The 24th of May marked the first anniversary of the introduction of Japan’s anti-hate speech law. Anti-discrimination laws are a current topic of interest in Japan’s trade-partner and regional ally, Australia. Despite the Australian law being over forty years older, it is clear that similar trends, issues, and points of debate arise in both jurisdictions. This article examines the anti-discrimination laws of Australia and Japan by comparing their operation, historical origins, and the current debate surrounding them.
The Laws: Scope and Operation
Although both nations’ laws can be classified as anti-discrimination laws, there are some stark differences in their operation and scope. The Australian Racial Discrimination Act 1975 (RDA) is broad and provides an effective process for people who want to make a complaint. Japan’s Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior Against Persons Originating from Outside Japan (The Anti-Discriminatory Speech Act or ADSA) however is more of a symbolic gesture than a legislative sanction on hate speech.
Australia's Racial Discrimination Act
In Australia, the RDA makes acts of racial discrimination unlawful. Section 18C prohibits public actions that are likely to offend, insult, humiliate, or intimidate others based on their race, colour, nationality, or ethnic origin. The RDA also includes exceptions where actions that would usually be considered discriminatory under this law will be exempt, such as actions said or done as part of a performance, exhibition, or distribution of artistic work; or within the course of academic, scientific, or artistic academic debate; or genuine purposes for the public interest.
Although the legislation deems racial discrimination unlawful, it is not a criminal offence. Affected persons make a complaint through the Australian Human Rights Commission, which can investigate the complaint and try to resolve it by conciliation. Therefore, these complaints are not matters for Australian courts to decide; rather it is a process where both sides of the story are gathered and parties work together to resolve the complaint. If, after this stage, the matter has not been resolved, the complaint may be taken to Australia’s Federal Court (though this accounts for less than 5 percent of cases).
Japan’s Anti-Discriminatory Speech Act
In Japan, the Diet (Parliament) introduced the ADSA in May 2016, coming into effect in June. The ADSA declares unfair, discriminatory speech and behavior against people legally living in Japan, but whose ancestors were from outside Japan, intolerable. Examples provided in the ADSA include openly speaking in a manner that harms the life, person, freedom, reputation, or property of such individuals as well as insults which have the objective of encouraging or inducing discriminatory feelings (Article 2). The ADSA does not have provisions for punishment, but it obliges local governments to implement hate speech elimination measures and respond to requests of victims for consultation (Articles 4 and 5). For example, in Osaka, the implementation of the law through a city ordinance required that any complaint filed be reviewed by a fivemember Auxillary Council. Based on the views of the Council, the Mayor makes a decision as to whether to disclose the individual’s names on their website as having engaged in hate-speech activities.
Context of Their Introduction
The contexts in which these laws were introduced into their respective societies are different, yet they have some important parallels. Both stem from a long history of race-based politics in the nation, widespread dissatisfaction with the lack of protection in the law prior to the legislation being introduced, and calls from the international community to eliminate discrimination.
Australian Context
In the Australian context, two major factors prompted the introduction of the RDA.
(a) Cultural Shift
The RDA was introduced in Australia in 1975 during the country's shift in to the immigration policy of “multiculturalism.” From 1901 in the Australian Federation, only white, English-speaking immigrants were welcome under the “White Australia Policy.” It was only in 1973 that this policy was officially abolished, and race was removed from immigration criteria. The cultural shift underpinning this change had slowly taken place since the end of the WWII when white European immigrants who did not speak English were allowed, and later when Vietnamese refugees from the Vietnam War were accepted. Hence, the decline of the white Australia ideal, coupled with the civil rights movement of the 1960-1970s, brought concerned attention to the suppression of racial difference in Australia.
(b) International Pressure
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) came into force in 1969. Australia ratified ICERD in 1973, and the progressive government of the day declared the “White Australia Policy” “dead and buried.” The RDA was the legislative expression of ICERD in Australia that ensured all Australians had equality before the law. The antidiscrimination provisions only form part of the RDA and were interwoven into legislation as part of Australia’s cultural shift toward multiculturalism.
Japanese Context
In Japan over the last ten years “hate speech” towards people from a different ethnic origin (particularly the resident Koreans, called Zainichi Koreans) has increasingly become a social issue that has drawn the attention of the public and legislators. According to Professor Junichi Satou from the Osaka Sangyo University, there were three main reasons the new legislation was introduced last year: public momentum, condemnation from the international community, and shifting of jurisprudence around this issue.
