: Community Education and the Law:
There is a cost to society of
using hate speech laws but it needs to be weighed against the cost
to society of remaining silent. Staying silent in the face of
hate speech and bullying is morally weak: ignoring racism doesn’t
make it disappear, turning sexual harassment into an ongoing
office-party joke does nothing for women’s dignity and equal
rights; and religious vilification can’t be left in the hands of
church, mosque and synagogue leaders however well meaning. Legally
fixed ground rules make education easier and while laws may not
transform attitudes they certainly modify behaviour and allow
education and changes, in how we look at one another, to develop in
the interim.
The cost to society while we wait for attitudinal
change to occur is too great and that is why we need
anti-discrimination laws. Without
a law making hate speech illegal generations remain ‘on the
outside looking in’ because they are different. Attitudinal
change is fostered when anti-discrimination laws and community
education work hand in hand. Break the silence, reduce the
social distance by showing the human face of ‘the Other’ and
they become less ‘the Other’ allowing you to catch glimpses of
yourself: they mow their lawns, worry about the mortgage, fall in
and out of love, tell their children bedtime stories and may even
barrack for the same football team as you! Only someone who has
never suffered from racial or religious vilification, sexism,
homophobia or rejection because of a disability can say, ‘wait for
attitudes to change’.
Hate speech targets vulnerable
people and the law is there to protect people until society changes
for the better. Attitudes do not change out of pity; nor by telling
people to be nice to one another—the Australian Vietnamese
community dug itself out of unpopularity by dint of sheer hard work
and investment in education and commerce—they earned respect and
were assisted by the Labor government’s multicultural access and
equity policies. In the late seventies and early eighties they were
the unpopular ‘Boat people’. Slowly, over the years their
contributions have been recognised. As a community, their
spokespeople have often publicly and symbolically expressed
‘gratitude’ to
Australia
for the opportunity to rebuild their lives. By contrast some
Australians believe that Muslim immigrants fail to enact this
‘ritual’ because of supposedly divided loyalties that the recent
debate over dual citizenship has re awoken.
In the history of
Australia
, many minorities have resisted attempts to exclude them from
mainstream institutions. Irish Catholics were discriminated
against for almost a century; as were the Chinese; anti-Semitism
continues in more sophisticated fashion although synagogues are
still targeted, with graffiti removed quickly and quietly to avoid
giving anti-Semites the gratification they seek. Noongar and Koori
Australians have been the most gallant and enduring resistance
fighters our society has ever known—their fight continues.
Breaking
the Cycle of Abuse:
Anti-discrimination
legislation by itself might not change attitudes but certainly
modifies behaviour and sets the scene for gradual changes in
thinking for new generations. One has only to look at racial
vilification and sexual harassment laws introduced in the last
century to understand this. Considerable apprehension greeted these
new laws when they were first introduced thirty years ago—yet
norms in thinking were gradually challenged, certain aberrant
behaviour outlawed (or driven underground) and the vulnerable
protected—history is repeating itself with hate speech laws.
Hate speech needs to be challenged; conciliation
doesn’t always work and then it becomes important to break the
cycle of hate speech—this is what the RRTA does—it breaks
the cycle of abuse like other forms of anti-discrimination
legislation.
The cost to society of using hates speech laws like the
RRTA is not as great as remaining silent. Yes, there will be
apprehension, resistance and ignorance of how the law works just as
there was years ago when laws against domestic violence, sexual
harassment, homophobia and racism were first introduced. Discussion,
dialogue community education and the chance to see a few cases ‘in
the flesh’ eventually calmed fears. The Islamic Council v Catch
the Fire case brought existing tensions to the surface—it didn’t
invent them—it revealed them and clarifying conflict is
important in any multicultural, multifaith society.
Education from an early age reduces many problems, but
suspicion and fear of ‘the other’ will never be removed
completely and this is further justification for this type of
legislation. Attitudinal change needs fifty years to cover at
least two generations before we see results. What do you do in the
meantime if you are Muslim, Jew, Buddhist, Hindu, Sikh or a small
emerging group of radical conservatives from the right wing of the
Pentecostal movement?
Islamophobia and Community Attitudes:
Critics
of the legislation accept racial vilification as uncivilised and
morally wrong yet reject the idea that Islamophobia is a specific
form of racism against Muslims who, at present, are only protected
by anti-discrimination legislation in
Queensland
,
Victoria
and
Tasmania. New South Wale's legislation protects those it classifies as
ethno-religious groups—but it does not define those groups. Belonging
to a visibly different religion is the new racism.
Australians love their sport and idolise their
sportsmen. Sporting codes are sometimes ahead of community attitudes
in
Australia. Not so long ago all around
Australia
, racial sledging was accepted as a part of football. Then came the
heroic gesture of Nicky Winmar, an indigenous footballer who stood
up to the mob of racist bullies in 1993 by lifting his jumper and
pointing with pride to his brown skin; the persistence and lobbying
of other aboriginal sports stars marked an end to racial
‘sledging’. Gradually the crowds were won over—today in
Australia
it is no longer ‘cool’
to use racist taunts. In mid 2005 the Australian Football League
(AFL) heard its first complaint of religious vilification; a player
within the hearing of an umpire called a devout Christian opposing
player a ‘Bible bashing c…’ the matter was conciliated within
the AFL, just like most of the complaints that are lodged with the
EOCV.
