Nine years ago, Colin Rubenstein identified weaknesses in the federal laws against inciting violence based on racial and religious hatred.
Had his warning been heeded, it might have equipped federal authorities with some of what they need to crack down on the worst aspects of anti-semitism.
Instead, the Australian Federal Police face the almost impossible task of enforcing laws against inciting racial and religious violence that do not come within a bull’s roar of being fit for purpose.
As executive director of the Australia/Israel and Jewish Affairs Council, Rubenstein had every reason to push for an effective system to ensure those calling for violence against Jews are held to account.
Nine years ago he provided a submission to the Australian Law Reform Commission that is just as relevant today as it was back in 2015.
“In a time of heightened incitement to violence by extremist groups, hate preachers must be prosecuted for reckless/negligent behaviour without their prosecution being unduly restricted,” he told the commission on September 18 of that year.
He was particularly worried by two aspects of the Commonwealth Criminal Code: the high burden of proof and a ludicrous defence that allows hate preachers to escape liability for inciting racial and religious violence if they acted in “good faith”.
Consider the logical inconsistency: how can anyone have acted in good faith if they have called for racial or religious violence?
The effect of the “good faith” defence, if not the intention, has been to hand impunity to those who engage in the most extreme and dangerous aspects of anti-semitism.
The Criminal Code actually lists circumstances in which those who intentionally incite racial and religious violence can seek to be excused on “good faith” grounds.
Right now, when the nation is scrambling for a solution to the spread of anti-semitism, reasonable people will find it hard to understand how such a law could have been approved by parliament.
After seven months of chaos on the streets and universities, the case for reforming the code is urgent.
Rubenstein was particularly concerned about section 80.2A and 80.2B that are supposed to impose jail terms on those who intentionally urge violence against groups and individuals on the basis of race, religion, nationality, ethnic origin or political opinion.
And while this might sound robust, the scales of justice have been rigged.
In order to secure a conviction, prosecutors need to prove not one but two separate mental elements – that the accused person intentionally urged another to use violence, and that the accused person intended violence to occur.
Another provision – section 80.2C – must also be consiodered a dead letter.
This provision imposes a penalty of seven years in prison on anyone who “praises the doing of a terrorist act” if there is “a substantial risk” this could lead others to commit an act of terror.
In the seven months since Hamas attacked Israel, anyone with access to Youtube would be able to track down individuals in this country who have praised that conduct.
Yet nobody is facing charges under section 80.2C. And the threat environment does appear to be substantial.
Last month the head of ASIO, Mike Burgess, told the National Press Cub: “Terrorism threat level is possible, which means there is a 50 per cent chance that in the next 12 months or even right now, there’s someone who’s planning an act of terrorism.”
When asked about the current state of the law, Rubenstein said his organisation stood by the submission it sent to the Law Reform Commission in 2015.
“Sydney imams inciting violence against Jews and those chanting blood-curdling calls for violence at the Sydney Opera House on October 9, should face the prospect of criminal prosecutions,” he said.
“The urging of or incitement to violence should always be a redline demarcating criminality.
“Unfortunately, the offences under section 80.2A in the Commonwealth Criminal Code – of urging violence against groups, and 80.2B – of urging violence against members of groups, have proved to be ineffective.
“There is no actual red line, just confusion so AIJAC calls for revision of these provisions.
“AIJAC recommends that intentionally urging another person, or a group, to use force or violence should be a sufficient test of criminal fault,” Rubenstein said.
It’s difficult to disagree. The “good faith” defence in section 80.3 must qualify as the most bizarre federal law ever approved by parliament.
It gives a complete defence to those who have been shown to have incited racial or religious violence, who intended to do so and who intended for violence to take place.
That means it gives effect to the idea that there are certain circumstances in which federal parliament considers it acceptable to incite race-based and religious-based violence.
When courts need to decide what conduct comes within the “good faith” defence, the code gives judges scope to consider “any relevant matter”, “any genuine purpose in the public interest” as well as one particular factor that looks like a free pass for hate preachers with a grievance about Gaza.
It means those who have incited racial or religious violence can avoid conviction if they have pointed out “in good faith any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters”.
In other words, federal law says it’s OK to incite violence against Jews and other racial groups as long as your reasons are sound.
This alone might not explain the rise of anti-semitism. But it must have helped.
