Mr Simon Corbell

Mr Simon Corbell

Attorney-General

GPO Box 1020

Canberra ACT 2601

CC: Ms Joy Burch MLA

Minister for Multicultural Affairs

GPO Box 1020

Canberra ACT 2601

Dr Helen Szoke

Commonwealth Race Discrimination Commissioner

Dear Mr Corbell

Advice Regarding ‘Anti-Islamic cartoons’

I refer to a direction for advice dated 9 January 2012 from Ms Burch, acting Attorney-General, concerning the dissemination of cartoons in Canberra and Queanbeyan during December 2011 depicting a Muslim man committing acts of violence. This advice below considers whether publication of the cartoons breaches the racial vilification provisions of the Discrimination Act 1991 ACT (the Act) or other anti-discrimination legislation. In my view, the Discrimination Act may not have been breached because it does not cover religious vilification, and people of the Muslim faith may not be protected by the strictly worded provisions for racial vilification. As requested, I have also considered potential future law reform.

Background

It is my understanding that the cartoons in question were disseminated via letterbox to residential houses in Kingston, Braddon, Lyneham and Civic areas of Canberra. These cartoons are titled, ‘Is Allah like you?’, ‘Allah Has No Son’, ‘The Last Rites’ and ‘The Death Cookie’. The distributor of the pamphlets is not identified and remains unknown. However, they were sourced from the website Chick Publications at http://www.chick.com.Chick Publications were founded by Jack T. Chick and are based in Ontaria, California. It describes itself as ‘publishing cartoon Gospel tracts and equipping Christians for evangelism for 50 years.’ The actual location of the web servers for its website is not known, but material is titled ‘printed in the USA’.

‘Is Allah like you?’

The ‘Is Allah like you?’ pamphlet depicts a family apparently living in the Middle East. The cartoon begins with a father, Ahmed, being upset by his children spilling water on his Qur’an, and he responds by beating his son and wife. The son seeks advice from ‘Uncle Yousef’ who confirms that the Qur’an justifies the beating of family members. The father is sent material anonymously about the Bible, and converts to Christianity, rendering him a peaceful man. This cartoon essentially portrays the Muslim man of Middle Eastern appearance as violent and oppressive, until his conversion to Christianity.

‘Allah had no son’

This pamphlet depicts a Christian man speaking to his son outside a Mosque. He describes Allah as a ‘moon God’ which results in one of the Muslim worshippers debating the history of Christianity and Islam with him. The Christian man encourages him to convert to Christianity, suggesting that ‘Allah is not God’ and that ‘Muhammad was no prophet’. The cartoon concludes with the Muslim worshipper committing to preach the truth about Islam as revealed to him by the Christian. It also refers negatively to the spreading of the Islam faith: ‘Britain was our first target and the Islamic religion is bringing Britain to her knees’; and ‘Islam is the second largest and fastest growing religion in America! And you people should FEAR US! We expect the Muslim flag to fly over the White House in the near future. It will be the end of Christianity in America’.

‘The Death Cookie’

This cartoon depicts two men debating how to peacefully control groups of people. The historic environment and their clothing suggest it is set several centuries ago, but the country is unclear. One man with a demonic appearance suggests that men can be controlled if they think that ‘you have the power to put him into Hell’. He describes a strategy of convincing people of ‘holy work’, ‘magical’ helpers, a ‘papa’ who offers spiritual guidance, and followers worshipping a ‘cookie’ (the Eucharist eaten in ‘transubstantiation’). The second man becomes a ‘Holy Papa’, a veiled reference to the Pope. The cartoon therefore undermines the fundamental beliefs of the Catholic faith. Many people follow his teaching, but change their minds upon reading the Bible. Finally the cartoon refers to the ‘unspeakable torture and deaths’ that ‘stalked the Catholic world’ during the Inquisition.

‘The Last Rites’

This cartoon begins with a man, John, verbally abusing his wife, then dying in a car accident. He is refused entry to Heaven because he has followed the ‘false teachings’ of the Catholic Church too closely, and is therefore banished to the ‘lake of fire’ in Hell .

Racial vilification under the ACT Discrimination Act 1991

Section 66 of the ACT Discrimination Act 1991 defines vilification and reads in part:

1)  ‘It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of people on the ground of any of the following characteristics of the person or members of the group:

a)  Race;’

Subsection 66(2) of the Act does not make unlawful –

a)  ‘A fair report of an act mentioned in subsection (1); or

b)  A communication of the distribution or dissemination of any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or

c)  A public act, done reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter.’

Section 65 of the Act reads:

‘Public act includes –

a)  Any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material.’

The Act defines race as including:

a)  Colour, decent, ethnic and national origin and nationality; and

b)  Any 2 or more distinct races that are collectively referred to or known as a race.

These provisions implement Article 20(2) of the International Covenant on Civil and Political Rights which provides that ‘any advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility, or violence shall be prohibited by law’.

Racial hatred under the Federal Racial Discrimination Act 1975

Subsection 18(C) of the Commonwealth Racial Discrimination Act 1975 (the RDA) makes unlawful ‘acts, otherwise than in private, if:

a)  The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

b)  The act is done because of the race, colour or national or ethnic origin of the other person or group of people....’

