Section 18C in the spotlight again

March 3, 2014 by J-Wire Staff
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The ECAJ’s executive director Peter Wertheim takes issue with Professor James Allan whose article “those Elitist Hate-Speech Laws Erode Democracy” appeared in Fairfax media today…

The professor of law at the University of Queensland was writing in support of repealing Section 18C of the Racial Discrimination Act .

Peter Wertheim writes:

Professor James Allan

Professor James Allan

Contrary to the assertions of Professor James Allan, (‘These elitist hate-speech laws erode democracy’, Sydney Morning Herald, March 3), there was no equivalent of section 18C of the Racial Discrimination Act in Weimar Germany.

The only laws against hate speech were criminal offences, not civil remedies.  Weimar Germany had nothing equivalent to the framework which currently exists under the Racial Discrimination Act within which complaints of racial vilification have, in the vast majority of cases, been successfully conciliated through the Australian Human Rights Commission or resolved by direct negotiations between the parties.  This framework, which has proven to be an inexpensive, just and efficient way of resolving complaints, would be lost if section 18C were repealed as Allan recommends. The anti-hate laws of Europe, past and present, bear no comparison to section 18C.

In Weimar Germany the absence of civil remedies was made worse by the fact that the relevant criminal offences were honeycombed with immunities for members of the Reichstag, the German Parliament.   Nazi members of Parliament became the nominal publishers of single or multiple antisemitic publications.  This facade meant that no one could be prosecuted for the hate crimes perpetrated by the publications. The Reichstag could waive immunity for its members, but did so rarely.

Peter Wertheim

Peter Wertheim

The anti-hate law was further emasculated by the light sentences imposed when somebody was convicted. Most of the convictions led only to fines.  Karl Holz, editor of the rabidly antisemitic ‘Der Sturmer’, was sentenced in 1931 to one year in prison for the offence of racial insult, the maximum for that offence. However, it was his sixteenth conviction. Joseph Goebbels was sentenced to prison twice, once to three weeks and once to six weeks. Julius Streicher was sentenced to prison once for two months.  Theodor Fritsch was sentenced to prison on one occasion for four months after a criminal libel action (not a hate crime prosecution) that went on for years. Those sentenced for destruction of Jewish tombstones or painting swastikas on synagogues and in cemeteries typically received light jail sentences if they received jail sentences at all.   These convictions in effect merely became the cost of doing business for hate groups. It is generally true that an offence will not be an effective deterrent if there are no meaningful penalties attached to conviction.

Article 118 of the Weimar constitution forbade censorship with the text “No censorship will take place”.  This is very similar in substance to the US First Amendment, so beloved of the free speech absolutists as a cure-all for racism, but it too was completely ineffectual in preventing Germany from descending into a totalitarian dictatorship under the Nazis.  Unlike the US and Australia, Weimar was an immature democracy with no real experience in balancing competing freedoms and competing rights.  Ultimately,  it was the Great Depression and its devastating impact on the lives of millions of people, not Weimar’s legal regime, that fostered the rise of Nazi tyranny.

There can be no doubt, however, that it was the relentless Nazi campaign of racial vilification against Jews and other minority groups that desensitised the wider community to the humanity, dignity and rights of the groups who were targeted, and thereby prepared the way for the escalation from discrimination to persecution to genocide that was to follow.  If Allan had his way, such groups would once again have no legal means to defend themselves.


2 Responses to “Section 18C in the spotlight again”
  1. Liat says:

    James Allan, Professor of Law at University of Queensland … what sort of hands are Queensland students in, one must ask, after reading his views and reasoning! Where is the intellectual rigour one might expect from someone in such a position? I ask that question to be cheeky, really, because I do realise the poor standards that exist contemporarily in Australian academia. Thank G-d for the few who stand out for their excellence in this regard, but what about the likes of James Allan? Perhaps Professors in Law should be obliged to add studies in Ethics to their qualifications.
    Hear, hear, Otto. I agree totally with your opinions and arguments on this matter, and add my voice as support to that.

