Paul Fletcher was recently appointed as Australia’s Minister for Communications, Cyber Safety and the Arts.
One of his stated priorities is to:
continue the Morrison Government’s work to make the internet a safer place for the millions of Australians who use it every day.
Addressing online racism is a vital part of this goal.
And not just because racism online is hurtful and damaging – which it is. This is also important because sometimes online racism spills into the real world with deadly consequences.
An Australian man brought up in the Australian cyber environment is the alleged murderer of 50 Muslims at prayer in Christchurch. Planning and live streaming of the event took place on the internet, and across international boundaries.
We must critically assess how this happened, and be clearheaded and non-ideological about actions to reduce the likelihood of such an event happening again.
There are six steps Australia’s government can take.
1. Reconsider international racism convention
Our government should remove its reservation on Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
In 1966 Australia declined to sign up to Article 4(a) of the ICERD. It was the only country that had signed the ICERD while deciding to file a reservation on Article 4(a). It’s this section that mandates the criminalisation of race hate speech and racist propaganda.
The ICERD entered into Australian law, minus Article 4(a), through the 1975 Racial Discrimination Act (RDA).
Article 4 concerns, such as they were, would enter the law as “unlawful” harassment and intimidation, with no criminal sanctions, twenty years later. This occurred through the 1996 amendments that produced Section 18 of the RDA, with its right for complainants to seek civil solutions through the Human Rights Commission.
With Article 4 ratified, the criminal law could encompass the worst cases of online racism, and the police would have some framework to pursue the worst offenders.
2. Extend international collaboration
Our government should extend Australia’s participation in the European cybercrime convention by adopting the First Additional Protocol.
In 2001 the Council of Europe opened the Budapest Convention on Cybercrime to signatories, establishing the first international instrument to address crimes committed over the internet. The add-on First Additional Protocol on criminalisation of acts of a racist and xenophobic nature came into effect in 2002.
Australia’s government – Labor at the time – initially considered including the First Additional Protocol in cybercrime legislation in 2009, and then withdrew it soon after. Without it, our country is limited in the way we collaborate with other country signatories in tracking down cross border cyber racism.
3. Amend the eSafety Act
The Enhancing the Online Safety of Australians Act (until 2017 Enhancing the Online Safety of Children Act) established the eSafety Commissioner’s Office to pursue acts which undercut the safe use of the internet, especially through bullying.
The eSafety Act should be amended by Communications Minister Fletcher to extend the options for those harassed and intimidated, to include provisions similar to those found in NZ legislation. In effect this would mean people harassed online could take action themselves, or require the commissioner to act to protect them.
Such changes should be supported by staff able to speak the languages and operate in the cultural frames of those who are the most vulnerable to online race hate. These include Aboriginal Australians, Muslims, Jews and people of African and Asian descent.
4. Commit to retaining 18C
Section 18C of the RDA, known as the racial vilification provisions, allows individuals offended or intimidated by online race hate to seek redress.
Rather than just leaving this dangling into the future, the government should commit itself to retaining 18C.
Even if this does happen, unless Article 4 of the (ICERD) is ratified as mentioned above, Australia will still have no effective laws that target online race-hate speech by pushing back against perpetrators.
Legislation introduced by the Australian government in April 2019 does make companies such as Facebook more accountable for hosting violent content online, but does not directly target perpetrators of race hate. It’s private online groups that can harbour and grow race hate hidden from the law.
5. Review best practice in combating cyber racism
Australia’s government should conduct a public review of best practice worldwide in relation to combating cyber racism. For example, it could plan for an options paper for public discussion by the end of 2020, and legislation where required in 2021.
European countries have now a good sense of how their protocol on cyber racism has worked. In particular, it facilitates inter-country collaboration, and empowers the police to pursue organised race hate speech as a criminal enterprise.
Other countries such as New Zealand and Canada, with whom we often compare ourselves, have moved far beyond the very limited action taken by Australia.
6. Provide funds to stop racism
In conjunction with the states plus industry and civil society organisations, the Australian government should promote and resource “push back” against online racism. This can be addressed by reducing the online space in which racists currently pursue their goals of normalising racism.
Civil society groups such as the Online Hate Prevention Institute and All Together Now, and interventions like the currently stalled NSW Government program on Remove Hate from the Debate, are good examples of strategies that could achieve far more with sustained support from the federal government.
Such action characterises many European societies. Another good example is the World Wide Web Foundation (W3F)) in North America, whose #Fortheweb campaign highlights safety issues for web users facing harassment and intimidation through hate speech.
Slow change over time
Speaking realistically, the aim through these mechanisms cannot be to “eliminate” racism, which has deep structural roots. Rather, our goal should be to contain racism, push it back into ever smaller pockets, target perpetrators and force publishers to be far more active in limiting their users’ impacts on vulnerable targets.
Without criminal provisions, infractions of civil law are essentially let “through to the keeper”. The main players know this very well.
Our government has a responsibility to ensure publishers and platforms know what the community standards are in Australia. Legislation and regulation should enshrine, promote and communicate these standards – otherwise the vulnerable remain unprotected, and the aggressors continue smirking.
Andrew Jakubowicz, Emeritus Professor of Sociology, University of Technology Sydney.