SMH: Meddling with act fraught with peril 17Jan14 January 17, 2014
by Richard AcklandÂ Â Â Â -Â Â Â The Sydney Morning HeraldÂ Â Â Â -Â Â Â Â 17 January 2014
”I can still remember the playground taunting of Italian kids, from which I formed my lifelong detestation of bullies who pick on a vulnerable minority. Whether they realise it or not, the same sentiment that drives those who bullied those kids then, animates those who beat up on Muslims now.”
And who should start picking on him for expressing this noble sentiment? Why, his latter-day spiritual guide, A. Bolt. Three days after the article was published, Thunderbolt declared that Brandis was ”trying to blind us with sentimental tears” and that multiculturalism was ”an ideology âŚ a philosophy of new age tribalism”. The right-wing media personality says his Dutch parents, when they arrived in Australia, encountered policies of assimilation, rather than being encouraged to ”stay in tribes”.
Eight years ago, reaching back to an even older George, Brandis told SBS Insight viewers that anything attacking a society based on pluralism and tolerance ”is inconsistent with multiculturalism”.
Now, as Attorney-General, Brandis gives every indication that, along with Bolt and the Institute of Public Affairs, he has signed up to the assimilation program and that, to assist the process, his very first legislative flourish will be to amend in some ill-defined way the Racial Discrimination Act – at least to scrub it clean of its prohibitions against offending and insulting people on the basis of their race, colour, national or ethnic origin.
This might have a superficial appeal to the free speech brigade, and I admit an early flirtation with getting rid of ”offend and insult”. But just think what sort of country we might have if it was acceptable, in fact perfectly legal, to offend and insult people purely because of their race or colour. The floodgates would open on a new level of ugliness – at least if the pile of toxic bile that currently lurks in corners of the internet is any indication.
In the process, Brandis has brought down on his head the concerns of ethnic and religious groups, horrified at the possibilities he appears keen to unleash.
Last month a delegation from various minority groups went to Canberra to lobby against amending the Racial Discrimination Act. Not only did they knock on Brandis’ door but also those of Malcolm Turnbull, Arthur Sinodinos and Philip Ruddock.
On Monday there was another two-hour meeting in Sydney between the Attorney-General and representatives of the National Congress of Australia’s First Peoples, the Hellenic Council, the Executive Council of Australian Jewry, the Chinese Australian Forum and the Cyprus Community. The Arab Council and the Chinese Australian Services Society sent apologies.
The message they gave Brandis again is that section 18C of the Racial Discrimination Act should not be changed. They said there has been a misapprehension about the way the law has been interpreted and applied by the courts and that what might be beneficial would be a codification of the case law.
The role of ”community standards” could be clarified and codification make clear that the provision is only contravened if the racial offence, insult, humiliation or intimidation is ”serious and substantial, not merely trivial”.
It would also be productive to champion the cause of Dr David Rolph, the Sydney Law School media boffin who says that the Bolt case is a distraction. The better way to go is to reform the exemptions to the ”offend, insult, humiliate or intimidate” provision.
As they stand now, the exemptions seem nice and broad and apply to the performance, exhibition or distribution of an artistic work or statements made for genuine academic, artistic or scientific purpose in the public interest. All very good, but in practice the exemptions are more restrictive than the defences in defamation law, which is saying something.
The act’s exemption provision requires defendants to overcome two hurdles by imposing an objective and a subjective test. They have to have acted ”reasonably and in good faith”.
Rolph argues that since they do not work effectively to protect free speech in defamation law, what hope is there for the provision to work effectively under the act?
One of the biggest problems is the defence of fair comment, which is a defence under the act. The trouble is that the defamation judges have weighed it down by so many technicalities that as a defence it rarely works as a free speech leg-up.
What is now a distressing hypocrisy surrounding the campaign to reform or even do away with section 18C of the act is that its advocates are generally the same people cheering on the use of the act as the basis of proceedings in the Federal Court against University of Sydney academic Jake Lynch.
He is being sued under different provisions of the act by Shurat HaDin – the Israel Law Centre. The application was filed last October and it alleges that Lynch, from the Centre for Peace and Conflict Studies, refused to support an application by Israeli academic Dan Avnon for a Zelman Cowen fellowship at the University of Sydney. It is claimed that in an act of racial discrimination, he deprived Avnon of his professional rights.
Lynch is a supporter of the Boycott, Divestment and Sanctions campaign against Israel over its treatment of Palestinians.
The Shurat HaDin statement of claim goes further and says that by calling for a boycott of Israel, Lynch adds to a campaign that disadvantages owners of Israeli-related business and deprives Israelis of cultural opportunities such as seeing Santana and Pink Floyd.
Avnon, of the Hebrew University, does not seem to have suffered a setback as a result of Lynch’s lack of support. He lists on his resume, among his forthcoming appointments, that he will be the Sir Zelman Cowen visiting scholar at the University of Sydney this year.
So, on the one hand the act is evil for affecting the free speech in the narrow provisions that deal with offending and insulting ethnic and racial minorities, but is heroic when its broad provisions are engaged as a basis of proceedings against lefty academics in the Boycott, Divestment and Sanctions movement.
The whole thing could land Brandis in a bit of a pickle. If only the new George had paid more attention to the old George.