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“Combating the Defamation of Religions”

A Report of the Australian
Human Rights and Equal Opportunity Commission

to the

United Nations High Commissioner for Human Rights

4 July 2008

 

© Australian Human Rights and Equal Opportunity Commission, July 2008

For further information, please contact:

Conrad Gershevitch
Race Discrimination Unit
HREOC, 8th Floor 133 Castlereagh St, Sydney NSW 2000
email:conrad.gershevitch@humanrights.gov.au

Contents:

Acknowledgements

Foreword

Preamble

Legal issues

Issues outside the legislative domain to counter the defamation of religions in Australia

Actions taken by the Commonwealth Government

Concluding remarks

Appendices

  1. Bibliography
  2. Profile of Australia’s changing religious communities
  3. List of Abbreviations

Endnotes

Acknowledgements

There was little time available to compile this report; this limited HREOC’s ability to research and consult on all the important issues referred to in the General Assembly resolution. Given this, HREOC relied heavily upon the advice and input from various experts in the field, and organisations. In particular, HREOC would like to acknowledge the assistance of:

Gary Bouma, Professor Emeritus, from Monash University and Chair of the UNESCO Observatory for Inter-religious and Intercultural Relations, Asia Pacific, who permitted the quoting and referencing of unpublished papers.

Professor Andrew Jakubowicz, from the University of Technology in Sydney, for providing access to a yet-unpublished paper on religion and the media in Australia.

Maria Dimopolous (Myriad Consulting) for her advice on gender issues and religious discrimination.

HREOC would also like to acknowledge the assistance of Dr Hass Dellal (Australian Multicultural Foundation), Natalie Mobini from the Baha’i Community, Ian Lacey and Jeremy Jones from the Executive Council of Australian Jewry, Professor Abd Malak, Suresh Rajan (Ethnic Communities Council of Western Australia) and the staff within HREOC and other Commonwealth agencies who found the time, at short notice, to provide input for this report.

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Foreword
by the Race Discrimination Commissioner

On behalf of the Australian Human Rights and Equal Opportunity Commission (HREOC) I thank the United Nations High Commissioner for Human Rights for the opportunity to submit this report on the issue of ‘combating the defamation of religions’.

This report has been prepared by the Australian Human Rights and Equal Opportunity Commission to address the questions raised in General Assembly resolution 62/154 (18 December 2007). It is not a report by the Australian Government, nor does it claim to represent the views of the Australian Government.

As outlined in this report, HREOC notes that Australia decided not to support General Assembly resolution 62/154 which has been somewhat contentious, and there were a number of reasonable objections raised at the time of the vote relating to the wording within the resolution. However, the intent behind the resolution as I understand it (to promote a respect for individual religious belief, counter the upsurge in faith-related conflict, and to promote an international culture of human rights during an age of heightened apprehension about the threat of ostensibly faith-based acts of violence), is one that Australian governments and HREOC would generally and strongly support.

HREOC has felt that a detailed response to the invitation from the OHCHR is warranted. Since the events of 11 September 2001, Australia, like so many other countries, has faced numerous dilemmas. How do we maintain the rights and freedoms of our citizens while defending the Commonwealth at a time of perceived threat? How do we meet obligations under some UN conventions (such as the Refugee Convention), while maintaining the integrity of our borders? How do we have a public discussion about terrorism without creating an atmosphere of alarm in the general community, and without stereotyping or marginalising communities that are living in apprehension? How do we promote our anti-discrimination measures and human rights when these are seen by many in politics, media and the community as of secondary importance and easily subsumed to the need for national security? How do we understand and reasonably respond to the asymmetry of the threat posed by terrorism?

These are only some of the critical questions that must be addressed in this complex and contradictory discussion. As noted in the recent report by the International Council on Human Rights Policy, national human rights institutions (NHRIs) face particular dilemmas when considering these issues1. These dilemmas are not just ethical and legal ones. The mere discussion of the association between terrorism, religion, security and certain population groups living within national boundaries raises potential concerns about the role, independence and community expectations of NHRIs.

HREOC experiences these complexities and contradictions on a daily basis as we negotiate the path between the competing priorities of supporting vulnerable communities, our national legal and governance systems, HREOC’s human rights mandate, ethical concerns, and HREOC’s reporting obligations to government.

HREOC notes that the General Secretary has been asked to report back to the General Assembly on resolution 62/154 during the 63rd session. I hope this report on Australia’s response to faith-based hate and fear, will help inform the United Nations’ future response to this important subject and, should a further resolution on this issue be put to vote at the General Assembly, that some of the concerns raised in this report will be recognised in any new resolutions, thus encouraging a larger proportion of member states’ support.

Tom Calma
Race Discrimination Commissioner and
Aboriginal and Torres Strait Islander Social Justice Commissioner
on behalf of HREOC

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Preamble

1.1 About the Human Rights and Equal Opportunity Commission

Australia’s NHRI, the Human Rights and Equal Opportunity Commission (HREOC, or, the Commission) was established in 1986 by an act of the national parliament. HREOC is an independent statutory authority that reports to parliament through the Attorney-General.

HREOC’s goal is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups. HREOC’s responsibilities include:

HREOC achieves this through:

HREOC has been established in conformity with the Paris Principles. The Commission are world leaders in working co-operatively with other countries to establish and strengthen independent NHRIs in accordance with these Principles. As such, HREOC works closely with other national human rights commissions, particularly through the Asia Pacific Forum of National Human Rights Institutions, to address major human rights issues in the region. HREOC also undertakes bilateral international activities as part of the Australian government’s development program run by the Australian Agency for International Development (AusAID), including the Human Rights Technical Assistance Program.

HREOC is a collegiate body made up of a President (who is also the Chief Executive Officer) and five Commissioners. The six positions are currently held by four people, these being:

John von Doussa, HREOC President

Tom Calma, who is both the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Race Discrimination Commissioner;

Graeme Innes AM, the Human Rights Commissioner and Disability Discrimination Commissioner; and

Elizabeth Broderick, the Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination.

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1.1.1 A note about Australian governance

Australia is a constitutional monarchy, ‘constitutional’ because the powers of the Commonwealth government are defined by the Australian Constitution, and ‘monarchy’ because the head of state is Queen Elizabeth II (represented in Australia by the Governor-General). Australia was formed in 1901 when six independent British colonies agreed to join together to become states within a new nation. Australia’s Constitution created a federal system with the powers divided between a central (Commonwealth, national) government, and individual states as well as two territories.

Under Australia’s Constitution, the Commonwealth government can pass laws (section 51) that relate to the entire country, with state governments retaining the power to make their own laws over matters not controlled by the Commonwealth under section 51; these governments have their own constitutions, legislature, executive and judiciary. State and territory governments are generally responsible for managing services, and so look after such issues as education, hospitals, transport infrastructure and the like. Australia has three tiers of government, the third being local councils which are formed by state governments and are responsible for many community services; they have their own legislature and executive, but no judiciary.

HREOC is an independent statutory body created by the Commonwealth government and this report largely focuses on activites at that level (although it should be noted this report is not submitted on behalf of the Australian government). However, the complexity of Australia’s system of governance should be understood when reading this report and that various actions taken to ‘combat the defamation of religions’ may fall into state jurisdictions that have different laws, and which may have their own projects and programs to do so. In Australia, state/territory and Commonwealth relations are managed through the Council of Australian Governments (COAG). National programs can be porous across various administrative and legislative domains making an understanding of the responsibility, as well as consistency, and the collection and auditing of national activities, difficult.

