Incitement to Hatred and Countering Terrorism: Policy Confusion in the UK and Australia

Incitement to Hatred and Countering Terrorism: Policy Confusion in the UK and Australia Abstract In the UK and Australia, the use of the term ‘hate preachers’ to describe jihadist extremist speakers has become common. In this article, I argue this term is confused, and that the contemporary cause of this confusion lies in new incitement to religious and racial hatred provisions enacted in 2006 and 2010, respectively. To date, scholarly analysis of these provisions has suggested that their primary purpose is to protect vulnerable communities. Analysing the context and justifying discourse of key policymakers during debates, I argue by contrast that their primary purpose is as a counter-terrorism measure, and that both the public debate and the provisions themselves evince and entrench an enduring epistemic confusion. The term ‘hate preachers’ to describe anti-Western terrorist extremist preachers has become common in many Western countries, including the UK and Australia. It is used as shorthand to describe jihadist extremists who encourage or incite others to commit terrorist acts. For example, in August 2016, UK Prime Minister Theresa May announced new plans to combat extremism by ‘hate preachers’ (The Telegraph, 2016). In Australia, Immigration Minister Peter Dutton stated in June 2016 that ‘we won’t tolerate people who are preaching hate in our country’ (ABC News Radio, 2016). In August 2016, former Australian Prime Minister Tony Abbott stated that he had abandoned an unsuccessful 2014 attempt to reform federal racial hatred laws due, in part, to the fact that he was ‘seeking ways to limit jihadi hate preachers’ (Sydney Morning Herald, 2016, p. 3). The term ‘hate preachers’ sends an implicit message in public debate—that the phenomenon of jihadist extremist preaching is very like the phenomenon of hate speech, and that therefore policy designed to address one can also be used to address the other. Utilising the term ‘hate’, which is well known in ‘hate speech’ policy, suggests that the ‘hatred’ at stake in terrorist extremist speech is the same as the ‘hatred’ at stake in other types of hate speech, such as racial hatred, religious hatred or hatred on the ground of sexuality. This assumption, however, is highly contestable. The persistence of the use of this term in public debate in both countries, therefore, warrants examination. In this article, I argue that the two phenomena of jihadist extremist speech and hate speech are distinct and ought not to be treated alike in policy. I argue further that the roots of the contemporary idea that they ought to be treated in the same way in public policy in the UK and Australia lie in the introduction of new incitement to hatred provisions in those countries in 2006 and 2010, respectively, and that these provisions reflect the confusion with which I am concerned. Finally, in contrast to the secondary literature to date, I suggest that the counter-terrorism context in which the new incitement to hatred provisions were introduced, and the policymakers’ discourse around their introduction, mean they are best understood as components of counter-terrorism policy rather than as policy designed to protect the vulnerable. The article proceeds as follows. First, I recount (briefly) an argument I have made elsewhere (Gelber, 2009) in support of the view that hatred expressed against the vulnerable is epistemically distinct from anti-Western extremist speech. Secondly, I outline the provisions as introduced. Thirdly, I review the secondary literature to show that in it, discussion of the rationales for these policies has emphasised their role in protecting vulnerable communities from harm. As part of this discussion, I show that where there has been discussion of a counter-terrorism rationale, this has been brief and demonstrates the epistemic confusion with which I am concerned. Fourthly, I move to examine primary sources on the context in which the provisions were introduced and enacted to show both that a counter-terrorism rationale was core to their introduction, and that the debate evidenced epistemic confusion. I conclude by drawing out the implications of this confusion for the likely efficacy of the provisions. I adopt a comparative, historical case study1 method that analyses these two countries’ policies and justifications. Case studies allow a depth that is not possible using other research methods (Willis, 2007, p. 240). The comparative case study approach is particularly apt in relation to ‘social research about practice and policy’, and research that reflects on how ‘policy profoundly shapes our view of the world’ (Bartlett and Vavrus, 2017, pp. 1–2). The UK and Australia were chosen on the basis of a ‘most similar’ research design (Barasko et al., 2014, p. 179) because they have Westminster systems of government, have similar legal systems, share a commitment to policies that counter racial and religious hatred and both introduced new incitement to hatred provisions in a period of intense counter-terrorism policymaking that occurred after significant terrorist events. They are also close allies who have cooperated closely on the development of new counter-terrorism measures since 2001 (Walker, 2013), and who share counter-terrorism intelligence (Roach, 2011, p. 18; Lyon, 2015, pp. 8, 38). 1. Two phenomena The most common arena within which ‘hatred’ has become a normalised component of public policy is in relation to ‘hate speech’. Hate speech policy is designed to enhance social cohesion by providing protection to vulnerable communities from speech which is regarded as harmful, and which to that extent falls outside the boundaries of acceptable expression in a liberal democratic society. The range of conduct defined as hate speech in law is wide indeed (Brown, 2015, pp. 19–38). Nevertheless, some core characteristics can be agreed upon.2 Hate speech is speech ‘directed against a specified or easily identifiable individual … based on an arbitrary and normatively irrelevant feature’ associated with historically identifiable, systemic discrimination, that ‘stigmatizes the target group’ and views them ‘as an undesirable presence’ (amending Parekh, 2012, pp. 40–41). It is ‘speech or expression which is capable of instilling or inciting hatred of, or prejudice towards, a person or group of people on a specific ground’ (Gelber and Stone, 2007, p. xiii). It is, therefore, speech that harms identified targets, and the groups to which those targets are perceived to belong, by ascribing discriminatory stereotypes to all perceived members of that community. This means hate speech does more than offend its targets; it harms them in tangible ways by enacting discrimination through expression (Barendt, 2005a, pp. 171, 174–175; O’Neill et al., 2004, p. 519). Critical to the capacity of hate speech to inflict a sufficient harm to warrant a policy response (as opposed to merely offence or hurt feelings) is that it takes place in a context in which the targets are people (or groups of people) who characteristically face prejudice, such as racial or sexuality-based minorities. This is not to imply that non-minority individuals might not attempt to use hate speech laws to their benefit; indeed there is some evidence that they try to do so, although with limited success (McNamara, 2002, pp. 148–150; Gelber, 2000, p. 16). But it is to say that phenomenologically there is an intrinsic relationship between the prejudice that a hate speaker expresses towards the identity of the community to which they perceive their target to belong, the nature of that target group, and the ability to characterise their utterance as harmful hate speech.3 Much of the contemporary phenomenon of jihadist extremist hatred against innocent Westerners stands in contrast to this. Jihadist extremism does not typically target groups that systemically have faced marginalisation in Western societies. This is not to say that such targeting never occurs in the context of extremism—some right-wing extremists (such as David Copeland, who carried out nail bombings in London against black targets in 1999) have been inspired by right-wing extremist tracts, and countering this kind of extremism ‘may provide a key justification for the regulation of the most provocative racist material’ (Rumney, 2003, p. 143). This kind of extremist threat remains extant. However, it is not the focus of the ‘hate preacher’ discourse we hear in public debate today. The nomenclature of ‘hate preachers’ is reserved for the component of the terrorism threat that is based on an anti-Western ideology. This ideology, while it is virulent in encouraging and inciting hatred against innocent targets in the West, nevertheless arguably requires a different explanatory framework than what we traditionally understand as ‘hate speech’, since it is not directed at marginalised minorities, but rather at those perceived to be mainstream ‘Westerners’. Deloughery et al. support this view, arguing that hate crimes and terrorism ought to be ‘treated as distinct conduct for both theoretical and analytic purposes’, and that acts of terrorism tend to increase hate crimes against vulnerable communities (2012, pp. 680–681). The need to disaggregate the two was also acknowledged in the 4 May 2016 adoption by the international community of the Joint Declaration on Freedom of Expression and countering violent extremism, which cautioned that ‘under the umbrella of countering violent extremism and preventing violent extremism’ some political leaders had made statements ‘encouraging or promoting discrimination against minorities’.4 This suggested that countering violent extremism ought not to be a guise under which political leaders could simultaneously engage in hate speech. The incitement of hatred against vulnerable minorities in Western societies, and the incitement of violence against innocent Westerners, then, are not synonymous. So why are we seeing the use of the term, ‘hate preachers’, which treats them as though they are? 2. The new incitement to hatred provisions In the UK, a new incitement to religious hatred provision was enacted in 2006, although there had been attempts to introduce one since 2001 (Bleich, 2011, p. 23).5 The Racial and Religious Hatred Act 2006 introduced a new offence of inciting religious hatred into the Public Order Act (Pt 3A) (Ekaratne, 2010, p. 212; Brown, 2008, p. 3; Cumper, 2006, pp. 254–255; Goodall, 2009, pp. 90–91). It stated, A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatredand that A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred.There are additional provisions for publicly performing a play, distributing, showing or playing a recording, or broadcasting a programme which is threatening, and where the performer, distributor or broadcaster intends to stir up religious hatred.6 The enacted offence also contains a wide-ranging exemption that states it should not be understood in a way that ‘prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or proselytising’.7 This sets a higher bar for the offence of inciting religious hatred than the pre-existing offence of racial hatred on which it was initially modelled (Nash and Bakalis, 2007, pp. 350–352), because the incitement of religious hatred requires threatening conduct (whereas the incitement of racial hatred can occur in relation to threatening, abusive or insulting conduct), and intent is required (McNamara, 2007, p. 171; Cumper, 2006, pp. 254–255; Goodall, 2007, p. 90; Hare, 2006, p. 524). The exemptions, higher bar and requirement of intent were introduced in response to the considerable parliamentary and community opposition, on free speech