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Home » AMAN appearance at the Australian Parliament Joint Committee on Human Rights

AMAN appearance at the Australian Parliament Joint Committee on Human Rights

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Australian Parliament House

Tuesday 15 August 2023 | From the Hansard

CHAIR: Welcome. I understand that information on parliamentary privilege and the protection of witnesses giving evidence to parliamentary committees has been provided to you. I invite you to make an opening statement, and at the conclusion of those remarks we’ll invite our members to ask some questions.

Ms Jabri Markwell : I would like to acknowledge the traditional owners of the land I’m on—I want to say the Turrbal people, but I’m not exactly sure. I want to also say that AMAN very strongly supports the Voice to Parliament, and we are very firmly of the view that it will help better governance in Australia. We support it for better governance for First Nations peoples in terms of their engagement and their partnership with government. But one of the reasons why we also support a human rights act in Australia is that we want to see better governance for all Australians, and we think that a human rights act will be an essential part of improving that governance and increasing that trust in democracy, increasing every citizen’s sense of value and place in Australia. That is better for the whole of democracy. In the time that we live in at the moment, with all that instability around democracy and that erosion of trust, I think that it’s such a powerful thing that the Australian government could be doing right now—to embark on a human rights act.

With the greatest respect, I think that previous iterations of human rights plans invest too much ambition and confidence in the scope of government to foresee human rights issues and to problem-solve human rights issues. The benefit of a human rights act is that it introduces a civil process where people on the ground who are experiencing the real consequences are able to initiate structured conversations with the decision-makers that will make a difference. In that way, I think it makes a very good complement to even other reforms that you’re looking at, in terms of whistleblower protections and the national integrity commission—things that are all about strengthening democracy. This is another component where people can start a conversation to problem-solve with people that can make a difference and are in charge of different institutions around Australia, such as law enforcement, which is an institution that the Australian Muslim community continues to have a lot of concerns with because of the counterterrorism framework in Australia. We feel that that would give us a much better, stronger platform to have that engagement and to be heard, which is a difficulty at the moment.

One of the key issues which we want to be heard on is the terrorist act definition in Australia, which includes a motive element that a terrorist act is intended to advance a religious, political or ideological cause. A number of international legal experts have said that that motive element is wrong; it should be taken out of our definition. Our own Independent National Security Legislation Monitor in 2012 recommended it be removed, and the current counterterrorism and human rights special rapporteur has also recommended that a good definition of terrorism focuses on the special intent and the conduct elements but does not focus on the ideological reasons that someone gives for their act of terrorism. It shouldn’t matter what ideological reasons a person gives.

The problem with having that ideological test in there is that it allows for arbitrary implementation in that it places a barrier there where police are considering: ‘Does this meet the test of a violent ideology? Does racism equal a violent ideology?’ We would prefer that they just try and meet the terrorism test and then apply it. If it’s a Nazi, if it’s a racist nationalist, if they meet the test of a terrorist act, the police should apply that so we experience the protection of Australian laws, and, at the same time, our Australian laws don’t become a vehicle for harm. The current framing of religiously motivated terrorism frames our religion as a cause of terrorism, and it perpetuates that at a national level, at a grassroots level, through media. It has been shown in social psychology research published last year by the Centre for Resilient and Inclusive Societies that, no matter how much you try and educate people about Islam and the Muslim community, no matter how much education you give them, no matter how much you try and prove that you’re a good person, no matter how much you try and build a relationship, if they see terrorism media coverage they will revert back to their original prejudice, and they will not be able to overcome that prejudice.

We are now understanding why there continue to be such high rates of anti-Muslim sentiment in the community and it hasn’t been able to shift. In a way, it puts a huge psychological health burden on our community in terms of the health impact of racism and of fearing what’s going to happen to our children who might be troubled, might have autism or might, for whatever reason, get mixed up with police, with what that means for them in terms of their trajectory, and also just being fearful because of how everyone looks at us and sees us and immediately has a lens over the way that they see us because of that framing. So we want a sense of freedom. That is really key to our religious freedoms agenda—to have that removed from the law so we can be free to form our own narratives as a community and not be hostage to misinformation and disinformation online about our community.