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1.2 General Assembly resolution 62/154 (18 December 2007)

The Office of the United Nations High Commissioner for Human Rights sent an invitation dated 29 April 2008 to (inter alia) all NHRIs to submit a report to its office by 24 June 2008 (by 4 July in HREOC’s case) on the implementation of the resolution, in particular, the possible correlation between defamation of religions and the upsurge in incitement, intolerance and hatred in many parts of the world.

In summary, the resolution seeks a response on the following issues:

The General Assembly resolution acknowledges a range of previous United Nations resolutions, declarations and reports including the United Nations Millennium Declaration, the Durban Declaration, and the Alliance of Civilizations initiative. Although not referenced in the resolution, the context of this resolution is also a number of other United Nations responses to the escalated risk of global terrorism, including the United Nations Security Council resolution 1373 of 28 September 2001, passed to respond to the real and urgent threat posed by international terrorist networks.

There are inherent challenges, complexities and dichotomies associated with the subject, as described, of countering the defamation of religions. On the one hand promoting freedom, respect, human rights and cross-cultural dialogue, and on the other establishing a framework of control, security and protection. This is reflected in the resolution which itemises a long and disparate list of areas where member states are asked to act.

Resolution 62/154 was approved by a recorded vote of 95 in favour, 52 against and 30 abstentions. The United States, New Zealand, Australia and members of the European Union did not support the resolution in its current form and India abstained from voting. The reasons given for this were, firstly, because the resolution focuses primarily on one religion (Islam) and the prevention of defamation and stereotyping should be extended to all religions and, secondly, because the concept of defamation is not applicable to religions and, therefore, is invalid in human rights discourse which should address the rights and freedoms of individuals. Nevertheless, there was overall agreement that vilification and discrimination on the grounds of religious belief is unacceptable and there was concern about serious instances of religious intolerance and violence which should be addressed through international effort.

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1.3 HREOC’s understanding of the invitation to report on combating the defamation of religions

HREOC understands that resolution 62/154 requests the Secretary-General to submit a report to the 63rd session on implementation of the resolution, including the correlation between attacks against religions and increasing intolerance and hatred in many parts of the world. This report is being submitted to the Office of the High Commissioner for Human Rights (OHCHR) to help inform the Secretary-General’s report. HREOC hopes that this report will assist the General Assembly to consider the issues, generally, more fully and may assist the General Assembly to pass a future resolution that has a greater level of support from member states.

The contentious issue associated with resolution 62/154 was the specific referencing to the experience of Muslims and the inference that Islam has borne the brunt of worldwide defamation of religions. Not only is this recognised internationally, including in United Nations documents2, it is also a concern recognised within Australia.3 This has been extensively debated in numerous government reports, discussed in government committees and reflected in policies and programs, in media opinion pieces, academic and research publications, and the work of civil society institutions. It is also reflected in governments’ legislation to respond to the increased security environment. This is discussed in detail in section 2.5 because of the unavoidable appearance that counter-terrorism legislation is specifically targeted at Muslim Australians. HREOC is of the view that the use of the term ‘defamation of religions’, as demonstrated by the debates at the General Assembly, may not be the best way to describe ongoing discrimination, violence and exclusion on the basis of religious belief or affiliation.

In interpreting this resolution, HREOC takes it to mean that the word ‘defamation’ is used in the widest possible way. HREOC understands defamation to be an act of communication that causes an individual to face a false claim (stated or implied) made about them and claimed to be factual; to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or otherwise suffer from a damaged reputation. Defamation may also apply to a business, product, group, government or nation. This defamation may involve stereotyping, sensationalising, vilifying, dehumanising and otherwise attacking the cultural, spiritual, ethical and related elements of religions diversity and their associated values.

While recognising the complexity of the issues, and the lack of clarity in the resolution, HREOC interprets thatreporting to the OHCHR should address:

  1. legal issues relating to religious vilification under Australian laws since clause 12 “...urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion..” and also because the concept of ‘defamation’ is generally seen as a legal one
  2. more general issues associated with the disparaging of religions and their associated cultural practices and belief systems
  3. wider policy and program response to address cultural and religious diversity, and to foster community harmony within Australia that is compatible with the spirit of the resolution.

Not only is HREOC concerned about the use of the word ‘defamation’, the verb ‘combating’ is also one that may not be helpful given the nature of the issues being addressed. HREOC agrees that religious and associated discrimination must be responded to with authority and clarity. Nevertheless, the use of the term ‘combat’ is perhaps inappropriate under the circumstances. Combat means ‘to fight or contend against... a fight between two men, armies etc’, a combatant is ‘a person or group that fights’ and combative is ‘ready or inclined to fight’ (Australian Macquarie Dictionary, 1985). The language of the resolution, therefore, may not be sending the best message about positive engagement with the challenges of faith-based discrimination, conflict and violence, but may, at a subliminal level, tend to compound the idea that religion, in particular Islam, is generally amplifying the problems of global violence.

Despite the ambiguity of the language in the resolution, HREOC understands and supports the intent behind their use, and quotes the phrase ‘combating the defamation of religions’ throughout this document to avoid confusion, while registering its concerns.

As well as these concerns, HREOC also notes that a number of issues that could have been included in the resolution were omitted and this has the further excluded groups which face the experience of defamation on the grounds of religion. HREOC, in recognition of this omission, has made reference to the issues of gender and the rights of indigenous peoples within this document.

In this report the approach HREOC has taken is to try and strike a balance between the opportunities and costs, the good and the bad, and the issues that are clear and those that are obscure. The report attempts to describe what are; an enmeshed set of security challenges, human rights dilemmas, complex legislative responses and intractable ethical issues.

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1.4 HREOC’s assessment of the relationship between defamation of religions and the risks to national security and social cohesion4

There is an increasing body of literature that links the defamation of religions to a growth in the risk of retaliatory violence and an accompanying damage to social cohesion within nation states. As noted in resolution 62/154, this has been identified in the High-Level Group report of the Alliance of Civilizations, it has also been affirmed in other reports5. There is also growing recognition that an effective response to international terrorism should not just rely upon ‘hard security’, but must also take human rights-based approaches to addressing conflict and disequilibria in wealth, freedom and opportunity, as well as recognising the need for dignity and respect (defamation is about disrespect, not poverty).6

Australia, like other countries that have assessed their national interests and security as at-risk, has responded in many ways in an attempt to address the economic, political, cultural and other complexities associated with emerging patterns of faith-based violence, inter-religious and inter-cultural conflict, and the exclusion of certain communities by a mainstream apprehension of difference and the escalating speed of social change.

Government response to these challenges is ongoing and this report is submitted to the OHCHR at a time when a policy reorientation is occurring due to the change of government at the Commonwealth level late in 2007.

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1.4.1 Social cohesion, social inclusion and social connectedness

Within Australia there is a public policy trend to replace the term ‘social cohesion’ (favoured by the previous conservative Commonwealth government) with that of ‘social inclusion’ (a term preferred by the new, centralist government)7. Sometimes used inter-changeably, there is, nevertheless, a distinction between them and the lack of definitional clarity needs to be resolved.

The word cohesion refers to bonding, about bringing together, about adhesion. It is a more centripetal idea, of the disparate being attracted towards a centre, or a ‘mainstream’. Inclusivity, on the other hand, is a term that is about inviting or helping others to join in, to participate, or to be part of something on equal terms.

The distinctions between the concepts are significant and, in terms of social capital theory, it could be said that cohesion is about bonding social capital (or building strength within largely homogenous communities when ‘core values’ are already largely shared and understood), whereas inclusion is about bridging social capital (or bringing diverse communities together to build a shared understanding and a civic discourse that is mutually respectful). Indeed, it has been questioned8 whether social cohesion is really a virtue at all. Social cohesion actually infers, and promotes, homogeneity and (hence) implies that pluralism may be harmful to social relations.