  2. Otto Waldmann says:

    I read Prof. Allan’s piece and must admit that I have never witnessed a more erratic self-indulgence in absurdities, yet by an academic.
    Here are some of the most buffling incongruities present in Allan’s rant:

    – The mere notion that Jews in France are NOT “integrated in society as equal citizens” in spite of the kind of laws Prof. Allan considers obsolete and unncessary, denotes a staggering lack of knowledge and/or understanding of contemporary France.
    Peter has covered perfectly the other, completely irrelevant analogy with the Weimar Republic. The important addition is that, the absence of any anti racial remedy in Nazi Germany was the perfect sexample of the indisputable need for laws and legal authorities capable to stave off the very defining nature of Nazi Germany, a system based on absence of legal remedies for racist trangression and, implicitely the vehicle to more serious crimes offered by the said absence of legal recourse. This clears the German problem.
    – The manner in which the “victim mentality” is covered by Prof. Allan defies any logic, any demonstrable principle of social and even psychological reflections on the subject. To utter the idea that formal impediments to harm only encourage the creation of VICTIMHOOD, turns upside-down any logic of the entire forensic edifice in society. Nothing could possibly be more absurd !!!
    Allan suggests that the “quality” of “victim” is a self concocted state, conceived arbitrarily and tendentionally subjective in order to “create” the category of “offender”. It boils down to this kind of intellectual exercise !!!
    – The “methodolgy” Allan suggests in lieu of legal redress is the “direct” reply to the offensive act by the targeted subject. Allan seems to suggest:

    – dialectical exchages contain the …undisputed virtues of resolving transgressions of the hate, dislike, intollerance, subjective objection, irrational utterings etc. Allan’s unlimited confines of “democracy” is THE mecahnism most capable of dealing with unwanted, pernicious, violent intended behaviour by the mere activation of the……right to reply. Nothing wrong as long as the category of REPLY rests with Allan in the…hands of the offended WITHOUT resorting to GOVERNING principles and respective institutions guiding the NECESSAYILY “happy” outcome The contentious parties can rely on coomon-sense as “known’ in a decent society in resolving the “encounters”. That is considering that ALL parties function, in the event, in accordance with “those” obligatory and indispensible principles. Question is, if both compeeting parties are aware and observe those laudable principle, how did we arrive at the… transgression in the first place ??!!
    – Allan can only see victims of offense as “martyrs” if the offense is taken to a public place of reckoning, i.e. Courts goverend by such laws as the infamous by now 18C.
    Considering that martyrdom is a quality of self-inflicition, of self-attainment, all those who may be considered being offended by racial slurs etc., will only proceed with challenging the offense out of the desire to become “celebrated victims”, meaning martyrs. If I , for instance, have the spiritual desire to attain martyrdom, all I need is to find someone to offend me, hurt me. I rest my case.
    – The argument that social equality defines our society, implicitely ethical standards, cultural exposure, sincere desire to become “model’ citizens defines ALL local members of our society goes with Prof. Allan beyond the limits of comprehension, defies, once again, any and all we know about our own place, our own people. The notion that comprehension and observance of all laws ( must be the kind of natural laws genetically imprinted in all of us, and NOT, obvioulsy explicit laws and rules, such as the dreaded 18C )is the moral, ethical engine of a harmonius, incident free democratic society is the last, and most spectacular gem we are being offered.
    Logicaly, if 18C is redundant simply because men and women in our society DO function in accordance with the prescriptions of the IMAGINARY legal principles ANYWAY, without the need to articulate the “said” laws, such as 18C,or, if transgresions do occur, they can be resolved OUTSIDE forensic spaces, then why not, Prof. Allan, abolish ALL laws that may impinge on the “organic”, reeflexive capacity of each and all individuals to resolve ANY transgression !!???

    One can only treat what is written under Prof. Allan’s authorship with bemusement and aghast and would naturally wonder at the necessary divide between the Law and Government, somethig blatantly absent in the strong advocacy for a warped political agenda.

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