Rubinstein gets it wrong on how Race Hate laws work…

August 8, 2009 |

Colin Rubinstein was a pleasant enough fellow when I knew him back in my Monash days. He was an academic in the Politics Department ( I think).  A man of very strong views but, in the main,  quite logical.  His latest offerings to the Age, Terrorist television would violate our racial hatred laws,is anything but.  His views are still strongly held.  Maybe a bit too strongly.

A piece of clear thinking it is not. It is worth a close look see:

A Hezbollah-run Arabic station could soon be broadcasting in Australia.

IMAGINE for a moment that Abu Bakr Bashir ordered his Jemaah Islamiah followers to start a satellite television station, perhaps called JI-TV.

But it hasn’t.  Not according to this article or anything else I have seen thus far.  But it is a cleverish way of getting the readers attention. Bashir is a hideous caricature of a human being and one many Australians (including me) believe had more of a role in the Bali and other bombings than he has been charged with.

Such a station might include sermons declaring it a duty for all Muslims to fight and kill Australians and residents of any other country who participated in the fighting in Afghanistan or Iraq.

But it hasn’t.  There is no such station at the moment.

It might have hagiographic portraits of JI “martyrs”, such as the Bali bombers, urging others to emulate them.

But it hasn’t.

It might have children’s programs designed to convince children to aspire to “martyrdom”.

But it doesn’t.  That is because there is no such station at the moment.

And it might routinely include openly antiSemitic rhetoric.

But it hasn’t. And it might not.  That is the problem with mights and mays… they are like wouldas and couldas.  They are all too often used  in hypotheticals.

And imagine that this “JI-TV” was broadcast into Australia, perhaps from Indonesia.

Lets not imagine.  Let’s actually see.

According to Australia’s peak communication regulator, the Australian Communications and Media Authority (ACMA), all of this would apparently be fine under Australian law.

Did they?

This is the implication of a just-released investigation by ACMA of al-Manar, the Arabic satellite television station run by the Lebanon-based but Iranian-funded and controlled terrorist group Hezbollah.

Aaaah. Its an implication.  Not even an inference.

According to ACMA, under the current regulations, there are only two things such a TV station is not allowed to do. It cannot directly recruit people to join a terrorist organisation, which under new standards it promulgated in December 2008 is only judged to occur when the media outlet gives contact details on how to join or obtain terrorist training material.

Beg to differ. Which is my way of saying that Colin is just plane wrong.  Standards is not an enforceable code which precludes the operation of the criminal law.  Standards or no there are a range of ways in which a court can come to the conclusion.  Look at  the most recent prosecutions in terrorist trials, the Benbrika prosecution for example.  Anyway who cares what ACMA says on that subject.  If there is an offence committed it is hard to conceive the AFP and the DPP deferring to another acronym.  Not in this climate.

So Hezbollah – or JI or al-Qaeda, for that matter – are free to urge people to support the “resistance” and promote it as a religious obligation to participate in its activities – as long as phone numbers are not provided.

Rubbish!  On the most generous analysis it is falacious reasoning.  You are better than that Col.

Secondly, it may not do anything reasonably construed as “soliciting funds for a terrorist organisation”, which again is interpreted as meaning only to provide information such as bank account details.

Again, Rubbish!  Under what principle of law does this proposition fall.  Other legislation applies and would.  This is getting a bit tedious Col.

ACMA did not see any problem with an advertisement on al-Manar soliciting donations for the al-Emdad charity, which is used primarily for supporting the families of Hezbollah fighters. Giving it money is effectively indistinguishable from giving money to Hezbollah, which is illegal in Australia.

This is where I have to tread a little more lightly.  I don’t know what the “did not see any problem” related to.  Was there a complaint and then an ajudication.  I won’t make assertions, that is more Col’s balliwick.  I would say that qualifying words such as “primarily” and “effectively” suggest a less than black and white situation. But if there is a problem why not complain to the many law enforcement bodies in Australia rather than ACMA. Surely that is the best starting point in any event.