Not only is it unrealistic (no society can be completely homogenous)9, it denies the dynamism and strength of societies that function within an environment of creative complexity, and, that many members of society may actively choose diversity over mono-culturalism. Nevertheless, others have argued this reads too much into the phrase and it really describes a model of reciprocal recognition of rights and responsibilities within a liberal, plural, democracy.

Social inclusion, on the other hand, is a more elastic term, partly because it is often vaguely defined. It could be described as a ‘value’, which is essentially an intangible quality, as well as a policy principle upon which tangible programs may be built. In Australia, the new Commonwealth government has strongly endorsed social inclusion as a process to resolve systemic disadvantages and barriers to human development. The use of the term is associated with programs of the previous Blair government in the UK which saw social inclusion as a means to address immediate material issues that also have a social justice dimension, such as homelessness, workforce participation, education, and costs of living.

Hitherto, and in what is still an evolving social policy environment in Australia, social inclusion is yet to be considered in a broader way, particularly in how it encompasses culture. In genuinely socially inclusive communities, members of these communities’ religious, cultural, ethnic and racial beliefs and backgrounds will be, as an absolute minimum, respected. More properly, they should be seen as an asset that enriches civic life.

Another concept that may be useful as a way of describing the goal of building respectful civil societies, and members of those societies with a strong sense of wellbeing, is that of ‘social connectedness’. This is a term that HREOC uses to describe some of the project goals of its Community Partnership for Human Rights Program (for details, see section 4.3.2).

Social connectedness is normally understood as a psychological term that describes the quality and quantity of connections that people have with others within their social circle of family, friends and colleagues. These can be in real life, or on-line. The more socially connected a person is in their life, the greater their sense of self-control and self-determination. While still predominantly used in the health promotion literature, it is being increasingly used in wider social policy10. Alternative social policy models may be helpful to understand how a human rights-based approach to counter-radicalisation may be developed and implemented. The concept of social connectedness, as a way of understanding the dynamics within tightly knit and vulnerable communities, is worthy of close examination.

On 13 February 2008 the first act of the new national Government, led by Prime Minister Kevin Rudd MP, was to deliver a National Apology to Indigenous Australians for the highly damaging policies implemented over many decades by previous governments, in particular, the forced removal of children from their families (often described as ‘Stolen Generations’), allegedly to aid their ‘assimilation’ into the wider Australian society.

This reconciliation initiative could, ideally, be extended to other communities that have experienced discrimination, degrading treatment, or social exclusion over recent years. Such recognition of past wrongs could be a valuable way of ‘integrating’ such groups into the wider community through a reconciliatory process modelled, in a more modest way, on the Stolen Generations Apology. This could also be a method of ‘de-stigmatising’ certain communities, and sending a message that racist behaviour and stereotyping is not tolerated.

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1.4.2 Multiculturalism as a key aspect of social inclusion

In 2004, the United Nations Development Program (UNDP) recognised, for the first time, that culture was a critical element to promote human development11 in its annual report that examined cultural liberty. In particular, it noted that most nations are culturally diverse and what it describes as ‘multicultural democracies’, while imperfect, are the closest that humans have come to developing an optimal form of governance.

Along with Canada, Australia developed and implemented a national multicultural policy well before many other countries. Just prior to its loss at the November 2007 election, the previous government declared that multicultural policy in Australia had ended – a position reversed by the incoming government. In the months leading to this election HREOC was concerned, that at a time when the rest of the world had recognised the importance of multiculturalism as a means to maintain social harmony, promote human rights, and to progress human development (as demonstrated in the UNDP report), Australian policy was heading in the wrong direction.

The Commission published a paper12 defending multiculturalism to add to public discourse about the importance of both the policy and the principles it supports. In summary, HREOC’s paper mirrors many of the critical themes outlined in the UNDP report, including that:

HREOC’s position paper also emphasises that multiculturalism is not about establishing a system of special favours for minorities, nor is it about encouraging segregationism. Multicultural policy in Australia has always demanded commitment to the democratic systems and institutions of the country and the respect of the rights of all its members. It is about inclusion, while recognising the cultural liberty and preferences of its citizens; importantly, multiculturalism is also about human rights, in particular, confronting race and related forms of discrimination. Increasingly, it is also about recognising the importance of religion as a dimension of peoples’ cultural lives, personal identity, and as a means of building social capital.

Social inclusion principles and policy, which are now being developed by the new government, would be strengthened if they embraced a multiculturalism that focuses on inter-cultural respect, a rejection of racism in its widest definition, and is underpinned by a new charter of rights for Australian citizens. Structural discrimination can continue to appear at unlikely times and in vehement ways as, for example, was recently illustrated at Melbourne’s RMIT University, which refused to provide the appropriate prayer facilities that were promoted in its literature to overseas fee-paying students.14 These kinds of scenarios not only impact negatively on the institutions where they occur, they can have wider economic and social impacts upon the community and the nation.

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2. LEGAL ISSUES

Australia’s laws provide limited protection from religious discrimination and vilification. The uneven protection that is available exists mostly under laws relating to racial discrimination and laws in some states that cover religious discrimination and vilification.

Issues concerning defamation of religion have also arisen Australia in the context of cyber-racism and counter-terrorism debates.

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2.1 Australia’s federal protections from racial and religious discrimination and vilification

2.1.1 The Constitution

The Australian Constitution contains no protection against discrimination, except on the narrow grounds of state residency. However, clauses under the Constitution have led Australia to be described as a secular state, most specifically because of section 116, which states that the Commonwealth government cannot pass legislation:

“...establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust...”

This has been interpreted to mean that the Australian government cannot pass laws that:

Moreover, the Australian government cannot, whether by law or otherwise, require that a prospective holder of public office be affiliated with a (or any) particular religious views.

Australia’s federal parliament has passed laws to prohibit racial discrimination and vilification on the basis of its power under the Constitution with respect to ‘external affairs’. This power has been held to extend to passing laws to ensure that Australia complies with international human rights obligations.

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2.1.2 The Racial Discrimination Act

Australia ratified the 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on 30 September 1975. This has been implemented through the Racial Discrimination Act 1975 (Cth) (RDA).

The central prohibition against racial discrimination is contained in s 9(1) of the RDA which provides:

“...any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

As well as this general prohibition, the RDA makes racial discrimination unlawful in a range of specific areas such as employment, housing and the provision of goods and services.

The RDA prohibits both direct and indirect discrimination. An example of direct discrimination (also called ‘disparate treatment’ discrimination) is refusing to serve a person of a particular race at a hotel.

Indirect discrimination (also called ‘disparate impact’ discrimination) refers to the imposition of policies or rules that unreasonably disadvantage people of a certain race, colour, descent or national or ethnic origin, even if it is applied equally and appears to provide equality of treatment. An example of this kind of indirect discrimination is a company that may require night stackers to have high levels of English language competency to be employed, even though this is not required for the discharge of their duties as employees. There are, however, situations where this kind of discrimination may be reasonable if it has a clearly demonstrable purpose, for example, if that same business had a position taking telephone orders, then it might not be discriminatory to require good English language skills.

The RDA applies to businesses of all sizes, schools, local governments, state, territory and Commonwealth government agencies and departments, and individuals. It covers a wide range of circumstances such as employment, housing and accommodation, education at all levels, the provision of goods and services, access to facilities meant for use by the public, advertising, and trade union membership. Nevertheless, it is not against the law to make racial distinctions in private life (for example, when you choose friends, or who you allow into your home).

The RDA also permits racial distinctions to be made if they are considered to be ‘special measures’. The special measures exemption to the RDA is intended to permit positive discrimination for racial groups who have been disadvantaged and who suffer from great social and economic disadvantage or exclusion compared to other groups in society and may require assistance to better enjoy their human rights to the same level that other Australians enjoy.