grounds, that mobilised in response to the proposal (Bleich, 2011, p. 25; Brown, 2008, pp. 3–4; Cumper, 2006, p. 255; Hare, 2006, p. 524; Barendt, 2011, pp. 42–43). In Australia policy reform that began in 2005 eventually resulted in an incitement to hatred provision being introduced in 2010. In 2005 the Australian government, in the context of its broader counter-terrorism response to the London bombings, revived the concept of ‘sedition’. One sedition provision criminalised the urging of violence against a group or groups distinguished by race, religion, nationality or political opinion, where the force or violence threatened the government (Meagher, 2006, p. 290; Saul, 2005, p. 876).8 An exemption was included for attempting, in good faith, to change law or policy, fair reporting and industrial disputes. This is clearly not a straightforward religious (or other ground) incitement of hatred offence because the grounds on which it relied included political opinion, which is normally not a category in hate speech statutes, and because it connects the urging of violence to a threat to the government, which is why it was posited as a sedition offence. I have critiqued the contradictory rationales for this offence elsewhere (Gelber, 2009). In 2010, these sedition offences were amended by being renamed ‘urging violence’ offences, and by adding a requirement of intent that force or violence will occur. They were disaggregated into four new offences: two retained a connection between the urging of violence against groups, or members of groups, and a threat to government (Gelber, 2016, p. 91). Two new incitement to hatred offences were created, which state that a person commits a criminal offence if, the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); the first person does so intending that force or violence will occur; and the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.9 or if the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); the first person does so intending that force or violence will occur; the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.10A defence to both provisions applies for acts done in good faith to, among other things, point out defects in law or policy, pointing out matters that produce feelings of ill-will between groups in order to remove those matters, industrial disputes, or reporting on matters of public interest.11 In both countries, then, provisions were introduced that prohibit incitement to hatred on grounds normally utilised in hate speech law, that is, religion in the UK, and race and religion in Australia. Both countries have enacted exemptions to those laws designed to protect freedom of speech, although the exemptions in the UK are specific to the ground of religion, whereas those in Australia are more widely applicable to a range of political speech. They permit similar maximum penalties—seven years imprisonment in the UK,12 and five years13 imprisonment in Australia. 3. Rationales in the secondary literature A review of the secondary, scholarly literature on these policies suggests they were justified in both countries by a rationale of protecting vulnerable communities; in other words, that their central purpose is genuinely as a measure to combat racial and religious hatred qua hate speech. The three most common rationales suggested are that the laws: (i) remedy pre-existing gaps in coverage of the law relating to hate speech; (ii) were a response to increases in anti-Muslim hate speech after the 2001 terrorist attacks; and (iii) were needed as a counterpoint to the fact that counter-terrorism policy was impacting disproportionately on the Muslim community. 3.1 Coverage The provisions in the UK were argued to be a response to gaps in the laws’ coverage that did not provide protection to followers of all religions equally. There were three ways this occurred. First, the pre-existing racial hatred provisions in the Public Order Act had been interpreted to mean some religious identities were covered but others were not. Where a case could be made that a religious identity was also an ethnic identity; in other words, that a faith was mono-ethnic (Goodall, 2007, pp. 93, 96, 98; Goodall, 2009, p. 225; Nash and Bakalis, 2007, pp. 351–352), the incitement of hatred against that group has been actionable as incitement of racial hatred. This meant that instances of hatred against Jews and Sikhs have been covered by racial hatred provisions, whereas those against Muslims, Hindus and other multi-ethnic faiths have not. Clearly, determining some faiths as mono-ethnic and others as not is problematic on empirical grounds. Nevertheless, this problem in the application of pre-existing incitement to racial hatred provisions gained significant traction in the public debate (Hare, 2006, p. 525; Ekaratne, 2010, p. 24; Thompson, 2012, p. 216; Barendt, 2005b, p. 895), with ‘pressure brought to bear on government by Muslim organizations that campaigned vigorously’ on this ground (Cumper, 2006, pp. 253–254). Moreover, some claimed that hate speakers such as the British National Party were aware of, and exploiting, this gap in the law by tailoring their discourse to avoid direct reference to racial identities (Nash and Bakalis, 2007, p. 356; Jeremy, 2007, p. 197; Goodall, 2007, p. 94). In Australia, this same gap exists in relation to national racial hatred laws and in the states and Territory in which religion is not an explicit ground for protection under such laws (Evans, 2012, pp. 171–176). The same debate has occurred over the application of racial vilification provisions to protect some ethno-religious identities, such as Jews and Sikhs, but not others including Muslims (Evans, 2012, pp. 65–67; Gelber, 2011, pp. 100–101). However, this was not an explicit component of the public debate over the introduction of sedition laws in 2005, or the creation of the incitement offences in 2010. Secondly, a common law blasphemy provision extant at the time in the UK granted protection to Anglican Christians but did not protect other Christian denominations, or other faiths (Nash and Bakalis, 2007, pp. 352, 360–364; Hare, 2006, p. 525; Cumper, 2006, p. 2532; Brown, 2008, p. 2). This argument is not entirely straightforward since the offence of blasphemy had been interpreted in diverse ways in the courts (Jeremy, 2007, p. 193). In any case, in 2008 UK blasphemy laws were abolished (House of Commons, 2008). The same problem applies in Australia with blasphemy remaining an extant offence in some states,14 and raising the same issues of coverage (Pringle, 2011, p. 322). Thirdly, other provisions can be, and have been, used to prosecute the conduct captured by the new incitement to hatred offences. In the UK, possible alternatives include glorifying or encouraging terrorism, inciting terrorism or soliciting murder (Ekaratne, 2010, pp. 213–214), religiously aggravated abuse or violence, criminal harassment, incitement to crime or aggravated breach of the peace, as well as penalty enhancements if an offender is seen to be motivated by religious (or other) bigotry (Bleich, 2011, p. 26; Goodall, 2007, pp. 91–93). There is also an extant public order offence of engaging in conduct that is threatening, abusive or insulting that is likely to cause harassment, alarm or distress. Existing law therefore covered incitement to religious hatred in all but name (Bleich, 2011, p. 26) and some questioned whether the gap in this respect was genuine, or a problem not with the law but with its enforcement (Goodall, 2007, pp. 92–94). In Australia, the same argument was made during debate over the introduction of the 2005 provisions; that they were unnecessary because other laws existed that could be used to prosecute this kind of conduct including incitement to commit a crime, criminal harassment and aggravated offences (Chong et al., 2005). Since the incitement to hatred offence was introduced as a hatred offence in the United Kingdom and not, as in Australia, under the aegis of sedition, arguments about coverage predominate in the literature on the UK. In relation to Australia, there is much less explicit consideration of the question of coverage, although the same arguments can be made in relation to law pre-existing the introduction of the incitement to hatred provisions. 3.2 An increase in anti-Muslim hate speech The second rationale posited in the literature is that the provisions give protection to a community facing increased hate speech after the 2001 terrorist attacks. In the UK, this rationale was explicitly connected to the new provision in public debates spanning a number of years (Bleich, 2010, pp. 70, 79; Cumper, 2006, p. 253; Nash and Bakalis, 2007, pp. 352, 356, 365; Thompson, 2012, p. 216; Rumney, 2003, p. 138; Walker, 2011, p. 382). In Australia, numerous community and academic reports noted ongoing abuse and hatred towards Muslims, with a concomitant recognition that the 2001, and later, terrorist attacks had led to an increase in such activities (Cahil et al., 2004, pp. 79, 81, 84–85, 90; Dunn et al., 2007, pp. 568, 570; Dreher, 2005; Briskman, 2015).15 Muslim community members interviewed for an empirical study into hate speech supported these findings (Gelber and McNamara, 2015, p. 645). A parliamentary inquiry into the draft legislation that introduced the 2005 provisions also explicitly raised this concern, based on submissions made to it by human rights authorities and community organisations (PJCIS, 2006, pp. 23–24). 3.3 The disproportionate impact of counter-terrorism policy on the Muslim community A third rationale in the literature is that incitement to hatred provisions were introduced to ameliorate the disproportionate impact of the enforcement of counter-terrorism policy on the Muslim community (Walker, 2011, p. 382). In both countries, counter-terrorism laws were written in facially neutral ways. In both countries, it was recognised as unhelpful to the agenda of countering violent extremism to treat all members of the Muslim community as potential terrorists, and necessary to involve the Muslim community in counter-terrorism efforts. Thus, in the UK and other European countries, Bleich argues that anti-violence policies adopted as part of the counter-terrorism framework deliberately avoided explicit mention of Islam (Bleich, 2010, pp. 67, 70, 72). Yet at the same time the Muslim community was disproportionately affected by policies such as increased surveillance, tracking and scrutiny (Bleich, 2011, p. 26; Bleich, 2010, pp. 69–71). In this context, the new religious incitement provision was ‘meant to show that the state is not just listening but also acting upon Muslim concerns’ (Bleich, 2010, p. 79.). Other commentators also recognised the disproportionate impact of counter-terrorism policy on Muslim communities (Nash and Bakalis, 2007, p. 365; Brown, 2008, p. 3), and of the symbolic importance of the law in response to those concerns (Cumper, 2006, p. 249). In Australia, governments also presented counter-terrorism policy in facially neutral terms. Yet it was also documented that counter-terrorism policy enforcement was impacting disproportionately on the Muslim community, who reported to a parliamentary inquiry that they ‘feel under greater surveillance and suspicion’ and were becoming increasingly alienated (PJCIS, 2006, pp. 23–38; see also Michalis, 2009; Spalek, 2010; Islamic Council of New South Wales, 2004). These three rationales, then, were extant in both countries. In the UK, the incitement to religious hatred law was explicitly considered to be a remedy for gaps in the law’s protection, a response to anti-Muslim attacks, and a response to the disproportionate impact of counter-terrorism policy on the Muslim community. In