In terms of the gaps in our current legal framework, social media companies do not believe that they are subject to Australian discrimination and vilification laws, and they are resisting that in our legal actions, which we have afoot with Meta and Twitter at the moment. So I think there could be some clarification about that. I think that it would be in the public interest for discrimination laws at the federal level and the state level to have extraterritorial application, to give maximum effect and place expectation on those social media companies to apply our standards of hate speech and not their own standards. When I say ‘our standards’, I mean Australian standards. We also have recommendations around the Online Safety Act in terms of its current limitations and how it could reach out to take action to protect whole communities from hatred as opposed to just individuals. We’ve worked on definitions of ‘dehumanising material’ which aim to deal with the very practical problem of how to identify online hate speech, because judicial tests are not really applicable or don’t work very well when you’re trying to identify content at scale. So we’ve done a lot of practical problem solving in this space. I suppose I’ve taken up my five minutes, so I’ll stop.

CHAIR: We’re here to listen to you, not the other way around, so that’s fine. Thank you very much for that comprehensive opening statement as well as the submission. Maybe I’ll come back to the point that you were stressing at the start, around the definition of ‘motive’ versus that of ‘special intent’. Could you expand on the key differences and why you’re advocating for ‘motive’ to be taken out, versus something like ‘special intent’?

Ms Jabri Markwell : Sure. I appreciate the question. I don’t know if you’re a lawyer by background—

CHAIR: Definitely not.

Ms Jabri Markwell : Okay. I appreciate the question. With every criminal offence, you have your intention and your action or conduct components. The terrorist act definition has several intention parts to it and a whole list of possible actions that could go with it. The actions are: to cause serious injury, serious property damage—there’s a list of things. The intention parts are that you must intend to cause that serious injury and you must intend to advance an ideological, political or religious cause. The third intention part is that you must intend to coerce or compel the government or intimidate the population, or a segment of the population, or intend to intimidate the government. What we are talking about is that middle piece, which really speaks to motive. It is odd to put that in a criminal offence definition. For criminal offences—murder, rape—the law doesn’t care about why someone says they did it, typically. It’s very strange to put motive into a criminal offence definition. It’s not necessary, because the intention part that’s already there, which we call ‘special intent’—when I say ‘we’, I mean the UN; I shouldn’t say ‘we’—refers to coercing and compelling a government or intimidating the population. That’s what distinguishes terrorism from, say, mass homicide or whatever else. It’s there. It’s intended to communicate a message to a broader audience through violence. What we’re saying is that the ideological reasons that people give for their terrorism should not be counted in the law and it shouldn’t be endorsed, amplified or glamorised by the law. What we’re saying is that the ideological reasons that people give for their terrorism should not be counted in the law and shouldn’t be endorsed, amplified or glamorised by the law. When we call ISIS ‘religiously motivated’, we are elevating their stature and we’re calling them what they want to be called. The Muslim community doesn’t accept that they’re religious or religiously motivated, so it’s very strange and very hurtful to us that the Australian government refers to them as ‘religiously motivated’. We think that they should be called, if anything, politically or ideologically motivated.

In terms of conversations with international lawyers, I’m part of a lawyers group through the Global Internet Forum to Counter Terrorism. In that group there are people who are affiliated with different European bodies and with the UN Security Council, and their very strong view is that the motive element is a problem because it’s unnecessary. What it does is create the opportunity for arbitrary implementation in the sense of deciding: ‘Okay, well, this person was planning violence. They said that they hate immigrants, Jews or Muslims.’ Is that a violent ideology? I don’t know. Can police say that? Really, that is not an appropriate question. The appropriate question is: ‘Did they plan violence and were they intending to intimidate a population or coerce the government to abandon multiculturalism as a policy?’ That is the key thing.

The problem with focusing on motive is that you end up stigmatising entire communities. There have been warnings about this for some time. The former Chief Justice of the Australian High Court, the late Gerard Brennan, wrote about this in 2007. He published a piece where he said, ‘We are at risk of stigmatising an entire religious community if we continue going down this path.’ Unfortunately it continued. We are now at a point where we are really pleading with the Australian government to stop this because otherwise we are essentially condemned to racism forever for our children and our children’s children. We don’t want that stigma for the rest of our time.