A
Question of Boundaries:
Perhaps
in the end it comes down to a question of boundaries. There is a
difference between aggressive criticism and hate speech, a line that
should not be crossed in public discourse. The RRTA is not merely a
symbolic piece of legislation—it is meant to be used. Electing not
to use your rights leaves you dependant on the humanitarian support
of others; your vulnerability increases and often leads to feelings
of alienation and victimisation. One day you may look up to find
that your rights have been further eroded. An invitation to dialogue
enhances self-development whereas hate speech enhances the feeling
of ‘Otherness’ and
helps create mindsets that close in on themselves.
Muslims are usually the people who get spoken about;
rarely are they the ones allowed to speak and when they we do it’s
usually in response to what is being said about them—we don’t
own our own history, our narratives are untold. This is a reminder
of the struggle of indigenous people in
Australia
to reclaim their narratives, speaking without intermediaries in
their own voices, for the first time in possession of their history.
For perhaps the first time this case showed Muslims entering the
debate at an institutional level, something others before them had
traditionally shied away from doing.
The idea that Western culture and values need defending
in
Australia
, with Christianity under attack and Muslims out-breeding everyone
else is hard to sustain as a rational argument in spite of the
periodic airing it receives from government leaders and back
benchers. It is dangerous when this becomes part of public
discourse.
Unravelling the Plot:
Unravelling the plot behind the Islamic Council versus
the Catch the Fire confrontation revealed the religious impulse
at its best—and at its worst. Human nature, faith, dogma;
differing ways of looking at the world and the politicising of
religion all played a role in shaping this story.
The conflict flushed out a longstanding antagonism on
the part of some conservative Evangelical Christians against Islam,
especially those groups influenced by the American Christian Right
movement. Nevertheless it’s important to pin the tail on the
donkey accurately. In the course of this case there were
Pentecostal, Evangelical and Baptist pastors who acknowledged that
at least one of the pastors went too far in his criticism of Islam.
During the hearing it was revealed that he had once distributed a
pamphlet listing mosques—alongside brothels, bottle shops and
temples—as ‘Satan’s Strongholds’.
A
statement prepared by Rev. Dr Brian Edgar from the Australian
Evangelical Alliance (EA) in December 2004 stood out as an example
of how Christians and Muslims could enter into a dialogue with one
another; it was a document of diplomacy and restraint. The EA is a
national fellowship of individuals, a wide range of Christian
denominations and three hundred para-church organisations; it is
affiliated with the powerful Evangelical Alliance of the
UK. The press release raised questions about the value, the
workability and the over-use of the Act and called for its repeal
or at least significant amendments, ‘in order to safeguard a
proper and open discussion of religious faiths.’ While defending
the right of people to be involved in vigorous debate the EA
called ‘on people [and here the subtext is important] not to
misrepresent positions, distort facts, be one-sided, ignore
contextual differences, or over-generalize.’
Borderlands
and Alliances:
The
conflict was always trapped in the dangerous borderland between
the realm of freedom of speech and our need for the law.
Interacting with one another in a multi-faith society may not be
easy for some Christians and Muslims. Critics of the legislation
who have always argued that an aggressive critique of Islam and
Muslims was not permissible under the Act now surely have their
answer that this is not the case.
The
pathological dread of Islam that is in danger of developing in
Australia in the 21st century can only be shifted, in my opinion,
by alliances, by the law and through community education.
Australian Muslims have friends in the burgeoning interfaith
movement in
Australia
but there is also a need to return to other more secular alliances
with those who value multiculturalism rather than eschewing it as
the scourge of the 21st century. Certain differences of
opinion need to put aside to return to the alliances of the anti
racist movement of the previous century. Hate speech needs
combating by religious people and irreligious sceptics who should
put aside their ideological differences in the interests of social
justice and human rights.
The
Religious Impulse:
In
the end mediation was the sensible way out of this debacle. It was
also the opportunity for both sides to publicly accept a draw
while still allowing them the face saving device of returning home
and telling their supporters that they had not lost.
Many
onlookers continue to ask what lessons have been learnt from this
case. To them I would say that in the
State of
Victoria
a line was drawn in the sand making the demarcation clear between
freedom of speech and freedom of vilification. For public
discourse in general vilification is not to be tolerated: You
may feel contempt for Islam or Muslims under the law of the
land, but if you publicly and intentionally incite contempt, hate,
fear and ridicule towards people because of their religious
belief, well in
Victoria
you could be stepping over a boundary.
Muslim observers learnt that the act was not a de facto
blasphemy act, that it was religiously neutral and that it was a
strategy for the protection of all Australians. Christian right
wing conservatives were told that they hold no cultural monopoly
and that the culture wars prevalent in the
USA
should not take root in Australian society.
My
own position on this issue, if it’s not already clear can best
be summed up by two quotes, the first from the UK Arab Assoc. of
Human Rights who said in 1989,
“No blasphemy does as much
damage to Islam and to Muslims as the call for the murder of a
writer”. And then Umberto Ecco, who in 1994 wrote in the
Index of Censorship:
'In
order to be tolerant, one must first set the boundaries of the
intolerable.
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