Australia, the provision that developed into incitement to religious and racial (and other) hatred laws in 2010 was enacted in the context of a recognised increase in anti-Muslim hate speech, and the disproportionate impact of counter-terrorism policy on the Muslim community. In both countries, therefore, the secondary literature suggests that the provisions were primarily designed to protect vulnerable communities from harm. 3.4 A counter-terrorism rationale? What has been made in the secondary literature of the possibility of a counter-terrorism rationale? I have suggested that this argument is brief; where I draw below from secondary sources I am emphasising a small component some of those authors’ arguments. I show that the literature exhibits a confusion in suggesting that the provisions are capable of capturing both phenomena—that of inciting hatred against marginalised minorities, and that of inciting hatred against innocent ‘Westerners’. Scholarly recognition of the counter-terrorism rationale has included that, in the UK the incitement to religious hatred provision was noted—very briefly—to be capable of targeting the kinds of incitement to religious hatred that might be engaged in by radical Islamic preachers including, ‘radical Muslim clerics … [who] stir up hatred against Christians and Jews’ (Brown, 2008, p. 2). This view argues that the incitement provision might in practice be used to target radical Muslim extremists who could contribute to an atmosphere in which people might be encouraged to be involved in terrorism, instead of being used exclusively to target incitement to religious hatred per se. Hare also suggested that the law might be used more frequently against radical Muslim preachers than against other speakers engaging in religious hatred (2006, p. 533).16 Brown suggested that the Blair government in proposing a religious hatred offence, among other things, wished to ‘eliminate the sort of climate of hatred which … might give rise to suicide bombers’ (2008, p. 3). Countervailingly, Goodall argued that, ‘terrorism and religious debate should not be carelessly compared’ (2007, p. 109). In the literature on the Australian provisions, Saul argued that the 2005 sedition provision ‘falsely stigmatizes group-based violence as terroristic’ and that ‘collapsing these categories [of group-based violence and terrorism] can only reinforce the stereotyping of certain ethnicities or religions as terrorists’ (Saul, 2005, p. 877). Meagher described the 2005 sedition provision was a type of ‘racial vilification and sedition law’, which was a seriously flawed ‘seditious form of group racial incitement’ (Meagher, 2006, pp. 290, 300). Both these analyses occurred shortly after the 2005 sedition laws were introduced, and with the exception of my own contribution questioning the coherence of the provisions (Gelber, 2009) no further scholarly analysis of the Australian provisions has occurred.17 There has, then, been very brief recognition of the existence of a counter-terrorism rationale in the scholarly literature. This has occurred first, in a recognition of the dual purpose of the provisions, which conflate preventing the incitement of hatred against marginalised communities with preventing terrorist extremism. Secondly, there has been criticism of the connection between the two types of speech. However, this criticism did not occur on epistemic grounds, but instead in the more limited sense of critiquing the treatment of racist violence as terroristic violence. Additionally, none of these contributions suggests that the provisions are core components of the counter-terrorism apparatus of the UK and Australia. 4. Counter-terrorism policymaking In this section, I provide evidence to corroborate my argument that the counter-terrorism rationale is far more important than has been recognised to date, and that epistemic confusion existed in the policy debate. I focus both on the policy context within which the incitement to hatred provisions were introduced, and the discourse of policymakers at the times they were proposed, debated and introduced. In both the UK and Australia the terrorist events of September 2001 and July 2005 led to a flurry of counter-terrorism policymaking (Barendt, 2005b; Cole, 2003; Gearty, 2013; Gelber, 2016, pp. 56–62; Roach, 2011, pp. 238–360; Smith, 2007; Scheinin, 2010; Walker, 2011). An important component of this counter-terrorist lawmaking in both countries was a desire to devise policy that would enable the government to intervene against, and prevent, the indirect enablers of violent extremism. The kinds of policies enacted to try to address the indirect enablers of violent extremism included in the UK, criminalising the encouragement of terrorism, banning organisations that encourage or glorify terrorism, and banning displaying clothing or articles that symbolise prohibited groups.18 Control orders were introduced for people who encouraged terrorism,19 and publications that encourage terrorism were banned.20 In Australia, similar measures included banning organisations that advocate terrorism,21 banning terrorist-related publications,22 and criminalising the advocacy of terrorism.23 Policymakers were explicit about their desire to establish new laws that would allow them to prevent terrorist radicalisation at much earlier stages than the planning or commission of a terrorist act. In the UK, Home Secretary John Reid stated in 2006 that he was, ‘determined to act against those who, while not directly involved in committing acts of terrorism, provide support for and make statements that glorify, celebrate and exalt the atrocities of terrorist groups’ (cited in Bleich, 2010, p. 74). In Australia, Prime Minister John Howard stated in 2005 that, ‘there is a concern in the Australian community … [that] there are some who do encourage violence and hatred, and there are some who do give comfort and aid and encouragement and succour to terrorism’ (Howard, 2005a) and that the government needed to be able to prevent that.24 As I will show below, this context provided an environment within which incitement to hatred provisions came to be seen, and justified, as part and parcel of the broader counter-terrorism policy agenda. Analysis of public debates attests to suggestions that the incitement to hatred provisions could also be mobilised to service a policy mandate to combat terrorist extremist speech. The quotations below are representative of the public discourse in national security speeches, statements and press conferences by the Prime Ministers, Attorneys-General and Home Secretaries in the UK and Australia between September 2001 and September 2011.25 In the UK, political leaders linked racist and religious hatred and extremist terrorist speech very soon after 9/11. On 15 October 2001, Home Secretary David Blunkett’s statement to the House of Commons on steps the government intended to take to counter-terrorism said, there are those who are prepared to exploit the tensions created by the global threat. Racists, bigots, and hotheads, as well as those associating with terrorists, are prepared to use the opportunity to stir up hate. It is therefore my intention to introduce new laws to ensure that incitement to religious, as well as racial, hatred will become a criminal offence. Fair comment is not at risk, only the incitement to hate … justice for the majority and the security of our nation will be secured (2001a).He directly connected the need to protect some members of the community against religious hatred with the need to protect the community as a whole against terrorist threats. In justifying an unsuccessful attempt to introduce a religious hatred offence weeks later, he stated that he hoped, ‘that the provision will protect all those who have deeply held religious beliefs from having that faith used to incite hatred against them’, while at the same time giving ‘public reassurance and calm in our communities following the hatred and associated dangers arising from the events of 11 September’ (Blunkett, 2001b). In the House of Commons debate around a proposal to introduce an incitement to hatred law in 2001, then Home Secretary David Blunkett stated that introducing a religious hatred provision was done ‘to try and meet genuine concerns at a time when reassurance and increased security and surveillance were judged to be necessary’ (2001c, pp. 1113–1114, cited in Hare, 2006, p. 523), thereby connecting reassuring the Muslim community with counter-terrorism policy. In 2005, Prime Minister Tony Blair stated that, ‘time and again over the past few weeks I’ve been asked to deal firmly with those prepared to engage in … extremism’. He announced that the government was developing a ‘comprehensive framework for action in dealing with the terrorist threat’ that was to include the addition of ‘fostering hatred, advocating violence … or justifying such violence’ as grounds for deportation, adding that people who tried to ‘incite hatred or engage in violence against our country’ had no place in the UK (Blair, 2005). The treatment of religious hatred and extremism as analogous was marked. In a later statement on national security to the House of Commons, Prime Minister Gordon Brown continued this close discursive positioning of racial and religious hatred, and terrorist extremism. He talked about new ‘dedicated regional counter-terrorism units’ which were ‘responsible for overseeing investigations into those who recruit terrorists and promote hate’, and of the need to ‘disrupt the promoters of violent extremism [and] … to counter online incitement to hatred’ (2007). After the election of the Cameron government in 2010, then Home Secretary Theresa May signalled that she was aware of problems with this juxtaposition, saying the previous government had ‘muddled up work on counterterrorism with the normal work that needs to be done to promote community cohesion’ (2010). Six months later she reiterated the problem, saying the previous government had, ‘confused government policy to promote integration, with government policy to prevent terrorism’ (May, 2011). However, her Prime Minister continued to warn against ‘preachers of hate’, meaning terrorist extremists (for example, BBC News, 2008). In Australia, a connection between racial and religious hatred and terrorist extremist speech also emerged immediately after 9/11. In October 2001, the then Prime Minister John Howard was pressed in an interview on the question of whether Australia should introduce laws preventing terrorist propaganda, and he responded that although such a law would raise free speech concerns, a line was crossed when people incited violence. He added, ‘the difference between inciting violence and inciting hatred is very blurred’ (2001). When the sedition laws were created in 2005, Prime Minister Howard wavered in this view, saying, ‘I do not think religious and racial vilification laws work, and we as a party have opposed them in the past … you can’t graft racial vilification laws into the law relating to sedition’ (2005b). However, his Attorney General Phillip Ruddock contradicted him by stating that introducing such a law would constitute ‘in part implementation of Article 20 of the ICCPR which requires State Parties to prohibit advocacy that incites violence, discrimination or hostility’ (Ruddock, 2005a, cited in SLCLC 2005). Ruddock conceded that the new offences criminalised incitement to hatred when he stated that the new sedition offence would, ‘address problems with those who incite directly against other groups in our community’ (2005b repeated in Ruddock, 2005c). One year after the 2005 sedition laws were introduced, and during a review of those laws undertaken by the Australian Law Reform