CHAIR: I ask this question to get a deeper understanding. Is it that the Australian Islamic community feels that, by associating and affiliating terrorism with the religious views that they themselves hold to be true, it’s somehow connecting them with the actions of those who they have absolutely nothing to do with and who have committed these awful crimes?

Ms Jabri Markwell : That’s exactly right. It suggests that Islam supports terrorism, violence and sexual slavery—all these things which are absolutely abominable. In fact ISIS targets Muslims more than any other group. There have been more Muslim victims of ISIS than any other group, yet we are perpetuating, at a national level, that they are religious. They want to be known as religious—that they’re fighting a religious war. At the same time, racist nationalists out there want everyone to believe that Muslims are barbaric, savage and incompatible with Australian society. Then we have this message being repeated that our religion motivates terrorism and sexual slavery. It’s like a trap. It just feels like a prison or a trap that we can’t break free from.

CHAIR: I understand.

Ms Jabri Markwell : And in terms of the legal framework, it’s one of those examples where the law actually carries a harm. I’m sure you’ve heard many examples of where law can carry harm. At the moment the Australian government’s governance frameworks are not strong enough to hear where the community is hurting and then make adjustments. That process is not there. That engagement is not there.

CHAIR: We’ve moved a little bit away from the terms of reference, in terms of a key legal ask, clearly, of the advocacy network, which I really appreciate. I appreciate you being so generous with your explanation.

My final question before I hand over to the others is: in the context of looking at what rights need to be enshrined in order to ensure this sort of protection against forms of vilification such as this, do you have any advice to the committee about what things you would like to see in order to strengthen the rights of all people, including the Islamic community, so as to prevent laws such as this being drafted in the future?

Ms Jabri Markwell : I think a human rights act would go a long way. I know that the Human Rights Committee is a strong element but how I’d like it to be strengthened is I would like your review of legislation before legislation is enacted. I think that your perspective is very important because you’re focusing on human rights, whereas the Parliamentary Joint Committee on Intelligence and Security has a different lens. They are valid but we need both lenses with counter-terrorism legislation in particular. I would also just like to put on the record that it’s not only AMAN that’s calling for this change. There was a motion moved by the Alliance of Australian Muslims last year; 200 Muslim organisations asked for this to happen.

CHAIR: I appreciate that. Thank you.

Mr BROADBENT: It is an interesting conversation. How do we bridge that gap, though? I notice you referred back to the legislation, but it’s a basic human fear when they’re fed the information from around the world, and governments are going to react to what the people are feeling. I can entirely understand what you put to us today and thank you for your opening remarks; I really appreciate them. Working through how we deal with that is quite difficult. I am just getting my head around how we change that approach, because it doesn’t matter which national newspaper you go to, it’s the same sort of headline.

Ms Jabri Markwell : Yes. It is hard to change history. I mean, a decision was made 20 years ago by Tony Blair to introduce this category of ‘religiously motivated’ terrorism, then Australia adopted it along with New Zealand and Canada, so we’re the only countries that do this. But we also are countries that have had massive anti-Islam movements. Canada has had more mass shootings and deadly hate crimes than any other G7 country. There continues to be a massive anti-Islam problem in Australia. Our anti-Islam movement started to subside a little bit after Christchurch and it has been a little bit refocused on other communities in the last few years. But it’s still there and it can be awoken at any moment, which is our fear.

In terms of how to change it, we think that removing the motive element in the act will benefit not only the Muslim community; it will benefit all communities because it will just make a very strong message that terrorism is terrorism. Regardless of whatever reasons, ideological reasons people want to give for it, it will be treated as terrorism and punished that way. We then need to start to focus the conversation on not only the social pathway that people go down to when they decide to transition to violence but also the victims of terrorism. I think we need to focus our minds more there. I think it will take possibly another generation to undo the entrenched fear of Muslims that has come about because of this framing that, unfortunately, has happened in 10 years.