Racial vilification
In addition to prohibiting racial discrimination, the RDA also prohibits public behaviour that is racially offensive or abusive (see s 18C). Examples include: writing racist graffiti in a public place, making racist speeches at a public event, placing racist posters in a public place, making racially abusive comments, jokes, songs or gestures in public, offensive comments or drawings in newspapers or publicly available websites. In a number of cases it has been confirmed that ‘cyber racism’ may be covered by the prohibition in s 18C.15

The RDA, nevertheless, recognises that there is a need to balance rights and values, between the right to communicate freely (‘freedom of speech’) and the right to live free from racial vilification. To attempt to manage these potentially conflicted human rights, the racial vilification provisions only apply to an act done ‘otherwise than in private’. Further, s 18D of the RDA provides an exemption for acts done ‘reasonably and in good faith’:

Religious discrimination under the RDA
Religious discrimination is not, per se, made unlawful by the RDA. However the Act does prohibit discrimination on the grounds of ‘ethnic origin’. The term ‘ethnic origin’ has been interpreted broadly in a number of jurisdictions to include certain religious groups such as Jewish and Sikh people.

Complaints by Jewish people
A New Zealand court in King-Ansell v Police16 held that Jewish people in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ).

In Miller v Wertheim,17 the full Federal Court of Australia stated that it could be “readily accepted that Jewish people in Australia can comprise a group of people with an ‘ethnic origin’ ”18 for the purposes of the RDA, and cited with approval the King-Ansell case. In Jones v Toben19 Branson J held that she was “satisfied that Jews in Australia are a group of people with a common ‘ethnic origin’ within the meaning of s 18C of the RDA.”20

Complaints by Sikhs
In Mandla v Dowell Lee21the House of Lords held that Sikhs are a group defined by a reference to ethnic origins for the purpose of the Race Relations Act 1976 (UK). The Court held that for a group to constitute an ethnic group for the purposes of the legislation in question, it had to regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.

Complaints by Muslims
There have been no cases decided on the question of whether Muslim people constitute a group with a common ‘ethnic origin’ under the RDA. It is noted, however, that the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (which became the Racial Hatred Act 1995 (Cth) and introduced Part IIA of the RDA which prohibits offensive behaviour based on racial hatred) suggests that Muslims are included in the expressions ‘race’ and/or ‘ethnic origin’. It states:

“The term ‘ethnic origin’ has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of ‘ethnic origin’ as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

The term ‘race’ would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims”.22

This issue has, however, been considered by the Administrative Appeals Tribunal in NSW which upheld a race discrimination complaint brought by a man who was a Lebanese Muslim. In New South Wales (NSW), however, unlike under the RDA, the anti-discrimination legislation defines ‘race’ to include ethno-religious origin.23

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2.1.3 Protections under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’)

Under the HREOC Act, discrimination or vilification of people on the basis of religion may be dealt with in two ways.

Acts or practices of the Commonwealth that are inconsistent with the right to freedom of religion

The Commission is given the function to inquire into, and attempt to conciliate allegations that, an act or practice of the Commonwealth (including things done ‘on behalf of the Commonwealth’) is inconsistent with any human right.

‘Human rights’ mean the rights and freedoms recognised in the international instruments which are declared or scheduled to the HREOC Act. Two such instruments have particular relevance to the freedom of religion:

The freedom to hold and manifest religions and other beliefs is guaranteed by article 18 of the ICCPR. The ICCPR also provides that:

The Religion Declaration is a comprehensive statement of the right to freedom of religion and belief and elaborates on the ICCPR guarantees. This freedom is not to be inhibited by discrimination on the ground of religion or other beliefs (article 2). Some of the elements of the freedom to manifest one’s religion orbelief are listed in article 6 and include the freedom to assemble for worship, freedom to use the articles and materials related to rites or customs, freedom to write and disseminate publications, and freedom to teach the religion.

Discrimination in employment or occupation based on religionUnder the HREOC Act, the Commission is also given the function to investigate and attempt to conciliate complaints of discrimination in employment or occupation on a number of specified grounds including religion. This part of the HREOC Act has its basis in the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO Convention 111). ILO Convention 111 defines discrimination to mean any distinction, exclusion or preference made on the basis of, amongst others, religion, that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

The definition of discrimination in s 3 of the HREOC Act relevant to this particular function is based on the definition of discrimination in article 1 of ILO 111. However, the definition of discrimination in s 3 of the HREOC Act also recognises that a distinction, exclusion or preference will not amount to discrimination when it is:

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2.1.4 Other laws

The Workplace Relations Act 1996 (Cth) prohibits discrimination in the area of federally regulated workplace agreements and terminations, the Public Service Act 1999 (Cth) and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) also impose some obligations on Commonwealth authorities and public service agencies to combat race discrimination.

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2.1.5 Possible reforms

HREOC has recommended that a federal law be introduced making unlawful discrimination on the ground of religion or belief, and, vilification on the ground of religion or belief.24 The issue of combating the defamation of religion by the Commonwealth government, from a legal perspective, might be most succinctly answered if the RDA was amended to make religious vilification unlawful. Many advocates have argued that such an amendment is required for the RDA25.

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2.2 Existing legislation under State/Territory laws

Some states and territories have legislation that expressly prohibits religious discrimination and vilification.

In other states and territories religious discrimination and vilification is not, per se, made unlawful. However, the racial discrimination and racial vilification laws in these other states and territories may provide some protection against religious discrimination or vilification.

Express prohibition of religious discrimination
Discrimination on the basis of religion is unlawful in the Australian Capital Territory (the ACT), Northern Territory, Queensland, Western Australia, Tasmania and Victoria.26

In the ACT and Western Australia, the term used is 'religious conviction'.

In Queensland, the Northern Territory and Victoria, the terms used are 'religious belief or activity'.

In Tasmania the terms used are ‘religious belief or affiliation’.

Furthermore, in Queensland27 and Victoria,28 these terms include the absence of religious belief as well as any refusal to participate in religious activity.

Express prohibition of religious vilification
Queensland, Victoria and Tasmania are the only states in Australia that expressly prohibit religious vilification.

Vilification based on 'religion' is against the law in Queensland; vilification based on 'religious belief or activity' is against the law in Victoria and vilification based on ‘religious belief or affiliation’ is against the law in Tasmania.29

The key elements of the provisions in these states are as follows:

The legislation in these states contains exceptions to what would otherwise be unlawful conduct similar to the exceptions provided for racial vilification complaints under the RDA.30

The Victorian law also prohibits ‘serious’ religious vilification which requires the conduct referred to above to be done ‘knowingly’.31 The Tasmanian and Queensland legislation do not have an equivalent offence.

Race Discrimination in other states and territoriesIn NSW and South Australia the anti-discrimination laws do not expressly prohibit religious discrimination.

In NSW, however, the Anti-Discrimination Act 1977 (NSW) prohibits ‘race’ discrimination and defines ‘race’ to include ‘ethnic origin’ or ‘ethno-religious origin’.32 33 ‘Ethnic origin’ has been interpreted broadly in the federal context as including some religious groups. As indicated above, a man who was discriminated against on the basis of his Muslim faith and middle-eastern appearance succeeded in his race discrimination complaint under the NSW legislation as such discrimination was considered by the Tribunal to be ethno-religiously based.34 In an earlier decision, however, the Tribunal held that in order to establish a complaint under the ethno-religious ground, a person cannot rely solely on their religion, such as Islam.35

The South Australian law definition of ‘race’ does not expressly include ethnic origin.36 The South Australian law defines ‘race’ to mean ‘nationality, country of origin, colour or ancestry’. As such in South Australia a person who is subject to religious discrimination is probably left without any remedy.