Commission, the Attorney General made a submission that claimed there was a ‘common theme between sedition and terrorism offences, that being, violence between racial groups’ (Ruddock, 2006, p. 3). In 2009, in a very similar manner to what had happened after a change of government in the UK, a new federal Labor government seemed to become aware of this confusion when it embarked on a ‘Lexicon of Terrorism’ project which cautioned against the counter-productive use of certain words that, ‘can cause anxiety among Australians and create divisions’ in the community, and encouraged words that were ‘conscious of not alienating broad ethnic and religious groups by labelling them in a way that causes prejudice or leads to misunderstanding’ (McClelland, 2009a). However, again in a manner similar to the UK, this was later contradicted. When the amendments that created the incitement to hatred provisions were being considered, Attorney General Robert McClelland stated that ‘countering violent extremism’ was a top priority of the government, and that doing so required both security responses and measures to enhance social cohesion. He stated that it was in this context that the government was planning to implement a new offence of, inciting violence against an individual on the basis of race, religion or nationality … this would expand the opportunity for prosecuting those who attempt to induce others, including vulnerable youths, to commit acts of politically motivated violence (2009b).In justifying the creation of the incitement to hatred offences, he elided incitement to racial and religious hatred and incitement to terrorist extremism, in the same way as had occurred in the UK. When the proposal to create the incitement to racial and religious hatred provision was put to the parliament in March 2010, the Attorney General reiterated the need for an ‘effective legal framework’ that is ‘suited to the achievement of a just and secure society’ (McClelland, 2010), the same colocation of social cohesion and counter-terrorism measures as had occurred in the UK. Interestingly, the difficulty of analogising the protection of marginalised minorities with combatting extremist terrorist speech was recognised by a very small number of policymakers in public debates, but these actors’ views did not achieve significant traction. In the UK, in response to the unsuccessful 2001 attempt to introduce a religious hatred law in the Anti-Terrorism, Crime and Security Act, some members of the House of Lords objected to the proposal (Hare, 2006, p. 523). Sir Oliver Letwin in the House of Commons opined that ‘there was never a place’ in a ‘Bill about terrorism’ for ‘a clause on incitement to religious hatred’ (2001). This view did not prevail. For example, Labour MP Frank Dobson stated his support for outlawing discrimination on the ground of religious beliefs, and said he supported the government’s proposal ‘even though it was included in a Bill that relates to terrorism’ (2001). In Australia, Prime Minister John Howard opined that, ‘you can’t graft racial vilification laws into the law relating to sedition’ (2005b) while legislating to do just that. 5. Conclusion The evidence substantiates my argument that the incitement of hatred against the systemically vulnerable and against Westerners were treated in policy debate as epistemically synonymous, and that the scholarly literature has not recognised this problem to date. It also supports my argument that the counter-terrorism rationale ought to be given far greater emphasis in our understanding of the incitement to hatred provisions in both the UK and Australia than has occurred in the literature to date. One effect of this confused policymaking is that, in public debate today, all incitement to ‘hatred’ is treated synonymously. ‘Hatred’ is viewed as the central defining element of harmful speech, although this does not accord with the literature on how and why it is that hate speech can harm. Hate speech against minorities is treated as the same policy puzzle and in the same policy framework as terrorist speech against ‘Westerners’. One of the reasons this occurred is almost certainly because it was useful to policymakers at the time to draw on the extant public support for laws prohibiting racial hatred, and in doing so to harness civil society support for the prevention of racial and religious hatred, in order to justify new and controversial counter-terrorism measures. However, in light of the argument that the two phenomena are epistemically distinct, the fact that this happened raises serious questions about the likely efficacy of these policies in achieving either, let alone both, of these policy objectives. Footnotes 1 Case study is an ‘approach that uses in-depth investigation of one or more examples of a current social phenomenon, utilizing a variety of sources of data’ (Keddie, 2006, pp. 41–42). Case studies ‘illuminate the reader’s understanding of the phenomenon under study. They can bring about the discovery of new meaning, extend the reader’s experience, or confirm what is known’ (Merriam, 1998, p. 13, cited in Willis, 2007, p. 239). 2 My purpose here is not to define as controversial an idea as ‘hate speech’ in an immutable manner, but rather to explore conceptually the nature of expressions that can be characterised in this way. 3 This is why I do not, in principle, support the use of the term ‘hate’ to categorise ‘hate speech’. It implies that any expression of antipathy or dislike towards any target is substantively the core of the phenomenon. By contrast, ‘hate speech’ is better understood as a discursive act of harm in the sense of an act of exclusion, marginalisation and discrimination targeted at those able to be identified as systemically vulnerable within the context in which the speech occurs (Gelber, forthcoming). 4 Accessed at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19915&LangID=E on 10 April 2017. 5 For example, as a component of the Anti-Terrorism Crime and Security Bill 2001; a component of the Serious Organised Crime and Police Bill 2004, and the topic of a Select Committee report on Religious Offences in England and Wales (2002–2003) HL95-1, 10 April 2003 which failed to reach agreement (Ekaratne, 2010, p. 212; Hare, 2006, pp. 523–524; Bleich, 2011, pp. 23–25). 6 Racial and Religious Hatred Act 2006 (UK), ss 29B(1), 29C(1), 29D(1), 29E(1), 29F(1). 7 Racial and Religious Hatred Act 2006 (UK), s 29J. 8 Anti-Terrorism Act (No. 2) 2005, amending the Criminal Code, s 80.2(5). 9 Criminal Code (Cth), s 80.2A(2). 10 Criminal Code (Cth), s 80.2B(2). 11 Criminal Code (Cth), s 80.3. 12 Racial and Religious Hatred Act 2006 (UK), s 29L. 13 Criminal Code (Cth), ss 80.2A(2), 80.2B(2). 14 The only successful use of the provision was in 1871, but the last attempt to use it was in 1998 (Pringle, 2011, pp. 318–320). 15 See also the special issue in which Brinkman (2015) is published, ‘Islamophobia and Crime – Anti-Muslim Demonising and Racialised Targetting’. 16 This prediction has proved incorrect—there have been two successful prosecutions under the UK provision. One was a 2011 conviction of G. Bilal Ahmad on a range of terrorism offences, an offence of soliciting to murder, and an offence of publishing written material with intent to stir up religious hatred. He had engaged in discussion online about a college that had prohibited Muslim students from wearing headscarves, and described Hindus in ways that vilified and incited violence against them (CPS, 2011). The second was a 2015 conviction of three Sikh men (Satinderbir Singh, Harjinder Singh Athwal and Damanpreet Singh ) who engaged in an online discussion alleging risks to Sikh women who dated Muslim men. This conviction also took place in the context of other violent offences including conspiracy to commit, and occasioning, bodily harm (CPS, 2016). 17 There have been no prosecutions to date under the Australian provisions. The reasons for this are complex and myriad, and beyond the scope of this article’s remit to explore. 18 Terrorism Act 2000, ss 11, 12, 13; Terrorism Act 2006 Cl. 21. 19 Prevention of Terrorism Act 2005, s 1(9); Terrorism Prevention and Investigation Measures Act 2011, s 4. 20 Terrorism Act 2006, s 2; Counter-Terrorism Act 2008, s 2(1). 21 Anti-Terrorism Act (No. 2) 2005; National Security Legislation Amendment Act 2010, Sch. 2; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. 22 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007; National Security Legislation Amendment Act 2010, Sch. 2. 23 Counter-Terrorism Legislation Amendment (Foreign Fighters Act) 2014. 24 This is recognised in the scholarly literature. Bleich, for example, cites Saggar (2009) in emphasising how counter-terrorism policy in the UK targeted the ‘circle of tacit support’ around terrorists that ‘helps to enable the perpetrators to carry out their acts’ (2010, p. 69). Bronitt and Stellios point to the Australian government’s shift to a focus on the perceived ‘root causes’ of terrorism (2006, p. 924). 25 A qualitative analysis of these texts was undertaken as a type of discourse analysis that sought to categorise language use. The political elites were chosen as the site for the study due to their authority in public discourse, especially their authority in justifying the chosen policy responses (Breuning, 2011, p. 492; Van Dijk, 1997, p. 2; Chilton and Schäffner, 1997, p. 211). UK PM n = 599, UK HS n = 193, Aust PM n = 701, Aust AG n = 426. For the full study, see (Gelber, 2016). 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( 2010) ‘Speech to Royal United Services Institute: Our Response to the Terrorist Threat’, 3 November, accessed at http://webarchive.nationalarchives.gov.uk/20110109132028/http://www.homeoffice.gov.uk/media-centre/speeches/terrorist-response on 22 June 2016. May T. ( 2011) ‘House of Commons Hansard: Statement to the House on the Review of PREVENT’, 7 June. McClelland R. ( 2009a) ‘Media Release: Lexicon of Terrorism Project’, 6 July, accessed at http://pandora.nla.gov.au/pan/21248/20100723-1500/www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2009_ThirdQuarter_6July2009-LexiconofTerrorismProject.html on 26 August 2016. McClelland R. ( 2009b) ‘Speech to Australian Strategic Policy Institute’, 21 July, accessed at http://pandora.nla.gov.au/pan/21248/20100723-1500/www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_ThirdQuarter_21July2009-SpeechtotheAustralianStrategicPolicyInstitute.html on 20 June 2016. McClelland R. ( 2010) ‘Hansard: Second Reading Speech – National Security Amendment Bill’, 18 March. McNamara L. ( 2002) Regulating Racism: Racial Vilification Laws in Australia , Sydney, Sydney Institute of Criminology. McNamara L. ( 2007) Human Rights Controversies: The Impact of Legal Form , Routledge Cavendish, Oxon. Meagher D. ( 2006) ‘Inciting Racial Violence as Sedition: A Problem of Definition?’, Criminal Law Journal , 30, 289– 301. Michalis M. ( 2009) ‘Australia’s Handling of Tensions between Islam and the West under the Howard Government’, Asian Journal of Political Science , 17, 45– 70. Google Scholar CrossRef Search ADS   Nash D., Bakalis C. ( 2007) ‘ Incitement to Religious Hatred and the “Symbolic”: How Will the Racial and Religious Hatred Act 2006 Work?’, Liverpool Law Review , 28, 349– 375. Google Scholar CrossRef Search ADS   O’Neill N., Rice S., Douglas R. ( 2004) Retreat from Injustice: Human Rights Law in Australia , 2nd edn, Sydney, Federation Press. Parekh B. 