(a) Public Momentum
In March 2016, the Japanese Ministry of Justice reported 1,152 confirmed incidents of hate speech between April 2012 and September 2015. These public demonstrations took place in areas where minority groups were concentrated. In 2014, the Mindan (Korean Residents Union) reported that these demonstrations created significant issues as they incited direct ethnic discrimination, posed a major threat to residents, and affected the mental health and opportunities of children and youth.1 The Mindan report also noted the shame these words and actions brought to Japanese society and referenced the motivations of those tolerant of such hate speech, such as “warped patriotism.” This sense of shame and call to responsibility was also reflected in the Governor of Tokyo’s, Yochi Masuzoe, opening speech to the Tokyo Metropolitan Assembly in 2015, where he reflected upon the heavy responsibility that Tokyo city bears as the host of the 2020 Olympics — a festival of peace.2
(b) International Pressure
The international legal community also expressed concern at the level of hate speech in Japan, which ratified the ICERD in 1995. The Acting Secretary-General of the International Movement Against All Forms of Discrimination and Racism, Megumi Komori, stated that, whenever the United Nations (UN) questioned the Japanese government about racial discrimination, the response was consistent — claiming that the situation was not serious enough to require legal prohibition. However, in mid-2014 the UN Committee on the Elimination of Racial Discrimination and the UN Human Rights Committee challenged this assertion, calling on Japan to adopt firm steps to combat hate speech and ensure perpetrators of hate speech were given appropriate sanctions — an unusually harsh warning from the UN.
(c) Shifting of Jurisprudence
In 2010 a Korean school in Kyoto sought damages from the far-right group, Zaitokukai, for their rallies throughout 2009-2010, during which they would threaten and vilify the students from outside the school grounds. While Japan did not have any anti-discrimination provisions in law at that time, the Kyoto District Court determined in 2013 that Zaitokukai committed acts of racial discrimination due to Japan’s ratification of ICERD. The Osaka High Court affirmed the lower court decision in 2014. In the same year, the Supreme Court rejected the appeal of Zaitokukai and upheld the decision of the Osaka High Court.3 The courts clearly signalled to the Diet the necessity for legislative intervention, and built upon the pre-existing public and international pressure that instigated the introduction of the ADSA.
The Current Debate
In both jurisdictions the introduction of an antidiscrimination law was met with splintered support. Though there were endorsements from groups who had been calling for change, there were various comments about the law, ranging from disappointment as to the strength of the law, to fear of diminishing protection of free speech, and even to scepticism of the necessity of the law. These conversations are still occurring today.
Current Discrimination Debate in Australia
The RDA has always caused controversy. It took legislators four attempts to get the bill through parliament, due to heavily divided political and public opinion. The RDA dominated political headlines in late-2016, when the current conservative government reignited the debate regarding the scope of section 18C. At the center of the debate is the balance between free speech and protection against racial hate speech. Commentators take differing opinions about what should happen to the 18C provision; some advocate its repeal or for partial change, while others argue that it should remain unchanged or be partially extended.
Those arguing for a partial change to narrow the provision believe that the arguably subjective terms “offend,” “insult,” and “humiliate” should be removed as they are too far reaching. The Prime Minister, Mr. Malcolm Turnbull, supports this position, and, in March 2017, he proposed that “offend,” “insult” and “humiliate” be replaced by “harass” to clarify the law.4 Others argue that the operation of the law needs to send a stronger message of condemnation of discrimination by criminalizing the act so perpetrators can be taken to court for penal enforcement. Alternatively, some are calling for a review of the RDA in light of all relevant laws such as defamation, metadata, whistle blowing, and freedom of information laws,5 which are a higher priority than reform to the RDA.
Criticisms and Debates of Japan’s Law
In the lead up and the immediate aftermath of the introduction of the ADSA, there was considerable reluctance to outlaw hate-speech due to the potential limitation or conflict with freedom of speech, an entrenched right in Japan’s Constitution (Article 21). Proponents of the law note that the UN International Covenant on Civil and Political Rights states that the freedom of speech should not violate the rights and reputation of others (Article 19(3)(a)).