Racial vilification in other states and territories
The Northern Territory does not have any provisions that prohibit vilification whether it be racial or religious vilification.

The ACT, Western Australian, South Australian, and NSW laws prohibit ‘racial vilification’ which covers vilification against groups on the basis of ‘ethnic origin’.37 The NSW racial vilification provisions also cover vilification against an ‘ethno-religious’ group.38 ‘Ethnic origin’ and ‘ethno-religious’ origin may be interpreted to include certain religions and as such vilification against certain religious groups may be covered by the racial vilification provisions in these states and the ACT.

The elements of racial vilification under NSW, ACT and South Australian laws are the same as the elements of religious vilification in Tasmania, Queensland and Victoria except the prohibition is against vilification on the ground of ‘race’ rather than religion. These states and territory also have similar exceptions to racial vilification claims to those available under the RDA.39

NSW, the ACT and South Australia also have laws that make certain types of racial vilification an offence.

The NSW and South Australian Acts make racial vilification that involves either of the following an offence:

The NSW and South Australian laws do not expressly require the act to be done with intent, however, there is generally a presumption that intent (or mens rea) is required in the case of statutory offences.41

The ACT offence contains essentially the same elements as the offences in NSW and South Australia except it expressly requires the act to be done with intent or recklessness.42

The NSW, South Australia and ACT provisions creating these offences do not have the exceptions that exist in the case of civil racial vilification claims.

The Western Australian racial vilification provisions are more extensive than the racial vilification provisions in the other states and territories. The provisions that deal with racial vilification in Western Australia are in Chapter XI of the Criminal Code (WA). This Chapter contains provisions that create the following criminal offences:

In the case of the offences of conduct or possession of material for dissemination likely to create, promote or increase animosity towards, or harassment of, a racial group or person who is a member of a racial group there are similar exceptions available to defend such offences as those available to defend a claim of racial vilification under the RDA.43

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2.3 Case study: Islamic Council of Victoria v Catch the Fires Ministries Inc (Final)44

Probably the most significant legal interpretation of religious vilification in Australia, and one which also aroused considerable media interest as well as intense debate within religious communities, was the Islamic Council of Victoria v the Catch the Fires Ministries case.

In this case the Islamic Council of Victoria sought to apply s 8 of the Victorian Racial and Religious Tolerance Act 2001, which provides remedies for religious vilification, against the Catch the Fires Ministries (a non-denominational evangelical group) to apologise for its defamation of Muslims. This Victorian Act prohibits conduct “that incites hatred against, serious contempt for, or revulsion or severe ridicule” of others on the grounds of religious belief.

The Islamic Council of Victoria complained that, during an all-day seminar organised by the Catch the Fire Ministries in March 2002, which was promoted as an “insight into Islam”, Pastor Daniel Scot who led the seminar, made a number of statements including:

A newsletter, written by a second respondent in the case, Pastor Danny Nalliah, described Muslims as “the enemy” and asked rhetorical questions inferring that Muslims will eventually rape, torture and kill Christians in Australia. Other material on the Catch the Fires Ministries website further suggested that Islam is an essentially violent religion and implied that Muslims endorse the killing of people based on their religion.

The Victorian Civil and Administrative Tribunal ruled in 2004 that the ordinary, reasonable person would understand from Pastor Scot’s seminar that they were being incited to hatred or serious contempt or ridicule of Muslims and that this, along with the newsletter and article, all constituted activities in breach of s 8 of the Act.

This decision caused an outcry from a wide spectrum of Christian groups, and included their political parties such as the Festival of Light and Christian Democratic Party, which argued that the ruling denied them freedom of speech. On the other hand, the Roman Catholic and Uniting Churches actually sought to intervene in the case to support the Islamic Council of Victoria.

The Catch the Fires Ministries appealed the ruling in the Supreme Court of Court of Victoria. All three judges in the Supreme Court upheld the appeal and set aside the decision of the Tribunal but for varying reasons.45 The only findings common to the reasoning of all three judges in relation to the substantive decision of the Tribunal were their findings that:

  1. s 8 requires consideration to be given to the effect of the impugned conduct on a reasonable member of the class of persons to whom the conduct was directed rather than the effect on a reasonable reader46 (Neave JA, Ashley JA agreeing, held that the standard should be the effect on an ‘ordinary’ member rather than a reasonable one)47
  2. for the purposes of s 8, the motivation of the impugned conduct is irrelevant.48

Nettle JA49 and Ashley JA50 both held that the Tribunal had erred by failing to take into account aspects of the seminar which ameliorated any risk of inciting hatred of Muslims.

The Supreme Court set aside the penalties laid down by the Tribunal and sent it back to be heard again. The Supreme Court also ordered the Islamic Council of Victoria to meet half the appeal costs of the two pastors, and there was also a risk that they would have to meet other costs as well. The parties subsequently resolved the matter through conciliation.

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2.4 Cyber-racism

While racism can manifest itself in many ways, one of the most pernicious and increasingly common, is cyber-racism - the use of a range of on-line methods to promote racism. Some of these methods include:

As elsewhere, in Australia cyber-racists tend to be, but are not exclusively, white supremacists: neo-Nazi revisionists who promote the myth of white race superiority and destiny and the cultural, moral, intellectual and physical inferiority of all other peoples. Australian cyber-racist sites tend to be vectors for shared vilification, conspiracy theories, propaganda and humour. These sites, generally, are helping to reinvent and maintain race and religious hatreds, in particular hatred targeted at both Muslims, Jews and (by race) Asians, ‘blacks’ and Indigenous Australians.

Because web-based racism goes beyond the boundaries of nation states it is difficult to control under Australian laws. It is also a contentious area because of the discourse around what is, or is not, deemed to be ‘public’ and ‘published’. Another important issue concerning cyber-racism relates to whether the host of an internet site can be responsible for, or has a duty of care over, it’s content.

In 2002 the organisation Electronic Frontiers Australia provided a submission to HREOC’s paper on cyber-racism. Broadly, the EFA argued against control. It’s paper states:

“...while open web sites are certainly not ‘private’, they are public in a rather different fashion to radio or television broadcasts, since the web is a ‘pull’ medium... in particular, they are not intrusive: web sites do not appear on computer screens unbidden; one must choose to view a view site, taking affirmative action to do so. (The delivery of offensive material in unsolicited email... would be a different matter)...”

While there has been a focus in recent years on controlling both terrorist networks that use the internet and digital technologies to organise terrorist attacks and motivate recruits, as well as local and internationally networked cyber-paedophiles, there would appear to have been less effort expended in countering cyber-racism.

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2.4.1 Cases concerning cyber-racism

In Australia there have been three notable cases that are relevant to cyber-racism.

In Jones v Toben,51 Jeremy Jones (representing the Executive Council of Australian Jewry) argued that Frederick Toben (a member of the Adelaide Institute) had breached s 18C of the RDA by publishing material on a website that included Holocaust denial materials.

Justice Branson held that placing material on a website which is not password protected is an act to which s 18C of the RDA applies as it is taken not to be done in private.52 Justice Branson further held that the material was offensive and was done because of the applicant’s ethnic origin, namely because he was Jewish.

Justice Branson ordered Toben to remove all reference from the site which denied the Holocaust or were offensive to Jewish people. It could be argued that this case demonstrates Australia’s capacity to manage, through the courts, the defamation of religion although this may have only been possible because Judaism is considered to fall within the phrase ‘ethnic origin’, and hence is classified as a ‘race’ under the RDA. The case also demonstrates that the RDA does apply, in a limited way, to racist material placed on websites. The racial vilification provision may not, however, apply to racist comments, images or language sent via text messages or emails or placed on websites that are password protected as the provision only applies to acts done otherwise than in private and these acts may be held to be done in private.