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( 2005c) ‘Hansard: Response to Questions in Writing’, 29 November. Ruddock P. ( 2006) ‘Attorney General’s Submission No. 92 to the Australian Law Reform Commission’s Fighting Words: A Review of Sedition Laws in Australia’ , Canberra, Attorney General’s Office. Rumney P. ( 2003) ‘The British Experience of Racist Hate Speech Regulation: A Lesson for First Amendment Absolutists?’, Common Law World Review , 32, 117– 160. Saggar S. ( 2009) ‘ Boomerangs and Slingshots: Radical Islamism and Counter-terrorism Strategy’, Journal of Ethnic and Migration Studies , 35, 381– 402. Google Scholar CrossRef Search ADS   Saul B. ( 2005) ‘Speaking of Terror: Criminalising Incitement to Violence’, University of New South Wales Law Journal , 28, 868– 886. Scheinin M. ( 2010) ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, A/HRC/16/51, 22 December. Senate Legal and Constitutional Legislation Committee ( 2005) ‘Provisions of the Anti-Terrorism Bill (No. 2) 2005’ , Canberra, Parliament of Australia. Smith A. ( 2007) ‘ Balancing Liberty and Security? A Legal Analysis of United Kingdom Anti-Terrorist Legislation’, European Journal on Criminal Policy and Research , 13, 73– 83. Google Scholar CrossRef Search ADS   Spalek B. ( 2010) ‘ Community Policing, Trust and Muslim Communities in Relation to “New Terrorism”’, Politics and Policy , 38, 789– 815. Google Scholar CrossRef Search ADS   Sydney Morning Herald ( 2016, August 13–14) ‘Abbott Revisits Debate Over Free Speech Law’, p. 3. (Massola 2016). The Telegraph ( 2016, August 17) ‘Ministers Looking at Banning Hate Preachers from Mosques and Universities to Curb Radicalisation after Anjem Choudary Conviction’. Thompson S. ( 2012) ‘ Freedom of Expression and Hatred of Religion’, Ethnicities , 12, 215– 232. Google Scholar CrossRef Search ADS   Van Dijk T. ( 1997) ‘The Study of Discourse’. In van Dijk T. (ed.) Discourse as Structure and Process , Thousand Oaks, Sage, pp. 1– 34. Walker C. ( 2011) Terrorism and the Law , Oxford, Oxford University Press. Walker C. ( 2013) ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’, Melbourne University Law Review , 37, 143– 188. Willis J. ( 2007) Foundations of Qualitative Research , Thousand Oaks, Sage. © The Author 2017. Published by Oxford University Press on behalf of the Hansard Society; all rights reserved. For Permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Parliamentary Affairs Oxford University Press

Incitement to Hatred and Countering Terrorism: Policy Confusion in the UK and Australia

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Abstract

Abstract In the UK and Australia, the use of the term ‘hate preachers’ to describe jihadist extremist speakers has become common. In this article, I argue this term is confused, and that the contemporary cause of this confusion lies in new incitement to religious and racial hatred provisions enacted in 2006 and 2010, respectively. To date, scholarly analysis of these provisions has suggested that their primary purpose is to protect vulnerable communities. Analysing the context and justifying discourse of key policymakers during debates, I argue by contrast that their primary purpose is as a counter-terrorism measure, and that both the public debate and the provisions themselves evince and entrench an enduring epistemic confusion. The term ‘hate preachers’ to describe anti-Western terrorist extremist preachers has become common in many Western countries, including the UK and Australia. It is used as shorthand to describe jihadist extremists who encourage or incite others to commit terrorist acts. For example, in August 2016, UK Prime Minister Theresa May announced new plans to combat extremism by ‘hate preachers’ (The Telegraph, 2016). In Australia, Immigration Minister Peter Dutton stated in June 2016 that ‘we won’t tolerate people who are preaching hate in our country’ (ABC News Radio, 2016). In August 2016, former Australian Prime Minister Tony Abbott stated that he had abandoned an unsuccessful 2014 attempt to reform federal racial hatred laws due, in part, to the fact that he was ‘seeking ways to limit jihadi hate preachers’ (Sydney Morning Herald, 2016, p. 3). The term ‘hate preachers’ sends an implicit message in public debate—that the phenomenon of jihadist extremist preaching is very like the phenomenon of hate speech, and that therefore policy designed to address one can also be used to address the other. Utilising the term ‘hate’, which is well known in ‘hate speech’ policy, suggests that the ‘hatred’ at stake in terrorist extremist speech is the same as the ‘hatred’ at stake in other types of hate speech, such as racial hatred, religious hatred or hatred on the ground of sexuality. This assumption, however, is highly contestable. The persistence of the use of this term in public debate in both countries, therefore, warrants examination. In this article, I argue that the two phenomena of jihadist extremist speech and hate speech are distinct and ought not to be treated alike in policy. I argue further that the roots of the contemporary idea that they ought to be treated in the same way in public policy in the UK and Australia lie in the introduction of new incitement to hatred provisions in those countries in 2006 and 2010, respectively, and that these provisions reflect the confusion with which I am concerned. Finally, in contrast to the secondary literature to date, I suggest that the counter-terrorism context in which the new incitement to hatred provisions were introduced, and the policymakers’ discourse around their introduction, mean they are best understood as components of counter-terrorism policy rather than as policy designed to protect the vulnerable. The article proceeds as follows. First, I recount (briefly) an argument I have made elsewhere (Gelber, 2009) in support of the view that hatred expressed against the vulnerable is epistemically distinct from anti-Western extremist speech. Secondly, I outline the provisions as introduced. Thirdly, I review the secondary literature to show that in it, discussion of the rationales for these policies has emphasised their role in protecting vulnerable communities from harm. As part of this discussion, I show that where there has been discussion of a counter-terrorism rationale, this has been brief and demonstrates the epistemic confusion with which I am concerned. Fourthly, I move to examine primary sources on the context in which the provisions were introduced and enacted to show both that a counter-terrorism rationale was core to their introduction, and that the debate evidenced epistemic confusion. I conclude by drawing out the implications of this confusion for the likely efficacy of the provisions. I adopt a comparative, historical case study1 method that analyses these two countries’ policies and justifications. Case studies allow a depth that is not possible using other research methods (Willis, 2007, p. 240). The comparative case study approach is particularly apt in relation to ‘social research about practice and policy’, and research that reflects on how ‘policy profoundly shapes our view of the world’ (Bartlett and Vavrus, 2017, pp. 1–2). The UK and Australia were chosen on the basis of a ‘most similar’ research design (Barasko et al., 2014, p. 179) because they have Westminster systems of government, have similar legal systems, share a commitment to policies that counter racial and religious hatred and both introduced new incitement to hatred provisions in a period of intense counter-terrorism policymaking that occurred after significant terrorist events. They are also close allies who have cooperated closely on the development of new counter-terrorism measures since 2001 (Walker, 2013), and who share counter-terrorism intelligence (Roach, 2011, p. 18; Lyon, 2015, pp. 8, 38). 1. Two phenomena The most common arena within which ‘hatred’ has become a normalised component of public policy is in relation to ‘hate speech’. Hate speech policy is designed to enhance social cohesion by providing protection to vulnerable communities from speech which is regarded as harmful, and which to that extent falls outside the boundaries of acceptable expression in a liberal democratic society. The range of conduct defined as hate speech in law is wide indeed (Brown, 2015, pp. 19–38). Nevertheless, some core characteristics can be agreed upon.2 Hate speech is speech ‘directed against a specified or easily identifiable individual … based on an arbitrary and normatively irrelevant feature’ associated with historically identifiable, systemic discrimination, that ‘stigmatizes the target group’ and views them ‘as an undesirable presence’ (amending Parekh, 2012, pp. 40–41). It is ‘speech or expression which is capable of instilling or inciting hatred of, or prejudice towards, a person or group of people on a specific ground’ (Gelber and Stone, 2007, p. xiii). It is, therefore, speech that harms identified targets, and the groups to which those targets are perceived to belong, by ascribing discriminatory stereotypes to all perceived members of that community. This means hate speech does more than offend its targets; it harms them in tangible ways by enacting discrimination through expression (Barendt, 2005a, pp. 171, 174–175; O’Neill et al., 2004, p. 519). Critical to the capacity of hate speech to inflict a sufficient harm to warrant a policy response (as opposed to merely offence or hurt feelings) is that it takes place in a context in which the targets are people (or groups of people) who characteristically face prejudice, such as racial or sexuality-based minorities. This is not to imply that non-minority individuals might not attempt to use hate speech laws to their benefit; indeed there is some evidence that they try to do so, although with limited success (McNamara, 2002, pp. 148–150; Gelber, 2000, p. 16). But it is to say that phenomenologically there is an intrinsic relationship between the prejudice that a hate speaker expresses towards the identity of the community to which they perceive their target to belong, the nature of that target group, and the ability to characterise their utterance as harmful hate speech.3 Much of the contemporary phenomenon of jihadist extremist hatred against innocent Westerners stands in contrast to this. Jihadist extremism does not typically target groups that systemically have faced marginalisation in Western societies. This is not to say that such targeting never occurs in the context of extremism—some right-wing extremists (such as David Copeland, who carried out nail bombings in London against black targets in 1999) have been inspired by right-wing extremist tracts, and countering this kind of extremism ‘may provide a key justification for the regulation of the most provocative racist material’ (Rumney, 2003, p. 143). This kind of extremist threat remains extant. However, it is not the focus of the ‘hate preacher’ discourse we hear in public debate today. The nomenclature of ‘hate preachers’ is reserved for the component of the terrorism threat that is based on an anti-Western ideology. This ideology, while it is virulent in encouraging and inciting hatred against innocent targets in the West, nevertheless arguably requires a different explanatory framework than what we traditionally understand as ‘hate speech’, since it is not directed at marginalised minorities, but rather at those perceived to be mainstream ‘Westerners’. Deloughery et al. support this view, arguing that hate crimes and terrorism ought to be ‘treated as distinct conduct for both theoretical and analytic purposes’, and that acts of terrorism tend to increase hate crimes against vulnerable communities (2012, pp. 680–681). The need to disaggregate the two was also acknowledged in the 4 May 2016 adoption by the international community of the Joint Declaration on Freedom of Expression and countering violent extremism, which cautioned that ‘under the umbrella of countering violent extremism and preventing