Mr BROADBENT: Ten years goes very quickly. I had a friend. I worked with him for a long time. He could not have been more anti-Muslim than anybody you’d ever meet in Australia until his boss gave him Ali to work with. So from then on, he just loved Ali, because Ali wanted to learn all that he had to give. From then on, he may be anti-Muslim, but ‘Ali is different’.

Ms Jabri Markwell : Yes. It’s a nice thing, but it’s also the problem. The studies show that it doesn’t matter how many good relationships you form, it won’t necessarily shift the underlying beliefs that then get passed on to children and influence how people treat other Muslims.

Mr BROADBENT: That may have been the case, but ‘Ali is different’.

Ms Jabri Markwell : Yes.

Mr PERRETT: Thank you for your wonderful work, Ms Markwell. I want to go almost back to something that the deputy chair said in terms of practical outcomes and how should the role or functions of the Australian Human Rights Commission be updated to reflect some of your concerns—so practical changes that we could make?

Ms Jabri Markwell : For starters, I think the Australian Human Rights Commission could end or discontinue its policy of not accepting complaints from the Australian Muslim community, which it currently has in place, which is inexplicable. We do believe that section 18(c) should extend to us because that was the legislators’ intent, to include Muslims within the category of ethno-religious groups, because we do experience racism.

Mr PERRETT: That was the second reading. Is that what you mean?

Ms Jabri Markwell : Yes, in terms of cultural superiority based racism, we experienced that, so we would really like to see that policy discontinued immediately. The Australian Human Rights Commission’s proposals around more positive duties and their inquiry powers around looking at more systemic forms of discrimination we support very much, because any avenue that allows for a structured conversation against a backdrop of human rights can be very powerful, especially where an organisation like ours also knows how to use the law and media. It can be very useful to have these doors that are just simply there for us to be able to open.

Mr PERRETT: It’s been a while since I’ve practiced in Queensland in anti-discrimination law, so I’m more familiar with the old 1991 act than the Queensland Human Rights Act. But could you make comment particularly on how the Queensland Human Rights Act goes in protecting human rights? You have a national focus. Is that right?

Ms Jabri Markwell : We also use the Queensland legislation because it is excellent in the sense that it does cover religion as a ground. We used it successfully to bring an action against former Senator Fraser Anning and were successful with that. He had to bring down 141 hate artefacts online as a result of that action.

Mr PERR ETT: Was that timely and effective?

Ms Jabri Markwell : No, it wasn’t timely. It was effective but not timely; it was drawn out. We think it’s important to have vilification protections, and the Human Rights Act is also a great win for Queensland. However, I would say that it should allow relevant entities to bring actions under the Human Rights Act on behalf of communities. So, for example, AMAN can’t bring an action on behalf of the Muslim community under the Human Rights Act; it has to be an individual. Again, that is sort of really putting the burden on individuals. That’s the whole problem. While I don’t want to see any of these laws be taken away, I think that we do need to start moving towards systems that treat racism as a public harm as opposed to a private complaint, where individuals have to constantly fight and where the financial emotional safety costs come from. I can’t bring actions against—sorry?

Mr PERRETT: Are there any similar jurisdictions that have changed from the individual complaint mechanism to representative complaints?

Ms Jabri Markwell : Queensland allows representative complaints under vilification laws but not under discrimination, which it needs to do; it needs to allow it under discrimination laws as well. It would be an easy fix, and I think that should be contemplated in relation to the federal legislation because a lot of really great conversations can be initiated by community organisations on behalf of their communities.

Mr PERRETT: But are there no other international jurisdictions from that group?

Ms Jabri Markwell : I would say there are no international jurisdictions that I’m familiar enough with that I would recommend. At this point, I do think that Australia is good in the sense that we have free human rights bodies that you can lodge a complaint with, and the process is entirely free up until the tribunal stage. Some of the international jurisdictions that I’m familiar with use criminal laws, which are not great. I don’t think we should be going down that criminal path. We’re not looking at expanding the responsibilities of police or the sorts of carceral approaches there. We would really like to keep this within the civil realm. I think the Human Rights Commission’s recommendations in the Free and equal report were good.

