Dear Alan, Dear Peter

April 3, 2014 by J-Wire Staff
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The Executive Council of Australian Jewry’s executive director Peter Wertheim wrote to famed law expert Alan Dershowitz following the publication in The Australian of an article written by the American dealing with the Australian law and racial vilification….

Dear Alan

Peter Wertheim

Peter Wertheim

I write as one of your many admirers in Australia.  I especially enjoyed reading Chutzpah and The case for Israel.

I see from today’s Australian that you have weighed into the debate currently under way in Australia about our existing Federal law against racial vilification.  (We have State racial vilification laws too, but these are not in issue in the current debate).

The Federal laws that are in dispute are the provisions of Part IIA of the Racial Discrimination Act, comprising sections 18B, 18C, 18D, 18E and 18F.  These sections were the product of widespread public consultation and debate in the 1990’s in response to the recommendations of three major inquiries including The National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody.    The laws were co-authored by the late Ron Castan QC, a giant of the Australian Jewish community and the Australian legal fraternity and a champion of Indigenous Australians and the cause of human rights.

I don’t want to burden you here with the technical details of how Part IIA has operated in practice. If you wish to read up on the law and the relevant cases you can begin here.   The vast majority of incidents of racial vilification never progress to a formal complaint.  Those that do, go through a compulsory process of conciliation in the Australian Human Rights Commission before the complainant can go to court. Only a small number of formal complaints have done so.  Our organisation has been the plaintiff in several of those cases (eg Jones v Toben, Jones v Scully) and we have usually been successful.    We have successfully resolved many more cases at conciliation or by direct negotiation with publishers.

We have not wasted our time chasing every antisemite and neo-Nazi nobody down a rabbit-hole. But the big operators like ISP’s and social media platform providers are worth going after. We were successful in our complaint against Facebook to the Australian Human Rights Commission in 2012. After several rounds of negotiations with their lawyers during the conciliation process they removed hundreds of crudely racist images and comments that appeared on 51 Facebook pages. We would never have been able to get them removed without Part IIA.  Facebook ignored the avalanche of complaints from Facebook users for weeks, and only acted once our organisation made a formal complaint to the Australian Human Rights Commission under Part IIA.

In the US, similar efforts against Facebook failed.  See the attached.  Our laws have clearly worked better for the Australian Jewish community against Facebook than the US First Amendment has worked for the American Jewish community.

Part IIA of the Racial Discrimination Act has operated without controversy in Australia since 1995.  Hundreds of victims of racial vilification have been able to avail themselves of a legal and peaceful avenue for seeking redress, instead of being forced to suffer in silence or dignify their tormentors with a “debate”.  The reason for the present controversy is purely political and has nothing to do with principle.  In 2011, one of the government’s champions in the media was successfully sued under Part IIA because he was found to have racially vilified Aboriginal people.  That is the beginning and the end of it.  The country is about evenly divided between people who think he deserved what he got (his newspaper was ordered to publish an extract of the court’s opinion on the page next to his column) and those who think he was hard done by.

The US is greatly admired in Australia but there are aspects of the American legal and civic culture that very few Australians would wish to see emulated in our country.  Here, the right to sue for defamation to defend one’s reputation against untrue publications (even if there is no malice) is regarded as sacrosanct.   And the US Second Amendment (the right to bear arms) is viewed by many in Australia as a dangerous anachronism.    All of the peak Jewish national bodies in Australia without exception – the ECAJ, AIJAC, ZFA and ADC – and their respective constituent and affiliate organisations, professionals and volunteers who combat antisemitism every day have united in opposition to the government’s plans to emasculate Part IIA.  More than two-thirds of the Australian population, according to Australia’s largest study on racism, support retention of the existing law.

Personally, I agree that free speech as a rule is an effective counter to racism.  But the law is there to deal with exceptions, not the rule.  I doubt that the newspaper that published your piece today would have the courage to publish this reply, because it rebuts their editorial position.  I would love to be proven wrong on that point.  I am taking the liberty of forwarding them and many others a copy of this email

Warm regards

Peter

p.s.  Part IIA provides a civil remedy only for aggrieved individuals and groups , not criminal sanctions. So it is debatable whether “censorship” is the issue here. And there is a long list of free speech defences in section 18D for virtually anything said or done “reasonably and in good faith”.