The second case is Silberberg v The Builders Collective of Australia Inc53 (‘Silberberg’). In Silberberg the applicant, who is Jewish, alleged a breach of the racial hatred provisions of the RDA in respect of two postings on an internet discussion forum. The claim was brought against the individual who posted the relevant postings, as well as against the incorporated association which hosted the forum as part of its website.

Gyles J held that it was reasonably likely that a person of the applicant’s ethnicity would have been offended, insulted, humiliated or intimidated by the messages. Accordingly, his Honour upheld the complaint against the individual respondent and ordered a restraint against him from publishing the same or similar material.54

In relation to the website host, his Honour held that the failure to remove material “known to be offensive” within a reasonable time is an act caught by s 18C(1)(a).55 Ultimately, in that case, the Court did not find the website host had breached s 18C(1) because its act of not removing the material was not connected to the race or ethnic origin of the applicant. The case, however, demonstrates that a website host could potentially be found to have committed racial vilification under the RDA.The third case, although not a response to cyber-racism, is relevant to it. In this case, Dow Jones v Gutnick56, an Australian (Joseph Gutnick) claimed that he had been defamed in an article reproduced by Dow Jones on a website available on the World Wide Web. Dow Jones was an American company and it had uploaded the article onto the website in New York. Mr Gutnick commenced the defamation proceedings in the Victorian Supreme Court. The Victorian Supreme Court of Victoria held that it had jurisdiction to hear the claim because the claim was about damage done to Mr Gutnick’s reputation in Victoria. On appeal, the High Court upheld the decision of the Victorian Supreme Court. The decision was based on the wording of the rules of the Victorian Supreme Court, however, in the course of the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ said the following about the meaning of the term ‘publishing’:

“Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act — in which the publisher makes it available and a third party has it available for his or her comprehension”.57

This case is important because it could be used to support an argument in other contexts, such as racial vilification cases, that even though material is placed on a website overseas, the Australian courts may still have jurisdiction to deal with a claim in relation to such material if it is accessible in Australia.

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2.4.2 Section 474.17 of the Criminal Code 1995 (Cth)

Under s 474.17 of the Commonwealth Criminal Code 1995 (Cth) it is an offence to use a carriage service (which includes the use of the internet or e-mail) in such a way that reasonable persons would regard as being menacing, harassing or offensive.

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2.4.3 Complaints to the Australian Communications and Media Authority

The Australian Communications and Media Authority (ACMA) is the Commonwealth agency responsible for dealing with prohibited materials, including those which would be considered excessively violent, of an inappropriate sexual nature, or which contain offensive racist content. ACMA investigates all complaints, but makes its assessment against classification guidelines. In recent years only a very small handful of complaints have related to racially offensive websites and there is no special team at the agency that monitors extremist sites.

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2.4.4 Complaints to the police re websites that threaten harm or violence

Websites which, apart from being racist, also threaten people of a certain race or background with harm or violence, can be referred in Australia to the police. Most state police agencies have special units that work on computer crime and which may fall under state legislations (for more information, see section 3.1).

It should be noted that the RDA was enacted in 1975 and its most recent amendment was in 1995. This means that the Act has not always kept abreast of new technologies, for example those exploited by cyber-racists. The Jones v Toben case took 6 years to resolve, but still continues with ongoing defiance of the court ruling by the Adelaide Institute.58

The internet also poses a number of challenges regarding public/private dichotomies and this is clearly one area where the law needs to reflect changed circumstances and Commonwealth administering bodies such as HREOC would be assisted by having greater scope to respond to new methods, and varieties of discrimination based on race, culture, ethnicity and religious belief.

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2.5 Australian counter-terrorism legislation and its impacts on potential ‘target’ communities

Since 2001 the Australian government has introduced more than 40 pieces of legislation to respond to terrorism and related activities.59 The key pieces of counter-terrorism and their rationale are:

  1. the Anti Terrorism Act (No.2) 2005 which amends the Criminal Code to extend the definition of terrorist organisation to allow for the listing of organisations that advocate committing acts of terrorism, updates the offence of sedition, and establishes procedures for control orders and preventative detention orders, strengthen offences of financing terrorism and to increase search and seizure powers of ASIO and the AFP60
  2. the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 which empowers ASIO to detain and question a person whom they think may have information relevant to intelligence gathering related to terrorism
  3. the Criminal Code Amendment (Offences Against Australians) Act 2002 which makes certain harmful acts committed against an Australian outside of Australia an offence, thus making extradition easier
  4. the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 which makes it an offence to place explosives in prescribed places with the intention of causing death, or, destruction which would cause major economic loss
  5. the Security Legislation Amendment (Terrorism) Act 2002 modernises treason offences, inserts a series of new terrorism offences and creates offences relating to membership, or other links to, terrorist organisations
  6. the Suppression of Financing of Terrorism Act 2002 targets those who provide or collect funds where the person is reckless as to whether those funds will be used to assist a terrorist act
  7. the Telecommunications Interception Legislation Amendment Act 2002 permits law enforcement agencies to use interception warrants in connection to their terrorism-related investigations, and
  8. the National Security Information (Criminal and Civil Proceedings) Act 2004 protects information from disclosure during a proceeding for a Commonwealth offence where such disclosure could prejudice Australia’s national security.

The previous government argued that this legislation was needed for national security, and that it helped Australia to conform to United Nations resolutions.61 However, because of the context in which these laws have been changed and some of the public debate that has surrounded the issue of national security, there has been a perception in some parts of the Australian community that the purpose of the legislation is to control threatening behaviour by Australian Muslim communities.

The Review of Security and Counter Terrorism Legislation, conducted by the Parliamentary Joint Committee on Intelligence and Security (December 2006) acknowledges the impact that the laws have had, specifically upon the Australian Muslim community. The committee noted that:

“(3.8) It is not the intention of the Parliament that anti-terrorism laws should have a negative impact on the integrity of normal life of Arab and Muslim Australians or any other sector of Australian society. It is central to Australian democratic values that people are free to practice their religious beliefs in community with one another. A healthy and robust civil society promotes both social interaction and political participation. The voluntary involvement in faith based, social and welfare organisations, and the participation of young people in group activities are all aspects of the Australian way of life that promote social inclusion and personal development.”

The committee’s report elsewhere honestly assesses the extent to which Australians of Arabic heritage, and Australian Muslims, feel under greater surveillance and suspicion, and that the counter-terrorism laws have increased distrust of authority and alienation from the wider community within these groups.

Reports from NGOs such as AMCRAN advised that Muslims have felt that the laws are selectively applied to them and the fact that it was only Muslim organisations that were listed as ‘terrorist organisations’ under the Criminal Code, compounded by uncertainties around the definition of terrorism and terrorist organisations, increased this perception and has fuelled confusion and fear. In many instances this has led to self-limiting behaviours, a form of self-censoring that has reduced personal freedom and choices.62

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3. Issues Outside the Legislative Domain to Counter the Defamation of Religions in Australia

3.1 Ethnic and religious profiling by policing and security agencies

There has been, and continues to be, concern about what is often described as ‘ethnic profiling’ as a form of race discrimination. While this concept can be seen as a form of stereotyping – which often occurs in the media – there are difficult issues, particularly in the policing context, where it is often important to describe a wanted, lost, missing or dangerous individual who is urgently sought. Police agencies have argued that it is difficult to put out a description that does not rely upon certain, widely based, assumptions on how people look.