Mr PERRETT: Thank you, Ms Jabri Markwell.

CHAIR: We’ll go to Senator Stewart for the last couple of questions.

Senator STEWART: I just want to pick up on something that you talked about which goes to the burden on individuals, in having to bring something forward in lots of these cases and the costs that they experience. Can you just talk about that a little bit more? I’m interested in the community group stuff and groups being able to bring something forward, as opposed to individuals. Can you elaborate on that burden for individuals a bit?

Ms Jabri Markwell : Yes. In the context that we’re dealing with, the people who hate Muslims often want to see us exterminated or dead, so the idea of us having to go through a conciliation process or even bring actions against publishers who claim they’re not violent but just hate Muslims is not worth it, because they will use that to gain attention and they will compromise your safety. I think that, for a lot of individuals, it’s just a lot of emotional labour that goes through it. That’s why a lot of our attention goes towards upstream solutions that put the responsibility back on Australian regulators, such as ACMA and the eSafety Commissioner, and allow community organisations to also carry some responsibility. But I think it’s also tough because I know some communities don’t have an equivalent of AMAN and they face terrible racism. I’m thinking in particular, for example, of the First Nations community in the context of the Voice.

Senator STEWART: Where I’m going to go next. It’s a very nice lead-in, because you’ve talked about online safety and some of the big social media pages, and there’s been a rise in racism, discrimination and abuse online for First Nations communities. In another inquiry, we heard from the eSafety Commissioner that there’s often a spike in racism, abuse and harassment online in the lead-up to the Indigenous round in football.

Ms Jabri Markwell : Yes.

Senator STEWART: We’re heading into a referendum that’s looking at changing our Constitution, and that’s continuing to build that hate, I suppose. What are the things that the human rights framework or act can do to help with that both for the First Nations communities and for the Muslim community? I’ve been having lots of conversations with people about moderating your social media pages more closely so you’re not facilitating that discriminatory language in your comments section.

Ms Jabri Markwell : Yes. In our submission we referred to the fact that we would really like Australia to adopt anti-dehumanisation standards on top of its current vilification framework. The reason for that is that vilification laws in themselves don’t provide enough guidance to social media companies or even to the Australian people about what crosses the line when it comes to hate speech. Unfortunately, because there are so many different types of communities that are targeted, and so many different types of hate speech, it’s very important to be able to have standards that are clear enough and have a very clear red line on vilifying, with things that people can understand. Dehumanising material is material which suggests that a group of people, on the basis of a protected characteristic, are less than human and less than equal because they lack intrinsic qualities that belong to human beings. For example, suggesting that a group of people, based on a protected characteristic, are polluting, despoiling or debilitating society or that they prey on children, the aged and the vulnerable, that they don’t love their children, that they’re not able to think independently, that they act en masse in a hostile way—these are all dehumanising conceptions, in the sense that it deprives that group of the human qualities of all being different, because, in every group, people are different. Everyone has their own minds, their own stories, their own cultures, their own histories. But that is lost in a dehumanising narrative about a group, where they are just all interchangeable and they are all whatever.

That’s why we’ve said that Australia could really strengthen its approach to its obligations under the Rome statute to prevent genocide, by being very clear about what is dehumanising material and having antidehumanisation standards, which we’ve defined in some of our support material, which could then be used by judges when they’re considering discrimination cases. They could be used by the eSafety Commissioner when they’re considering online material. They could be used by ACMA when they’re considering disinformation and misinformation, to understand if it is dehumanising. That would provide a better understanding, and I think that’s what we’re missing at the moment. There’s a lot of weaponisation of concepts like hate speech, where people say, ‘I don’t believe in hate speech; you’re trying to undo my free speech with your hate speech,’ or ‘I don’t believe in your concept of racism; how can I be racist towards Muslims?’ These are all the arguments that are made. This just overcomes that by saying: ‘Here’s a standard that applies to all human beings. We all deserve to be treated the way that we treat others. Here are some basic guidelines of what is dehumanising.’

Senator STEWART: We could use it in parliament too.

Ms Jabri Markwell : We’ve also proposed it for the parliamentary code of conduct.