Despite the introduction of the Act being a milestone in Japan’s human rights sphere, experts and critics have expressed disappointment with the current provisions. Firstly, the ADSA did not impose sanctions for breaches. Similar to critiques of the Australian law, ADSA is criticized for “lacking teeth” and simply obliging each municipality to come up with its own policies, and there are no prescriptive sanctions or any strong enforcement mechanisms. It is a symbolic law with no clear consequences for breaches.
Secondly, the offence of “hate speech” is not made clear. Article 2 of the ADSA states that the law protects persons who originate from outside of Japan, and who lawfully reside in Japan, from significant insults and open announcements of harm to life, body, freedom, property, or reputation. However, this is a broad definition that makes it difficult to determine whether hate speech has occurred. Therefore, after demands for clarification from Kawasaki, Kyoto, Osaka, Kobe, and Fukuoka cities, the Ministry of Justice provided some concrete examples, such as: “go back to your home country,” “kill people [from a certain nation/ethnic group],” or describing people as “cockroaches.” Finally, the groups afforded protection under the ADSA are too exclusive. ADSA only applies to individuals and therefore is difficult to use when ethnic minorities are being targeted as a whole. Furthermore, ADSA completely fails to protect vulnerable groups in Japanese society, such as refugees and illegal immigrants, who arguably face more discrimination than legal migrants from different backgrounds. Therefore, the ADSA is wholly inadequate, in that it does not apply to everyone, and only the narrow offence of hate speech is considered, rather than discrimination broadly.
Conclusion
It is clear that, despite the wide acceptance of human equality, anti-discrimination laws are controversial in both Australia and Japan. Although there is no evidence to suggest that banning discriminatory speech reduces bigotry, there is still a strong case for these laws to continue in order to build inclusive, modern communities. In Australia, racial discrimination is still an issue, with twenty percent of the population stating that they have experienced racial and religious discrimination, eleven percent believing they have been excluded from social activities or workplaces due to race, and five percent reporting physical assault due to their background.6
The laws in Japan can be criticized for many reasons, as stated earlier. However, even as a symbolic law, the law seems to have positive results, with the number of far-right rallies having halved in the first eleven months since its enactment, according to a survey conducted by the National Police Agency. This said, although the number of public demonstrations has declined, discrimination continues in alternative forms. Advocates are calling for a second phase of broader laws that aim to stamp out hate speech by targeting any messages of discrimination, including those against ethnicity, birth, or disability, which could only be a positive step towards social inclusivity.
Mai Mitsumori-Miller is a second year Juris Doctor candidate at the University of Melbourne, Australia and was an intern of HURIGHTS OSAKA during the December 2016- January 2017 period.
For further information, please contact: Mai Mitsumori-Miller at maimitsumorimiller(a)gmail.com.
Endnotes
1 Committee on the Protection of Human Rights of the Central Head Office of the Korean Residents Union in Japan (Mindan), Report on the Issue of Racism and Hate Speech in Japan, 18 July 2014, http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/JPN/INT_CERD_NGO_JPN_17699_E.pdf.
2 Yoichi Masuzoe, “My Vision for the World’s Best City: A Peaceful Society that Upholds Basic Human Rights,” policy speech during the first regular session of the Tokyo Metropolitan Assembly, 2015, www.metro.tokyo.jp/ENGLISH//GOVERNOR/ARC/SPEECH/ 2015/0218/contents01.htm.
3 “Supreme Court upholds compensation ruling against 'hate speech' group,” The Asahi Shimbun, 10 December 2014, https://web.archive.org/web/20160310180800/ http://ajw.asahi.com/article/ behind_news/politics/AJ201412100078.
4 Dennis Shanahan and Simon Benson, “18C: Powers to ‘terminate’ trivial cases,” The Australian, 21 March 2017, www.theaustralian.com.au/national-affairs/18c-reformmalcolm-turnbull-takes-farreaching-overhaul-to-partyroom/news-story/103a229210cb98d9c83e7af00fb3aa69.
5 Media, Entertainment and Arts Alliance, The Chilling Effect: the report into the state of press freedom in Australia in 2017, page 13; https://issuu.com/meaa/docs/170503_press_freedom_report_low-res.
6 Scanlon Foundation, Mapping Social Cohesion 2015: National Report, http://scanlonfoundation.org.au/wp-content/uploads/ 2015/10/2015-Mapping-SocialCohesion-Report.pdf.