In an attempt to manage the competing concerns of racism with the legitimate need for descriptors, there has been a national standard in Australia for ethnic descriptors since 1997. There are four categories in this national standard: Aboriginal, Asian, Caucasian and other. The standard has been adopted by all state police forces except New South Wales, who distinguish eight groups: Asian, Aboriginal, Black/African, White/European, Indian/Pakistani, Pacific Islander, South American and Middle Eastern/Mediterranean.

NSW Police also have a Middle Eastern Organised Crime Squad and an Asian Crime Squad. HREOC’s Unlocking Doors report (see section 4.3.1) noted that policies that distinguish ethnic groups as being more predisposed to crime increases distrust of law enforcement agencies. Some NSW and Victorian participants in the Unlocking Doors forum felt that they had been racially profiled by police. While acknowledging racism did occur, police representatives argued that these were isolated incidents and did not reflect the practices of the entire police force.

It should also be noted that police are public servants of the state or territory government where they are based, unless they are members of the Australian Federal Police, in which case, they are members of the Australian Public Service. As such, they are bound by the relevant anti-discrimination legislation (under Commonwealth, state or territory laws), as any other Australian citizen, as well as their professional codes of conduct as members of the executive arm of government. As discussed under section 4.1.2, Australia has a Charter of Public Service in a Cultural Diverse Society, this also sets clear parameters for services and conduct by police officers.

Policing agencies are also closely monitored to ensure proper conduct by sworn officers. Information about these professional standards are available through the relevant websites of police departments and well-publicised information about complaints processes are available to the public, so that this avenue is available if a person feels they have been abused, treated unfairly or discriminated against by a police officer, or by police department staff, or their concerns have not been taken seriously, or not properly documented.

Police departments do treat the diversity of Australia’s population seriously and, as noted above in relation to crime units, there are teams of staff dedicated to work with various communities. For instance, most commands have Multicultural Liaison Officer staff (known as Community Liaison Officers in some states) whose responsibility it is to build and maintain close relationships between the police and the communities they serve. Agencies also have policies that address the issue of discrimination by their staff and standards that guide recruitment from ethnic communities. Most also conduct research into community perceptions and attitudes towards policing, crime and safety (some can be found at the APMAB site – see reference below).

It is worth noting that Australia also has its own independent statutory authority, responsible for monitoring the conduct of its six security agency. The office of the Inspector General of Intelligence and Security (see: www.igis.gov.au) is an important branch of government that also helps to ensure that Australian security agencies are accountable and that they meet national standards of conduct and adhere to Australian laws.

Australian police previously supported an organisation called the Australasian Police Multicultural Advisory Bureau (APMAB) which provided expert advice on issues pertaining to religious and cultural diversity. Among other work, they produced a specific publication for police officers to build their cross-cultural competence when working with members of the community from different religious backgrounds.

Some police departments have gone even further to address the issue of religious diversity, for example, in Victoria there is now a specific multi-faith advisory committee. Unfortunately, APMAB was discontinued in 2007, (although its helpful site is still active at: http://apmab.gov.au/) and a new secretariat for Australasian police commissioners has been set up: the Australian New Zealand Police Advisory Agency (see: http://anzpaa.org/). Under this new organisation issues relating to policy, and responses to cultural and religious pluralism, will be addressed once it is fully established.

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3.2 Influence of the media in Australia

The mass media in Australia broadly reflects the widely held view in the community that Australia has developed as a secular society with, what is often called ‘Judaeo-Christian’ values. However, tensions between a broadly secular view of the world, and Christianity-influenced values and behaviours, often finds expression in the media. Most religious conflict tends to be reported in the media as a consequence of the cultural practices of certain ethno-religious groups, rather than a direct result of the specific beliefs associated with religious teachings, although many of the arguments used within the media may do so from a specific religio-cultural perspective that reflects Australian ‘norms’.63

In Australia, the media’s relation with Islam is, this century, almost certainly the most controversial dimension of the media and how it responds to cultural and religious diversity. The popular media have been the most criticised for its portrayal of Muslims, its encouragement of hysteria about Islamic fundamentalism, and its willingness to reinforce stereotypes and prejudices about Australian Muslim communities.

Australian research has shown systematic stereotyping, the promotion of negative images and perspectives, and a strong tendency to link any reporting or discussing of Islam with terrorism64. The main incidents that attracted media attention were, firstly, the series of events in 2001 when the Norwegian boat Tampa rescued asylum seekers from a sinking vessel off the Western Australian coast. This occurred just prior to the September 11 terrorist attacks and were followed by the Bali bombings of 2002 and 2005, the Jakarta Australian embassy bombing of 2004, the London bombings of 2005 and the attempted terrorist attacks in 2007, the arrests of the ‘home grown’ terrorists in England and Australia, and the continuing horrific internecine conflict in Iraq.

Numerous commentators have examined the successful way in which the government of the day were able to use the Tampa, and then subsequent incidents, to reinforce through the media a potential connection between Muslim asylum seekers and the risk of terrorism being introduced into Australia.65

This was repeated in coming years and embedded a relationship between the communication agents of government and certain members of the media which compounded perceptions in the wider community that Australian Muslims were a threat to public safety, Islam is a religion of violence and that national security management should be higher priority than individual rights66. The concept of ‘dog whistling’ has also been widely discussed by media academics who have raised concerns about these issues, in particular, how certain religious communities and ethnic groups have been labelled and discriminated against.67

While terrorism has clearly been a matter of continuing concern for the Australian community, and the media has an important role to inform the public about this threat, there have been innumerable claims that careless or mischievous reporting that associates Islam and the Muslim community in Australia with violence and terrorism has had a major impact upon Muslims with no association with terrorism, and has effected community relations between Australian Muslims and their fellow citizens.68

Local and state media have played a role in publicising one of the more divisive issues that involve Muslim communities. With the rapid growth and increasing prosperity of Muslim communities in Australia, as well as the communities’ diversity and geographic spread, there have been many occasions where communities have sought to build new religious schools or mosques. Planning decisions on these applications are the responsibility of local governments in Australia, and these attempts have often triggered local protest. These protests have not been limited to the usual concerns relating to zoning and development, such as changes in traffic flow and increased noise, but have often demonstrated religious bigotry, cultural ignorance and racial discrimination.

Local newspapers have often reported these issues; their approach has ranged from the balanced to the inflammatory. The most recent controversy relating to this issue was the decision in May 2008 to deny an application to build a large Islamic school in the far-outer, south western Sydney region of Camden. The local council rejected the application on zoning grounds, however, this has been viewed critically given the enormous community pressure to reject the request. The event raised national media coverage, and locals complained that they didn’t want the school built because, for amongst other reasons, they “didn’t speak Islam”.

The print media publishes all types of material that range from the (ostensibly) balanced and neutral news reports, to far more personal opinion columnists, as well as a range of reader comments in ‘Letters to the Editor’. The most relevant material to this report is probably that written by columnists, where for the most part the views represented are often suspicious of diversity and multiculturalism.

There has often been debate about the intent, content, and effects of reporting from news rooms. Some analysts have argued there persists a systematic bias in news reporting so that a review of the print media over time reveals a deeply embedded set of views that reinforce Anglo-Christian (or at least Euro-Christian) world views. If this is true, such biases would essentially reflect the broad nature of Australian society, even if it is not desirable and may have negative long-term consequences for community harmony.69

The news media, generally, does face a reporting ‘vicious circle’. Fear of social conflict, terrorism, inter-cultural and religious violence – as covered in the media - fuels fears in the wider community which, in turn, generates more media material for analysis or reporting. However, in the long-run, heightened conflict is most certainly not in the media’s interest, as it is not in the interest of the wider community.