While ACMA looked at al-Manar’s programming for only a single week last year, this decision essentially declares that terrorist television is allowed in Australia – unlike the US, Canada, France, Germany, and the EU, all of whose authorities have banned al-Manar.

Did ACMA use the word “terrorist  television.”? No I suspect.  Why, perhaps the “effectively”  says it all.  That ACMA makes a finding different to other regulators is not legally significant.  I tire of the comparisons.  It is often a case of comparing like with unlike.  Different laws, different regulations, different constraints. It is a popular debating technique but one that should be avoided when discussing serious matters.

Al-Manar is reaching much of Australia’s east coast via a satellite feed from Indonesia. The programs reviewed by ACMA included a laudatory portrait of assassinated Hezbollah terror mastermind Imad Mughniyeh, plus several profiles of Lebanese people who assisted Hezbollah. The individuals featured said things such as “[I] would love to die as a martyr”.

Again I haven’t seen it so no point delving.  But on the strength of the analysis so far I think I would need to see what was said and, most importantly, its context.  Too many years as a lawyer to accept an extracted quote in support of a fairly serious allegation. Frankly, as a former academic Colin should not be engaging in such unfortunate style of analysis, the “take my word for it” approach to analysis.

Al-Manar has videos of children undergoing military training accompanied by a rousing chorus singing, “Death, death, death to Israel” and others singing to their mothers asking them for stories about their fathers martyred fighting Israel. Animation segments have portrayed Jews as turning into apes and pigs. This segment is an example of the blatant anti-Semitism on al-Manar – almost certainly contravening Australian racial hatred laws.

Have these segment been shown in Australia?  It is not clear .  As to the “Death to Israel” chant I have seen that on the nightly news in demonstrations, most recently during the Gaza incursion.  While I find the Racial Hatred Laws odious and an ineffective instrument to deal with a more complex problem (while trampling on free speech) if you believe there has been a contravention make a complaint.

The station broadcast a 30-part series in 2003 during the Muslim holy month of Ramadan based explicitly on the famous anti-Semitic forgery The Protocols of the Elders of Zion and also portrayed rabbis as plotting to slaughter non-Jewish children to use their blood for Passover matza. Hezbollah leader Sheikh Hassan Nasrallah described Jews on air as “Allah’s most cowardly and greedy creatures”.

But was this done on the Australian airwaves?  That is the issue at law.  It is a legal question.  These examples, of which I am aware and appalled by, have taken place on Australian airwaves.  It is highly emotional.  This is a nation of laws.

It would seem simply good policy and morality that terrorist organisations should not be allowed to operate television stations in Australia regardless of whether they cross an arbitrary line between merely encouraging people to join and provide funding or actually listing the contact details.

First, that is an appalling drafted sentence.  How much red ink would you pour onto that offering Col.  As to its substance I don’t agree with what Col “seems”.  The law is the law.  There are processes.  Questions of morality are not relevant.  Questions of policy are, but only in the context of the statute and general legal principle.  To do otherwise leads to a capricious exercise of discretion.

It is clear that changes made last December to broadcasting guidelines with regard to terrorism – designed to protect free speech and fair reporting – went too far.

Why?  You have not said what the guidelines were before and what they are now. Nor have you said how that has changed matters in practical terms.  That is a very poor piece of analysis.  As for relying on the examples given, I think I will need full details.

There can be absolutely no public interest in allowing terrorist groups to air their own television stations, such as al-Manar, in Australia.

The first part of the sentence is unobjectionable. Remember, cryng fire in a crowded theatre is not free speech. I am not convinced that the station station ACMA was talking about and which Col describes as al- Manar, is such an organisation.  His reasoning is so flawed I can’t take his arguments and examples on face value.

As we saw this week with the arrest of a group of citizens allegedly planning a terrorist attack on a Sydney army base, there are still Australian residents and citizens vulnerable to recruitment by terrorist organisations to commit violence in Australia.

And?  All rather emotional….. yet again.

Do we really want to give these groups extra help to radicalise such individuals by allowing them to beam their TV propaganda directly into people’s homes?

Again a leap in logic on so many levels.

Colin, it is a poor piece of work.  I think you would get a fail on this one.

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