 

Alan Dershowitz

Alan Dershowitz

Dear Peter

Thanks. I deliberately kept my argument at a level of generalization because I’m not familiar with the details of Australian legislation or the specific problems faced by particular communities. On a general level I am confident that I am correct– that answering rather than censoring is the preferable response to bigoted speech. That strong presumption may be overcome by  compelling reasons–such as the unique need to ban holocaust-denial in post war Germany. I leave it to you and your fellow Australians to weigh the costs and benefits of the particular laws currently being  debated. Please keep me apprised

Best

Alan.

 

Comments

4 Responses to “Dear Alan, Dear Peter”
  1. Otto Waldmann says:

    1st re Larry Stillman.
    At best ambiguous. I agree that legislation is the best way to create through impositions and punitive resorts a citizen best adjusted to harmonious social norms. I do not agree that the current laws ( Part II in question ) have given us martyrs of the Bolt type. We cannot have it both ways. Either Law is an operative tool or not. The mere fact that actions OUTSIDE the letter of the law attempt to modify the legal environment by siding to the law-breaker, does not prove that legal remedies are counterproductive.
    I also agree that ” as strong political and civic culture that forcefully condemns racial ethnic etc.” is needed and the same Part II is precisely the instrument, as Peter highlighted here.

    In regards to Peter’s reply, there must be agreement that Peter addressed with precision and clarity the main issues present in Dershowitz’s expected type of reply. Expected because Dershowitz is NOT big enough an ethical entity to take on the serious deficiencies in the American “way” of approaching PRECISELY the philosophy of “Free Speech” versus responsible government/governance.
    The distinctions, substantive divides between our, Australian, approach to freedoms of various kinds and the American established ethics are so massive that even a remarkable legal mind , such as Dershowitz’s cannot fill the gap.Such is the serious attachment Dershowitz presents to his own legal/ethical environment.
    To this extent, his incursion into a situation he alone admits is not his own, was bound to result in inexcusable absurdities, hence the brief and undignified reply to Peter’s approach to his Australian piece.

    When one looks at statements made by Dershowitz invoking “history” and the value of free speech ” history has proven” that free exchages in the “marketplace of ideas ” can only be conducive to securing …..democracy and, further more can provide the mechanism for the kind of debates in which common-sense and reason are BOUND to prevail !!!! all I have to shiver about is precisely HISTORY !!! The success and effects of Nazism are but one sufficient example of free speech in a Weimar republic, which DID have fairly stringent laws prohibiting certain speech abuses, is quite enough for me.
    Darshowitz allows absurdities to serve as examples of first hand relevance, by bringing family ( almost everyone has family ) into hgis rationale. The ditty about harmless words which, the confusing and contradictory way he puts it, are, on one hand, harmless, but which can also lead to unwanted deeds, could be used in demonstrating that the American seemingly immutable almost boundless allowances in “social/verbal intercourse ” is THE cause of the insurmountable levels of social friction, animosity and constant violent encounters.
    For a lawyer, Dershowitz has failed the first, most important test of observing that society, the STATE itself cannot be detached from the people who actually ARE the State and, conversely, that people can only function on principles AND measures reflective of the principles which are meant to correct unwanted behaviour.
    Our current laws, Part II here, are designed by people for the people to observe in the spirit of respect and correction of innate tendencies to selfish attempts at others’ rights and possessions. The absence of such provisions in American laws is a failure by the American ethos to realise those principles, all in favour of a social construct which encourages the individual and individuality as the essential force in motivating and furthering the social good. The State, although conceived by people, is, farcically, regarded as an unwanted intruder.
    Laws are designed, meant to straighten up bad behaviour. Free exchange of opinions and expressions within cannot alone sort out conflicts. Principles by which conflicting parties must be guided must exist, otherwise how can irreconcilable differences can be sorted out !!
    Peter is absolutely right and Dershowitz is absolutely wrong and I bet he knows it, at least in regards to Australian ways of dealing with these problems.