Section 5 of the RDA reads in part:

Without prejudice to its effect apart from this section, this Act also has, by force of this section, the effect it would have if:

(f) there were inserted in section18, after the word ‘person’, the words ‘or by reason that a person is or has been an immigrant’.

I note 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) 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 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.’[1]

I will consider UK jurisprudence on this issue later. The RD Act contains a number of exceptions in similar terms to those in s.66(2) of the ACT Discrimination Act set out above.

Application of the ACT Discrimination Act

It appears that the cartoons ‘Is Allah like you?’ and ‘Allah had no son’ are the most likely of the circulated cartoons to satisfy the tests for racial vilification under ACT and Federal law. The guidance material (the Explanatory Memorandum of 1994) accompanying the relevant Federal provisions mention that vilification of Muslim people is protected. The second cartoon is also published with the Christian character being Afro-American instead of white under the title ‘Who is Allah?’ It is alleged that distribution of this tract was the subject of sedition charges in Singapore, where the website appears to be blocked.[2] While the other cartoons may be highly offensive to someone of Catholic faith, they appear to be focussed on religion rather than race. However, it is likely that if religious vilification protection existed in the ACT or Federal law, all four cartoons would be unlawful.

(a)  Was the dissemination of the cartoons a public act?

Case law suggests that the dissemination of material via letterbox is a form of communication to the public, and therefore constitutes a public act under s.66(1) of the ACT Discrimination Act. It is also an act that is done ‘otherwise than in private’ under s.18 of the Federal Racial Discrimination Act. In Jones v Scully the Federal Court explicitly found the distribution of leaflets in letterboxes constituted unlawful vilification.[3]

(b)  Was the act done on the ground of the race of a person or members of a group?

The race of relevant class of people affected by the cartoon needs to be identified. The ACT Discrimination Act defines race in the Dictionary as including ‘colour, descent, ethnic and national origin, and nationality’. Under s.4A(2) of the Discrimination Act race does not have to be the dominant or substantial reason for an act, merely one of the reasons why it was done. The cartoons, ‘Is Allah like you’ and ‘Allah had no son’ explicitly depict the Islamic faith, given the repeated references to the Qur’an. As already noted, vilification on the ground of religion is not included in the Discrimination Act. However, there is a question as to whether vilification against people of the Muslim faith might constitute racial vilification. For example the cartoon ‘Is Allah like you?’ depicts stereotypical characters of Middle-eastern appearance living in a desert environment:

·  The son is named ‘Hasan’, meaning ‘handsome’ in Arabic;[4]

·  His friend’s name is ‘Ali’, meaning sublime and elevated, and is derived from Ali, the son-in-law of the prophet Mohammed;[5]

·  The father’s name ‘Ahmed’ is a ‘regular Muslim name’ and ‘represents Arabic ahmad’;[6]

·  The uncle’s name is ‘Yousef’ is derived from Arabic for the name ‘Joseph’;[7] and

·  The wife’s name ‘Safiya’ is an African name meaning ‘pure’ and ‘innocent’;[8]

I note that Arabic is spoken across a wide area of the world, including the Middle East and North Africa. The names and location of the cartoons do not identify one particular racial group, but imply Middle Eastern background. However, they clearly and directly support an interpretation that the cartoon depicts Muslim people negatively.

There is no Australian case which has determined whether Muslim people are covered by the widely defined term ‘race’, including ‘ethnic origin’. I have adopted a broad interpretation of ‘race’ consistent with the right to equality under s.8 of the ACT Human Rights Act 2004, as s.30 requires that ACT laws be interpreted consistently with human rights.[9] Further, the term ‘ethnic origin’ has been interpreted in some jurisdictions to include Jewish and Sikh people. In the 1979 New Zealand case of King-Ansell v Police the court held that Jewish people formed a group with common ethnic origins:

…a group is identifiable in terms of ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.[10]

In 2002 the Full Federal Court favourably cited King-Ansell in Miller v Wertheim,[11] but ultimately found the alleged racial hatred on the basis of Jewish identity did not take place on the facts. Also in 2002 the NSW Administrative Decisions Tribunal Appeal Panel in Khan v Commissioner, Department of Corrective Services considered whether the term ‘ethno-religious’ in the NSW Anti-Discrimination Act’s definition of race included or covered Muslims.[12] The Tribunal found the evidence was not sufficient to satisfy the test of a racial group:

It is not even clear that Muslims, to use the words of the Attorney-General "share a common racial, national or ethnic origin". While Muslims are all adherents to Islam, they do not share common racial, national or ethnic origins. There are Muslims in every continent and of many different racial and ethnic backgrounds. It is common knowledge for example that there are South Asian, South-East Asian, African, Middle-eastern and European communities of Muslims. Many African-Americans, most famously Muhammed Ali, are Muslims. No doubt within those broader groupings there are further ethnic sub-groups which nonetheless adhere to Islam. Hence the ambiguity in referring to Muslims as a single "ethno-religious" group.[13]

Instead, the Tribunal suggested ethno-religious groups would be required to be more specifically defined, encompassing ‘a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices’. The Tribunal suggested for example Javanese Christians, Bosnian Muslims and Northern Irish Catholics.