The media, itself, does look at some of these issues through its own institutions, as do civil society organisations that attempt to combat some of the more discriminatory and unprofessional conduct by the media. Some of these are:

Reporting Diversity
This project builds on an earlier initiative called Journalism in Multicultural Australia, a project funded under Living in Harmony (see section 4.1.2) and involving a partnership between the Murdoch, Griffith, South Australia, Canberra and Western Sydney universities, Media Monitors, the SBS network and Journalism Education Association (see below). The goals of this project are to:

Information about this alliance, its work, and the available resources, can be sourced at: http://reportingdiversity.murdoch.edu.au/rdpaims.html

Media Watch
Media Watch is a program broadcast on Australia’s national, free-to-air television network, ABC1. It is an independent forum of media analysis and comment (for example, often the ABC is an object of criticism). The main intention of the program is to expose unprofessional or inaccurate media coverage and to alert the general public to such failings in the media. Many of the issues discussed in Media Watch relate to matters covered in this section of the report including defamatory or stereotyping reporting about various ethnic, racial or religious communities. Information about this program can be found at: http://abc.net.au/mediawatch/more.htm

The Walkley Foundation
This organisation was established in 1956 to recognise excellence in media reporting and journalism. In particular, it aims to award professional and ethical journalism, particularly in the areas of print, television, radio, photography and on-line media through, amongst other things, a major annual awards ceremony.

Journalism Education Association (JEA)
JEA is a collection of people from within Australia and the South Pacific who are either involved in media education, training, or who support the organisation’s objective of raising standards in the teaching of journalism and communications, as well as improving links between mass media organisations and professional media associations. Like the Walkley Foundation, it conducts an awards program to promote accuracy, ethics and professionalism in the industry. See: http://www.jea.org/.

As well as the role of Australia’s media industries, the influence of overseas media, in a globalised world, cannot be neglected. This media may be picked up via satellite, pay television, or on free-to-air networks such as Australia’s Special Broadcasting Service (SBS). Some of this, including media produced in Australia and broadcasted, printed (or reprinted) in languages other than English, can be discriminatory and inflammatory, particularly introducing political, military and cultural conflict overseas as a local concern.70

Like many countries, Australia experienced a period of national introversion driven, since 2001, by the fear of terrorism. Security and exclusion have been a common and shared community concern as people have felt under threat. However, this would now appear to be abating with the gradual shift in news reporting away from international to national concerns and the passage of time has seen (as is evident from recent national research, for example by Unisys71) that fear of terrorism has gradually been replaced by economic fears, such as the fear of rising interest rates and the escalating cost of petrol, which are now getting far greater media coverage. Indeed, there is probably a correlation between media reporting about terrorism and the level of ‘defamation of religions’ and ethno-religious discrimination within Australia.

This is also reflected in recent research released by Monash University and the Scanlon Foundation that maps social cohesion within Australia and demonstrates that most Australian’s feel socially and economically included, satisfied and comfortable; although significant pockets of resentment, exclusion and fear (including fear of ‘the other’) remain72.

The media is a diverse industry and, while this report notes the role of news rooms, a small group of newspaper columnists and commercial broadcasters, Australian print media is full of what can be described as lifestyle stories – indeed, this comprises the bulk of the media. These lifestyle stories continue to reflect Australia and Australian culture, society and consumer preference as one increasingly integrated into a globalised world with a fascination with international travel, cuisines of the world, foreign film, arts, crafts and goods reflecting cultures and values very distinct from those of ‘mainstream’ Australia.

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3.2.1 Case study: the Cronulla Riots

In Australia the most analysed event has been the December 2005 riots at Cronulla, a beachside suburb in southern Sydney. Some 5,000 people gathered to ‘protect their beach’ from the perceived threat of young Muslim men or people of Lebanese ancestry (not necessarily making any distinction between the two) arriving from western Sydney to use the beach. Cronulla is the only seaside suburb with a rail link to the much hotter western suburbs where many Australian Muslims and Australians of Arabic or middle-eastern ancestry live. Not only was there an attempt to protect ‘territory’, the leaders of the crowds alleged that the ‘outsiders’ harass local women and attack local lifesavers. Following this riot, there were ‘revenge attacks’ by members of those communities targeted earlier.

The subsequent police report noted the role of certain players in the media in helping to instigate and organise the event, in particular detailing the participation of commercial radio talk-back commentators who took a sensationalist approach to events and gave airtime to racist agitators and their inflammatory hate speech.

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3.3 Anti-discrimination and cross-cultural education in schools

All Australian governments strive to provide access to good quality primary and secondary education for all young people in the country – indeed, this is compulsory up to certain ages. There are no deliberately constructed barriers or policies by the State that exclude young people (on any grounds such as gender, ancestry, disability or religion) from gaining a free, government education. This is not to say that the state education system is never without its critics. Most commonly, this relates to arguments about adequacy of funding or accommodation of the special needs of some students. However, from time-to-time debate arises about the quality of values education in schools, and this is discussed further below, or about structural discrimination. A recent example of this were a series of media reports earlier in 2008 (that are not necessarily substantiated) about the ‘white flight’ out of state schools in NSW and the resulting risk of segregation of communities along ethnic or religious lines and the consequences this may have on wider social harmony.73

Australian education services in schools are provided by either the public or the private sector (often schools established by a religious community with strong continuing connections to the faith, although there is a large secular sector such as the Steiner and Montessori schools). State and territory governments, as service providers, are responsible for the public education system and, as the major funders, they are also responsible for the curriculum design for public sector schools.

Both the public and private education systems have a wide range of programs and policies designed to build cross-cultural understanding within school communities, and it is not possible within this report to audit them. The Commonwealth (in comparison with state and territory governments) has a more limited involvement in public education and HREOC (although if does produce its own range of education and schools resources, as described under 4.3.1 and 4.3.2) can only broadly comment in three areas: those limited areas where it is involved in relevant project or strategic influence, the National Safe Schools Framework, and some comments about the role of the private sector and the contributions of civil society organisations.

Commonwealth activities
The new Commonwealth government intends to develop a national school curriculum, and work on some subjects has already commenced. This is supported by HREOC which also believes that such a curriculum should have an increased focus on human rights, civics and citizenship (especially in line with the United Nations World Program for Human Rights Education). Anti-discrimination programs which encourage equity, accessibility, tolerance and diversity should also be promoted further in all educational institutions (schools, universities, private colleges, technical collages). HREOC produces, as noted above, a range of educational resources for schools to support these goals and to promote human rights generally.

The Commonwealth often supports pilot projects in schools, with the agreement of state or territory departments. A current example, relevant to the combating defamation of religions resolution, is the work being trialled by the Department of Education, Employment and Workplace Relations (DEEWR), under the National Action Plan ((NAP) for detailed background information, see section 4.2.2). DEEWR is running an inter-faith pilot in the Lakemba and Macquarie Fields regions of Sydney (in the Western and South Western suburbs). The pilot has three education components: inter-school cooperation, the development of educational resources, and support for teacher professional development. 16 pilot schools have been involved in this initiative, which will be evaluated under the overall NAP and reporting on there success will be available at a later time.

National Safe Schools Framework
This Framework is the result of an agreement between the Commonwealth, state and territories, as well as non-government school authorities through the Ministerial Council on Education, Employment, Training and Youth Affairs. The purpose was to establish an approach in schools, that was national, and which addresses such issues as bullying, harassment, violence, child abuse and neglect. The Framework recognises that school attitudes and values impact upon the behaviour of students in their school communities and therefore encourage all members of school communities to value diversity, contribute positively to the safety and wellbeing of themselves and others, and to act independently, justly, cooperatively and responsibly in school, within their families, and in their wider civic relationships.

The government has also released its Values Education for Australian Schooling. This is a non-curriculum-based set of resources for schools (primary and secondary levels) incorporating a professional learning program to help bett