    • Otto Waldmann says:

      I feel that I must explain ho laws, such as the present Part II are meant to protect rights and, as I out it , “possessions”. I used “possessions” because of the sanctity of it placed within the general concepts of a liberal society, mainly the way Americans relate to it. Yes, we can extend to possessions anything that attempts to deny an individual’s rights of any kind.
      The type of exclusion based on racial, ethic, religious basis which the envisaged bigotry is given by the Governments attempt at THIS Section II, can be extended to intolerance of the physical type.
      The main thrust of the changes in the Federal Government’s flagged actions is the radical changes it is felt among the ultra-conservatives in the established spirit of multiculturalism in Australia. The concept itself is NOT a product of liberal ( as in Australian Liberal Party ) ideology.
      One of the political objectives is also the allowance of a speech which would attack such extreme political entities as the Greens, constant advocates for a number of issues related to immigration , multiculturalism, multifaceted ethical/social issues regarding marriage, gender and alike.
      As it happens the Greens are a political set which has been destabilising the more clear cut binary political landscape Australia has been accustomed to. Political correctness is in the main responsible for the allowance of all kinds of “foreign” ideas and ideologies permeating our argumentation about social “order”. The good-old arrangement has secured for so long the prevalence of an ethos forged with the prevalence of a certain mono CULTURE in mind – and practice -.The Anglo type. THE REINTRODUCTION OF THE PEERAGE is but one example of retrograde Liberal ideologies, not at all inconsistent with the same objecting to the Part II we keep talking about here.

  2. Michael Jaku says:

    Very well put Peter. Bravo!

  3. What Peter Wertheim or others have failed to explain, as far as I know, is why the threat of scumbags like Toben or crafty fact-twisters like Andrew Bolt is any worse than the situation in United States where there are a myriad of hate groups (white and black).

    Legislation which only manages to catch a few idiots in court is not enough, though the fact that it has also pushed conciliation is commendable. But the fact that the legislation has created the narcissistic and unrepentant self-promoting martyr of Bolt with political supporters is a real problem that won’t go way. Next time, it may well be someone on the left who gets hauled into court and sees herself as a martyr to the cause.

    So what do we do?

    Existing laws allow for the prosecuting of people who call out ‘fire’ in a crowded theatre as the analogy goes, but we are on very dangerous ground when trying to classify political or religious speech activity that will inevitably rely on interpretation in the courts (as another example, the Catch the Fire Ministries,that was a religious dispute, and a 4th rate one at that).

    To throw the problem back to the Jewish community, there are constant claims about antisemitism on the left and in the BDS movement, as a real threat to the community, yet will they stand up in court? Look at the legal mess that the case against Jake Lynch has got into to show how problematic the situation is.And for all the problems with disgusting material on Facebook or elsewhere, the ball can be thrown back by those who claim their views have been censored by those who don’t like criticism of Israel. I am sure the same problems occur in many other inter-communal conflicts.

    A strong political and civic culture that forcefully condemns racial, ethnic, and religious bigotry is the solution. Yet Australian culture is weak on that front as it has been since the earliest days of genocide against the Tasmanian indigenous population or prejudice against the Catholic Irish and Chinese. Politicians continue to play games on the ethnic-religious front and continue to do so today (refugees) for all the talk of being against bigotry. The commercial media plays with all sorts of stereotypes (thus Bolt). There is a strong anti-multicultural rump in the country.

    It’s a very hard issue, but it is not one to be solved by legislation, particularly issues that can be seen as political speech. The situation of day-to-day prejudice can be dealt with in other ways. Twenty years ago a lot of effort was put into what was known as the Community Relations Strategy by the Commonwealth, and in other states such as NSW. But all that was dumped by Howard and others, yet this significant activity work was very important in breaking down barriers without the need to use the crude club of the law. We need this sort of work again.

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