violent extremism’ some political leaders had made statements ‘encouraging or promoting discrimination against minorities’.4 This suggested that countering violent extremism ought not to be a guise under which political leaders could simultaneously engage in hate speech. The incitement of hatred against vulnerable minorities in Western societies, and the incitement of violence against innocent Westerners, then, are not synonymous. So why are we seeing the use of the term, ‘hate preachers’, which treats them as though they are? 2. The new incitement to hatred provisions In the UK, a new incitement to religious hatred provision was enacted in 2006, although there had been attempts to introduce one since 2001 (Bleich, 2011, p. 23).5 The Racial and Religious Hatred Act 2006 introduced a new offence of inciting religious hatred into the Public Order Act (Pt 3A) (Ekaratne, 2010, p. 212; Brown, 2008, p. 3; Cumper, 2006, pp. 254–255; Goodall, 2009, pp. 90–91). It stated, A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatredand that A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred.There are additional provisions for publicly performing a play, distributing, showing or playing a recording, or broadcasting a programme which is threatening, and where the performer, distributor or broadcaster intends to stir up religious hatred.6 The enacted offence also contains a wide-ranging exemption that states it should not be understood in a way that ‘prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or proselytising’.7 This sets a higher bar for the offence of inciting religious hatred than the pre-existing offence of racial hatred on which it was initially modelled (Nash and Bakalis, 2007, pp. 350–352), because the incitement of religious hatred requires threatening conduct (whereas the incitement of racial hatred can occur in relation to threatening, abusive or insulting conduct), and intent is required (McNamara, 2007, p. 171; Cumper, 2006, pp. 254–255; Goodall, 2007, p. 90; Hare, 2006, p. 524). The exemptions, higher bar and requirement of intent were introduced in response to the considerable parliamentary and community opposition, on free speech grounds, that mobilised in response to the proposal (Bleich, 2011, p. 25; Brown, 2008, pp. 3–4; Cumper, 2006, p. 255; Hare, 2006, p. 524; Barendt, 2011, pp. 42–43). In Australia policy reform that began in 2005 eventually resulted in an incitement to hatred provision being introduced in 2010. In 2005 the Australian government, in the context of its broader counter-terrorism response to the London bombings, revived the concept of ‘sedition’. One sedition provision criminalised the urging of violence against a group or groups distinguished by race, religion, nationality or political opinion, where the force or violence threatened the government (Meagher, 2006, p. 290; Saul, 2005, p. 876).8 An exemption was included for attempting, in good faith, to change law or policy, fair reporting and industrial disputes. This is clearly not a straightforward religious (or other ground) incitement of hatred offence because the grounds on which it relied included political opinion, which is normally not a category in hate speech statutes, and because it connects the urging of violence to a threat to the government, which is why it was posited as a sedition offence. I have critiqued the contradictory rationales for this offence elsewhere (Gelber, 2009). In 2010, these sedition offences were amended by being renamed ‘urging violence’ offences, and by adding a requirement of intent that force or violence will occur. They were disaggregated into four new offences: two retained a connection between the urging of violence against groups, or members of groups, and a threat to government (Gelber, 2016, p. 91). Two new incitement to hatred offences were created, which state that a person commits a criminal offence if, the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); the first person does so intending that force or violence will occur; and the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.9 or if the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); the first person does so intending that force or violence will occur; the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.10A defence to both provisions applies for acts done in good faith to, among other things, point out defects in law or policy, pointing out matters that produce feelings of ill-will between groups in order to remove those matters, industrial disputes, or reporting on matters of public interest.11 In both countries, then, provisions were introduced that prohibit incitement to hatred on grounds normally utilised in hate speech law, that is, religion in the UK, and race and religion in Australia. Both countries have enacted exemptions to those laws designed to protect freedom of speech, although the exemptions in the UK are specific to the ground of religion, whereas those in Australia are more widely applicable to a range of political speech. They permit similar maximum penalties—seven years imprisonment in the UK,12 and five years13 imprisonment in Australia. 3. Rationales in the secondary literature A review of the secondary, scholarly literature on these policies suggests they were justified in both countries by a rationale of protecting vulnerable communities; in other words, that their central purpose is genuinely as a measure to combat racial and religious hatred qua hate speech. The three most common rationales suggested are that the laws: (i) remedy pre-existing gaps in coverage of the law relating to hate speech; (ii) were a response to increases in anti-Muslim hate speech after the 2001 terrorist attacks; and (iii) were needed as a counterpoint to the fact that counter-terrorism policy was impacting disproportionately on the Muslim community. 3.1 Coverage The provisions in the UK were argued to be a response to gaps in the laws’ coverage that did not provide protection to followers of all religions equally. There were three ways this occurred. First, the pre-existing racial hatred provisions in the Public Order Act had been interpreted to mean some religious identities were covered but others were not. Where a case could be made that a religious identity was also an ethnic identity; in other words, that a faith was mono-ethnic (Goodall, 2007, pp. 93, 96, 98; Goodall, 2009, p. 225; Nash and Bakalis, 2007, pp. 351–352), the incitement of hatred against that group has been actionable as incitement of racial hatred. This meant that instances of hatred against Jews and Sikhs have been covered by racial hatred provisions, whereas those against Muslims, Hindus and other multi-ethnic faiths have not. Clearly, determining some faiths as mono-ethnic and others as not is problematic on empirical grounds. Nevertheless, this problem in the application of pre-existing incitement to racial hatred provisions gained significant traction in the public debate (Hare, 2006, p. 525; Ekaratne, 2010, p. 24; Thompson, 2012, p. 216; Barendt, 2005b, p. 895), with ‘pressure brought to bear on government by Muslim organizations that campaigned vigorously’ on this ground (Cumper, 2006, pp. 253–254). Moreover, some claimed that hate speakers such as the British National Party were aware of, and exploiting, this gap in the law by tailoring their discourse to avoid direct reference to racial identities (Nash and Bakalis, 2007, p. 356; Jeremy, 2007, p. 197; Goodall, 2007, p. 94). In Australia, this same gap exists in relation to national racial hatred laws and in the states and Territory in which religion is not an explicit ground for protection under such laws (Evans, 2012, pp. 171–176). The same debate has occurred over the application of racial vilification provisions to protect some ethno-religious identities, such as Jews and Sikhs, but not others including Muslims (Evans, 2012, pp. 65–67; Gelber, 2011, pp. 100–101). However, this was not an explicit component of the public debate over the introduction of sedition laws in 2005, or the creation of the incitement offences in 2010. Secondly, a common law blasphemy provision extant at the time in the UK granted protection to Anglican Christians but did not protect other Christian denominations, or other faiths (Nash and Bakalis, 2007, pp. 352, 360–364; Hare, 2006, p. 525; Cumper, 2006, p. 2532; Brown, 2008, p. 2). This argument is not entirely straightforward since the offence of blasphemy had been interpreted in diverse ways in the courts (Jeremy, 2007, p. 193). In any case, in 2008 UK blasphemy laws were abolished (House of Commons, 2008). The same problem applies in Australia with blasphemy remaining an extant offence in some states,14 and raising the same issues of coverage (Pringle, 2011, p. 322). Thirdly, other provisions can be, and have been, used to prosecute the conduct captured by the new incitement to hatred offences. In the UK, possible alternatives include glorifying or encouraging terrorism, inciting terrorism or soliciting murder (Ekaratne, 2010, pp. 213–214), religiously aggravated abuse or violence, criminal harassment, incitement to crime or aggravated breach of the peace, as well as penalty enhancements if an offender is seen to be motivated by religious (or other) bigotry (Bleich, 2011, p. 26; Goodall, 2007, pp. 91–93). There is also an extant public order offence of engaging in conduct that is threatening, abusive or insulting that is likely to cause harassment, alarm or distress. Existing law therefore covered incitement to religious hatred in all but name (Bleich, 2011, p. 26) and some questioned whether the gap in this respect was genuine, or a problem not with the law but with its enforcement (Goodall, 2007, pp. 92–94). In Australia, the same argument was made during debate over the introduction of the 2005 provisions; that they were unnecessary because other laws existed that could be used to prosecute this kind of conduct including incitement to commit a crime, criminal harassment and aggravated offences (Chong et al., 2005). Since the incitement to hatred offence was introduced as a hatred offence in the United Kingdom and not, as in Australia, under the aegis of sedition, arguments about coverage predominate in the literature on the UK. In relation to Australia, there is much less explicit consideration of the question of coverage, although the same arguments can be made in relation to law pre-existing the introduction of the incitement to hatred provisions. 3.2 An increase in anti-Muslim hate speech The second rationale posited in the literature is that the provisions give protection to a community facing increased hate speech after the 2001 terrorist attacks. In the UK, this rationale was explicitly connected to the new provision in public debates spanning a number of years (Bleich, 2010, pp. 70, 79; Cumper, 2006, p. 253; Nash and Bakalis, 2007, pp. 352, 356, 365; Thompson, 2012, p. 216; Rumney, 2003, p. 138; Walker, 2011, p. 382). In Australia, numerous community and academic reports noted ongoing abuse and hatred towards Muslims, with a concomitant recognition that the 2001, and later, terrorist attacks had led to an increase in such activities (Cahil et al., 2004, pp. 79, 81, 84–85, 90; Dunn et al., 2007, pp. 568, 570; Dreher, 2005; Briskman, 2015).15 Muslim community members interviewed for an empirical study into hate speech supported these findings (Gelber and McNamara, 2015, p. 645). A parliamentary inquiry into the draft legislation that introduced the 2005 provisions also explicitly raised this concern, based on submissions made to it by human rights authorities and community organisations (PJCIS, 2006, pp. 23–24). 