Cyber Racism and how Australia is failing in the fight against it.

Cyber or digital racism has been amplified during the COVID19 pandemic.

Pre the internet, if you were a racist – you had a limited methodology to disseminate your idea.

Things changed.

It has never been easier for extremist groups to propagate their hatred through various websites and social media platforms.

Racist content online can be permanently entrenched, disseminated to a broader audience than ever before, and proposes some unique challenges, especially in Australia, where we are excruciatingly slow in addressing legal issues in the cyber abuse arena.

Time after time, Australia has chosen to REFUSE or dither endlessly about including global decision re criminalising racial hatred and the dissemination of hate crimes.

When China and Russia were able to levy criticism at Australia for its rejection of Section 4 at the International Convention on the Elimination of All Forms of Racial Discrimination, a global human rights treaty, we might’ve rethought our path. What was so bad about including Section 4 in our legislation?

Section 4 would criminalise racial hate speech and racist propaganda across international borders.

We could have given the police some framework and allowed the criminal law to make inroads into the worst of online racism.

We made it worse by deciding not to include in our legislation the Council of Europe’s First Additional Protocol, an international instrument to address crimes committed over the internet.

We thought about it but said no. Thus, leaving us limited in the way we work with countries who are signatories to this protocol, which inhibits how we deal with cross border cyber -racism.

The pattern continues. Australia is way behind more progressive nations such as New Zealand and Canada.

There is a regulatory hole that Australian governments will NOT deal with.

To quote Gail Mason and Natalie Czapski, ” On Regulating Cyber Racism in Australia.”

There is no comprehensive system for expressly denouncing and remedying the harm of cyber-racism by offering an efficient and accountable process for removing harmful material, backed by a mechanism of enforcement.

Australia has chosen to accept that racial vilification is an acceptable practice, to be defended by hiding behind the right to freedom of speech. ( JAKUBOWICZ 2017), and technology has expanded the effect of hatred on ethnic and Aboriginal communities.

Australia remains the only Western Democracy without a legislative Bill to protect our Human Rights.

“The only national laws relating to racial vilification are civil (the criminal law deals with actual violence), and seek to bring about conciliation between the aggrieved parties and the perpetrators. The legal framework has limited reach, while in 2013 and again in 2017, the national government, arguing that the current protections were a breach of free speech, tried unsuccessfully to remove some of the provisions of the Racial Discrimination Act that give offended parties pathways to seek protection from vilification.12.

The Cyber Racism and Community Resilience (CRaCR) group have argued that Australia needs at the very least to adopt legislation similar to New Zealand’s Harmful Digital Communications legislation34, which requires publishers of racist material to respond to bona fide complaints from the community and remove the material.15 It also empowers prosecutions by the state of those who deliberately create and post seriously harmful material. While there is a recognised defence in freedom of speech, the notion of harm in the digital world advances the linking of the real and digital worlds, especially in societies where racial tensions may exist and where the inflaming of such tensions can undermine safety more widely.” (Cyber Racism and What Can Be Learnt from Australia

Except for Western Australia, we have no criminal liability for racial hate speech.

The Racial Discrimination Act of 1975 Australia has been said by Andrew Jakubowicz

“to effectively exclude from national jurisdiction any criminal liability for race hate speech, and its communication.

In each case, conservatives and libertarians joined in common cause to prevent criminal law restricting freedom of speech and communication. Thus, nearly half a century after the advent of UN Convention, the expression of racism in cyberspace (and hate speech more widely) have only been prosecuted by the police in Western Australia; elsewhere in the states and the Commonwealth a raft of differing constraints in the civil sphere remain operative, with a limited criminal sanction, or as untested propositions that have not been prosecuted.”

Australia has gained dubious renown for a lengthy civil racial vilification trial. This is worth recounting briefly for exposing the sheer difficultly a private individual could expect in an attempt to pursue these matters through civil courts.

Described as the Toben Case, it involved a long-time holocaust denier previously jailed in Germany for his vicious anti- Semitic propaganda. Toben is a Holocaust denier.

When Toben published an advertisement in The Australian in 1996 announcing his website’s existence – discussing at length his Truth about the Holocaust, he rightly drew the ire of the ECAJ ( The Executive Council of Australia Jewry).

Amendments to the Racial Vilification Act in] 1996, allowing civil protection to be included to enable offended parties to be able to seek redress, opened the door for a challenge. Given the now AHRC may only make conciliation and will not pursue legal redress or support civil cases, a court battle began after the unenforceable recommendation from a public inquiry in 1998 that the content is removed and Toben apologise.

Toben’s series of false promises, Federal Court involvement, appeals by Toben and repeated losses in court, contempt of court charges, and more false assurances from Toben that dragged on till he was jailed for contempt of court for his lies and failure to remove the offending material.

The ECAJ attorney was relentless – accepting no money and spending hundreds of hours pursuing Toben and his website.