3.3 The disproportionate impact of counter-terrorism policy on the Muslim community A third rationale in the literature is that incitement to hatred provisions were introduced to ameliorate the disproportionate impact of the enforcement of counter-terrorism policy on the Muslim community (Walker, 2011, p. 382). In both countries, counter-terrorism laws were written in facially neutral ways. In both countries, it was recognised as unhelpful to the agenda of countering violent extremism to treat all members of the Muslim community as potential terrorists, and necessary to involve the Muslim community in counter-terrorism efforts. Thus, in the UK and other European countries, Bleich argues that anti-violence policies adopted as part of the counter-terrorism framework deliberately avoided explicit mention of Islam (Bleich, 2010, pp. 67, 70, 72). Yet at the same time the Muslim community was disproportionately affected by policies such as increased surveillance, tracking and scrutiny (Bleich, 2011, p. 26; Bleich, 2010, pp. 69–71). In this context, the new religious incitement provision was ‘meant to show that the state is not just listening but also acting upon Muslim concerns’ (Bleich, 2010, p. 79.). Other commentators also recognised the disproportionate impact of counter-terrorism policy on Muslim communities (Nash and Bakalis, 2007, p. 365; Brown, 2008, p. 3), and of the symbolic importance of the law in response to those concerns (Cumper, 2006, p. 249). In Australia, governments also presented counter-terrorism policy in facially neutral terms. Yet it was also documented that counter-terrorism policy enforcement was impacting disproportionately on the Muslim community, who reported to a parliamentary inquiry that they ‘feel under greater surveillance and suspicion’ and were becoming increasingly alienated (PJCIS, 2006, pp. 23–38; see also Michalis, 2009; Spalek, 2010; Islamic Council of New South Wales, 2004). These three rationales, then, were extant in both countries. In the UK, the incitement to religious hatred law was explicitly considered to be a remedy for gaps in the law’s protection, a response to anti-Muslim attacks, and a response to the disproportionate impact of counter-terrorism policy on the Muslim community. In Australia, the provision that developed into incitement to religious and racial (and other) hatred laws in 2010 was enacted in the context of a recognised increase in anti-Muslim hate speech, and the disproportionate impact of counter-terrorism policy on the Muslim community. In both countries, therefore, the secondary literature suggests that the provisions were primarily designed to protect vulnerable communities from harm. 3.4 A counter-terrorism rationale? What has been made in the secondary literature of the possibility of a counter-terrorism rationale? I have suggested that this argument is brief; where I draw below from secondary sources I am emphasising a small component some of those authors’ arguments. I show that the literature exhibits a confusion in suggesting that the provisions are capable of capturing both phenomena—that of inciting hatred against marginalised minorities, and that of inciting hatred against innocent ‘Westerners’. Scholarly recognition of the counter-terrorism rationale has included that, in the UK the incitement to religious hatred provision was noted—very briefly—to be capable of targeting the kinds of incitement to religious hatred that might be engaged in by radical Islamic preachers including, ‘radical Muslim clerics … [who] stir up hatred against Christians and Jews’ (Brown, 2008, p. 2). This view argues that the incitement provision might in practice be used to target radical Muslim extremists who could contribute to an atmosphere in which people might be encouraged to be involved in terrorism, instead of being used exclusively to target incitement to religious hatred per se. Hare also suggested that the law might be used more frequently against radical Muslim preachers than against other speakers engaging in religious hatred (2006, p. 533).16 Brown suggested that the Blair government in proposing a religious hatred offence, among other things, wished to ‘eliminate the sort of climate of hatred which … might give rise to suicide bombers’ (2008, p. 3). Countervailingly, Goodall argued that, ‘terrorism and religious debate should not be carelessly compared’ (2007, p. 109). In the literature on the Australian provisions, Saul argued that the 2005 sedition provision ‘falsely stigmatizes group-based violence as terroristic’ and that ‘collapsing these categories [of group-based violence and terrorism] can only reinforce the stereotyping of certain ethnicities or religions as terrorists’ (Saul, 2005, p. 877). Meagher described the 2005 sedition provision was a type of ‘racial vilification and sedition law’, which was a seriously flawed ‘seditious form of group racial incitement’ (Meagher, 2006, pp. 290, 300). Both these analyses occurred shortly after the 2005 sedition laws were introduced, and with the exception of my own contribution questioning the coherence of the provisions (Gelber, 2009) no further scholarly analysis of the Australian provisions has occurred.17 There has, then, been very brief recognition of the existence of a counter-terrorism rationale in the scholarly literature. This has occurred first, in a recognition of the dual purpose of the provisions, which conflate preventing the incitement of hatred against marginalised communities with preventing terrorist extremism. Secondly, there has been criticism of the connection between the two types of speech. However, this criticism did not occur on epistemic grounds, but instead in the more limited sense of critiquing the treatment of racist violence as terroristic violence. Additionally, none of these contributions suggests that the provisions are core components of the counter-terrorism apparatus of the UK and Australia. 4. Counter-terrorism policymaking In this section, I provide evidence to corroborate my argument that the counter-terrorism rationale is far more important than has been recognised to date, and that epistemic confusion existed in the policy debate. I focus both on the policy context within which the incitement to hatred provisions were introduced, and the discourse of policymakers at the times they were proposed, debated and introduced. In both the UK and Australia the terrorist events of September 2001 and July 2005 led to a flurry of counter-terrorism policymaking (Barendt, 2005b; Cole, 2003; Gearty, 2013; Gelber, 2016, pp. 56–62; Roach, 2011, pp. 238–360; Smith, 2007; Scheinin, 2010; Walker, 2011). An important component of this counter-terrorist lawmaking in both countries was a desire to devise policy that would enable the government to intervene against, and prevent, the indirect enablers of violent extremism. The kinds of policies enacted to try to address the indirect enablers of violent extremism included in the UK, criminalising the encouragement of terrorism, banning organisations that encourage or glorify terrorism, and banning displaying clothing or articles that symbolise prohibited groups.18 Control orders were introduced for people who encouraged terrorism,19 and publications that encourage terrorism were banned.20 In Australia, similar measures included banning organisations that advocate terrorism,21 banning terrorist-related publications,22 and criminalising the advocacy of terrorism.23 Policymakers were explicit about their desire to establish new laws that would allow them to prevent terrorist radicalisation at much earlier stages than the planning or commission of a terrorist act. In the UK, Home Secretary John Reid stated in 2006 that he was, ‘determined to act against those who, while not directly involved in committing acts of terrorism, provide support for and make statements that glorify, celebrate and exalt the atrocities of terrorist groups’ (cited in Bleich, 2010, p. 74). In Australia, Prime Minister John Howard stated in 2005 that, ‘there is a concern in the Australian community … [that] there are some who do encourage violence and hatred, and there are some who do give comfort and aid and encouragement and succour to terrorism’ (Howard, 2005a) and that the government needed to be able to prevent that.24 As I will show below, this context provided an environment within which incitement to hatred provisions came to be seen, and justified, as part and parcel of the broader counter-terrorism policy agenda. Analysis of public debates attests to suggestions that the incitement to hatred provisions could also be mobilised to service a policy mandate to combat terrorist extremist speech. The quotations below are representative of the public discourse in national security speeches, statements and press conferences by the Prime Ministers, Attorneys-General and Home Secretaries in the UK and Australia between September 2001 and September 2011.25 In the UK, political leaders linked racist and religious hatred and extremist terrorist speech very soon after 9/11. On 15 October 2001, Home Secretary David Blunkett’s statement to the House of Commons on steps the government intended to take to counter-terrorism said, there are those who are prepared to exploit the tensions created by the global threat. Racists, bigots, and hotheads, as well as those associating with terrorists, are prepared to use the opportunity to stir up hate. It is therefore my intention to introduce new laws to ensure that incitement to religious, as well as racial, hatred will become a criminal offence. Fair comment is not at risk, only the incitement to hate … justice for the majority and the security of our nation will be secured (2001a).He directly connected the need to protect some members of the community against religious hatred with the need to protect the community as a whole against terrorist threats. In justifying an unsuccessful attempt to introduce a religious hatred offence weeks later, he stated that he hoped, ‘that the provision will protect all those who have deeply held religious beliefs from having that faith used to incite hatred against them’, while at the same time giving ‘public reassurance and calm in our communities following the hatred and associated dangers arising from the events of 11 September’ (Blunkett, 2001b). In the House of Commons debate around a proposal to introduce an incitement to hatred law in 2001, then Home Secretary David Blunkett stated that introducing a religious hatred provision was done ‘to try and meet genuine concerns at a time when reassurance and increased security and surveillance were judged to be necessary’ (2001c, pp. 1113–1114, cited in Hare, 2006, p. 523), thereby connecting reassuring the Muslim community with counter-terrorism policy. In 2005, Prime Minister Tony Blair stated that, ‘time and again over the past few weeks I’ve been asked to deal firmly with those prepared to engage in … extremism’. He announced that the government was developing a ‘comprehensive framework for action in dealing with the terrorist threat’ that was to include the addition of ‘fostering hatred, advocating violence … or justifying such violence’ as grounds for deportation, adding that people who tried to ‘incite hatred or engage in violence against our country’ had no place in the UK (Blair, 2005). The treatment of religious hatred and extremism as analogous was marked. In a later statement on national security to the House of Commons, Prime Minister Gordon Brown continued this close discursive positioning of racial and religious hatred, and terrorist extremism. He talked about new ‘dedicated regional counter-terrorism units’ which were ‘responsible for overseeing investigations into those who recruit terrorists and promote hate’, and of the need to ‘disrupt the promoters of violent extremism [and] … to counter online incitement to hatred’ (2007). After the election of the Cameron government in 2010, then Home Secretary Theresa May signalled that she was aware of problems with this juxtaposition, saying the previous government had ‘muddled up work on counterterrorism with the normal work that needs to be done to promote community cohesion’ (2010). Six months later she reiterated the problem, saying the previous government had, ‘confused government policy to promote integration, with government policy to prevent terrorism’ (May, 2011). However, her Prime Minister continued to warn against ‘preachers of hate’, meaning terrorist extremists (for example, BBC News, 2008). In Australia, a connection between racial and religious hatred and terrorist extremist speech also emerged immediately after 9/11. In October 2001, the then Prime Minister John Howard was pressed in an interview on the question of whether Australia should introduce laws preventing terrorist propaganda, and he responded that although such a law would raise free speech concerns, a line was crossed when people incited violence. He added, ‘the difference between inciting violence and inciting hatred is very blurred’ (2001). When the sedition laws were created in 2005, Prime Minister Howard wavered in this view, saying, ‘I do not think religious and racial vilification laws work, and we as a party have opposed them in the past … you can’t graft racial vilification laws into the law relating to sedition’ (2005b). However, his Attorney General Phillip Ruddock contradicted him by stating that introducing such a law would constitute ‘in part implementation of Article 20 of the ICCPR which requires State Parties to prohibit advocacy that incites violence, discrimination or hostility’ (Ruddock, 2005a, cited in SLCLC 2005). Ruddock conceded that the new offences criminalised incitement to hatred when he stated that the new sedition offence would, ‘address problems with those who incite directly against other groups in our community’ (2005b repeated in Ruddock, 2005c). One year after the 2005 sedition laws were introduced, and during a review of those laws undertaken by the Australian Law Reform Commission, the Attorney General made a submission that claimed there was a ‘common theme between sedition and terrorism offences, that being, violence between racial groups’ (Ruddock, 2006, p. 3). In 2009, in a very similar manner to what had happened after a change of government in the UK, a new federal Labor government seemed to become aware of this confusion when it embarked on a ‘Lexicon of Terrorism’ project which cautioned against the counter-productive use of certain words that, ‘can cause anxiety among Australians and create divisions’ in the community, and encouraged words that were ‘conscious of not alienating broad ethnic and religious groups by labelling them in a way that causes prejudice or leads to misunderstanding’ (McClelland, 2009a). However, again in a manner similar to the UK, this was later contradicted. When the amendments that created the incitement to hatred provisions were being considered, Attorney General Robert McClelland stated that ‘countering violent extremism’ was a top priority of the government, and that doing so required both security responses and measures to enhance social cohesion. He stated that it was in this context that the government was planning to implement a new offence of, inciting violence against an individual on the basis of race, religion or nationality … this would expand the opportunity for prosecuting those who attempt to induce others, including vulnerable youths, to commit acts of politically motivated violence (2009b).In justifying the creation of the incitement to hatred offences, he elided incitement to racial and religious hatred and incitement to terrorist extremism, in the same way as had occurred in the UK. When the proposal to create the incitement to racial and religious hatred provision was put to the parliament in March 2010, the Attorney General reiterated the need for an ‘effective legal framework’ that is ‘suited to the achievement of a just and secure society’ (McClelland, 2010), the same colocation of social cohesion and counter-terrorism measures as had occurred in the UK. Interestingly, the difficulty of analogising the protection of marginalised minorities with combatting extremist terrorist speech was recognised by a very small number of policymakers in public debates, but these actors’ views did not achieve significant traction. In the UK, in response to the unsuccessful 2001 attempt to introduce a religious hatred law in the Anti-Terrorism, Crime and Security Act, some members of the House of Lords objected to the proposal (Hare, 2006, p. 523). Sir Oliver Letwin in the House of Commons opined that ‘there was never a place’ in a ‘Bill about terrorism’ for ‘a clause on incitement to religious hatred’ (2001). This view did not prevail. For example, Labour MP Frank Dobson stated his support for outlawing discrimination on the ground of religious beliefs, and said he supported the government’s proposal ‘even though it was included in a Bill that relates to terrorism’ (2001). In Australia, Prime Minister John Howard opined that, ‘you can’t graft racial vilification laws into the law relating to sedition’ (2005b) while legislating to do just that. 5. Conclusion The evidence substantiates my argument that the incitement of hatred against the systemically vulnerable and against Westerners were treated in policy debate as epistemically synonymous, and that the scholarly literature has not recognised this problem to date. It also supports my argument that the counter-terrorism rationale ought to be given far greater emphasis in our understanding of the incitement to hatred provisions in both the UK and Australia than has occurred in the literature to date. One effect of this confused policymaking is that, in public debate today, all incitement to ‘hatred’ is treated synonymously. ‘Hatred’ is viewed as the central defining element of harmful speech, although this does not accord with the literature on how and why it is that hate speech can harm. Hate speech against minorities is treated as the same policy puzzle and in the same policy framework as terrorist speech against ‘Westerners’. One of the reasons this occurred is almost certainly because it was useful to policymakers at the time to draw on the extant public support for laws prohibiting racial hatred, and in doing so to harness civil society support for the prevention of racial and religious hatred, in order to justify new and controversial counter-terrorism measures. However, in light of the argument that the two phenomena are epistemically distinct, the fact that this happened raises serious questions about the likely efficacy of these policies in achieving either, let alone both, of these policy objectives. Footnotes 1 Case study is an ‘approach that uses in-depth investigation of one or more examples of a current social phenomenon, utilizing a variety of sources of data’ (Keddie, 2006, pp. 41–42). Case studies ‘illuminate the reader’s understanding of the phenomenon under study. They can bring about the discovery of new meaning, extend the reader’s experience, or confirm what is known’ (Merriam, 1998, p. 13, cited in Willis, 2007, p. 239). 2 My purpose here is not to define as controversial an idea as ‘hate speech’ in an immutable manner, but rather to explore conceptually the nature of expressions that can be characterised in this way. 3 This is why I do not, in principle, support the use of the term ‘hate’ to categorise ‘hate speech’. It implies that any expression of antipathy or dislike towards any target is substantively the core of the phenomenon. By contrast, ‘hate speech’ is better understood as a discursive act of harm in the sense of an act of exclusion, marginalisation and discrimination targeted at those able to be identified as systemically vulnerable within the context in which the speech occurs (Gelber, forthcoming). 4 Accessed at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19915&LangID=E on 10 April 2017. 5 For example, as a component of the Anti-Terrorism Crime and Security Bill 2001; a component of the Serious Organised Crime and Police Bill 2004, and the topic of a Select Committee report on Religious Offences in England and Wales (2002–2003) HL95-1, 10 April 2003 which failed to reach agreement (Ekaratne, 2010, p. 212; Hare, 2006, pp. 523–524; Bleich, 2011, pp. 23–25). 6 Racial and Religious Hatred Act 2006 (UK), ss 29B(1), 29C(1), 29D(1), 29E(1), 29F(1). 7 Racial and Religious Hatred Act 2006 (UK), s 29J. 8 Anti-Terrorism Act (No. 2) 2005, amending the Criminal Code, s 80.2(5). 9 Criminal Code (Cth), s 80.2A(2). 10 Criminal Code (Cth), s 80.2B(2). 11 Criminal Code (Cth), s 80.3. 12 Racial and Religious Hatred Act 2006 (UK), s 29L. 13 Criminal Code (Cth), ss 80.2A(2), 80.2B(2). 14 The only successful use of the provision was in 1871, but the last attempt to use it was in 1998 (Pringle, 2011, pp. 318–320). 15 See also the special issue in which Brinkman (2015) is published, ‘Islamophobia and Crime – Anti-Muslim Demonising and Racialised Targetting’. 16 This prediction has proved incorrect—there have been two successful prosecutions under the UK provision. One was a 2011 conviction of G. Bilal Ahmad on a range of terrorism offences, an offence of soliciting to murder, and an offence of publishing written material with intent to stir up religious hatred. He had engaged in discussion online about a college that had prohibited Muslim students from wearing headscarves, and described Hindus in ways that vilified and incited violence against them (CPS, 2011). The second was a 2015 conviction of three Sikh men (Satinderbir Singh, Harjinder Singh Athwal and Damanpreet Singh ) who engaged in an online discussion alleging risks to Sikh women who dated Muslim men. This conviction also took place in the context of other violent offences including conspiracy to commit, and occasioning, bodily harm (CPS, 2016). 17 There have been no prosecutions to date under the Australian provisions. The reasons for this are complex and myriad, and beyond the scope of this article’s remit to explore. 18 Terrorism Act 2000, ss 11, 12, 13; Terrorism Act 2006 Cl. 21. 19 Prevention of Terrorism Act 2005, s 1(9); Terrorism Prevention and Investigation Measures Act 2011, s 4. 20 Terrorism Act 2006, s 2; Counter-Terrorism Act 2008, s 2(1). 21 Anti-Terrorism Act (No. 2) 2005; National Security Legislation Amendment Act 2010, Sch. 2; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. 22 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007; National Security Legislation Amendment Act 2010, Sch. 2. 23 Counter-Terrorism Legislation Amendment (Foreign Fighters Act) 2014. 24 This is recognised in the scholarly literature. Bleich, for example, cites Saggar (2009) in emphasising how counter-terrorism policy in the UK targeted the ‘circle of tacit support’ around terrorists that ‘helps to enable the perpetrators to carry out their acts’ (2010, p. 69). Bronitt and Stellios point to the Australian government’s shift to a focus on the perceived ‘root causes’ of terrorism (2006, p. 924). 25 A qualitative analysis of these texts was undertaken as a type of discourse analysis that sought to categorise language use. The political elites were chosen as the site for the study due to their authority in public discourse, especially their authority in justifying the chosen policy responses (Breuning, 2011, p. 492; Van Dijk, 1997, p. 2; Chilton and Schäffner, 1997, p. 211). UK PM n = 599, UK HS n = 193, Aust PM n = 701, Aust AG n = 426. For the full study, see (Gelber, 2016). 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