Community Relations Commission of NSW urges government to back down on 18C

From Vic Alhadeff, Chair, NSW Community Relations Commission:

On behalf of the 190 ethnic communities of New South Wales, we urge the Federal Government to withdraw its Exposure Draft of the “Freedom of Speech (Repeal of Section 18C) Bill 2014” and reconsider the entire issue.

Approximately 25 per cent of the people of NSW were born overseas and another 25 per cent have at least one parent born overseas. The representative organisations of a large number of our ethnic and indigenous communities have voiced opposition to the Government’s proposals, while not one has expressed support.  

The safeguards currently provided by Part IIA of the Racial Discrimination Act have been in place for almost 20 years, including during the 11 years of the Howard administration, to give the targets of hate speech a peaceful and civilised avenue of redress. These laws have succeeded in resolving hundreds of cases that would otherwise have been left to fester and to degrade social cohesion and mutual respect.

The current law protects all Australians, not only minority groups. Many Australians have immigrated to this country to escape bloodshed and strife in their countries of origin, often fuelled by racism and bigotry.

We understand the destructive potential of these poisonous passions all too well. Our laws against racial vilification are one of the few inhibitors we possess against the introduction into Australia of the racism which underpins many overseas conflicts and the violence to which it can give rise.

We believe the changes proposed by the government, if passed, will send a dangerous signal that hate speech is sanctioned by the law as a form of freedom of speech, that bigotry has a place in our society.

While we accept fully that this is not the intention of the proposed change that will be the effect. And those so inclined will seize upon it, with unambiguously negative consequences for Australian society. The changes will give succour to those who harbour bigoted views and reassure them that they may bring those views into the public domain, aware that their targets will have no alternative but to suffer in silence or dignify their tormentors with a response.  

The practical effect will be that far fewer cases of racist behaviour will be deemed unlawful, and many such cases will not only be excused, but even celebrated as a demonstration of freedom of speech. Even in situations of unambiguous abuse, the victim will be required by law to prove that the abuse may incite a third party to racial hatred or has caused fear of physical harm – extremely narrow and difficult tests to satisfy.

The majority of Australians are committed to racial tolerance; 84 per cent support the notion that we are a multicultural nation, according to a recent Monash University survey. But those who bring diversity to our country will now be more susceptible to racist taunts aimed at their culture, their tradition, their faith, their skin colour. They will be rendered vulnerable to hate speech. Yet a survey by the University of Western Sydney found that more than two-thirds of respondents favoured leaving the current law as it is.

Racism poses a real and present danger and its harms are well documented worldwide. Those harms are far more extensive than those which would ostensibly be protected against under the Exposure Draft. Our government has an abiding duty to make racism socially unacceptable and to provide the targets of racism with a legal and peaceful course of action with which to defend themselves. The proposed changes will take our society in the opposite direction – at great cost to us all.

National Sikh Council of Australia joins chorus against repeal of 18C

From Bawa Singh Jagdev OAM, Secretary of the National Sikh Council of Australia:

... the National Sikh Council  Of Australia, are totally against the repeal of Section 18C proposed by  the Attorney-General.  In so doing he is redefining the words, vilifies and intimidates which are not in agreement with  the meanings given in any English dictionary. With the amendments  he has proposed, we the minority ethnic communities will be all the time subjected  to racial harassment, malicious and abusive statements  and comment, and  we won’t  have  any recourse to law to constrain the bigots.

Locked in a war of words to define free speech

From SMH, March 29, 2014, by Gay Alcorn:

C

Activist Pat Eatock speaks to media after the Federal Court found in 2011 that columnist Andrew Bolt had breached the Racial Discrimination Act. Photo: Justin McManus

Fredrick Toben always insisted he wasn't a Holocaust denier because you couldn't deny something that never happened. The German-born Australian says there was never any systematic German program to kill Jewish people, denies the existence of gas chambers at Auschwitz and claims that Jews exaggerated the numbers murdered during World War II, sometimes for financial gain.

When Australia passed racial hatred laws in 1995, the Executive Council of Australian Jewry decided to take Toben on, led by its then director Jeremy Jones and the solicitor in the case, Peter Wertheim. Their first complaint was in 1996. It took until 2002 for it to get to the Federal Court, which found that Toben's views weren't part of academic debate about the Holocaust, but were designed to ''smear'' Jews.

Toben refused to remove the material, citing freedom of speech. In 2009, he was sentenced to three months' jail for contempt of court.

Illustration: Matt Davidson.

Wertheim is the executive director of the council, which has used racial hatred laws aggressively to fight serious examples of anti-Semitism - cases have been conciliated though the Australian Human Rights Commission and several have found their way to the Federal Court.

The influential national Jewish group and every major ethnic organisation in the land will not let these laws go without a fight.

The government, which this week released proposed amendments designed to end the ''chill factor upon freedom of speech'', as Attorney-General George Brandis put it, suddenly seems nervous about championing the free speech of people such as Toben.

The draft laws ''would always capture the concept of Holocaust denial'', Brandis insisted, saying it would amount to racial vilification, a proposed new provision. But Wertheim, as well as human rights lawyers, the libertarian Institute of Public Affairs, which campaigned to scrap racial hatred laws, and the Race Discrimination Commissioner, Tim Soutphommasane, are in agreement that people like Toben are likely to have free rein if the proposals become law, because the exemptions to vilification are so broad.

''I just don't think that the Attorney's reading of his own exposure draft is accurate,'' says Wertheim, who was involved in two consultation meetings with Brandis about the changes. 

''Just about every instance of Holocaust denial that has ever been challenged has been sought to be excused on the basis that it's simply engaging in public discussion of an academic matter. I have no doubt that the prospect of succeeding in such a case under the proposed new legislation would be very much smaller than under the existing legislation.''

Critics of the government's proposals say they are shocked at how far they wind back the right of vulnerable groups to seek redress for serious hate speech. They say Australia's laws have worked with little controversy for almost 20 years and that the changes are a ''contrivance'', as Human Rights Commission president Gillian Triggs put it, to deal with conservative outrage about one case.

Columnist Andrew Bolt was found to have breached race hate laws in 2011 through articles - full of inaccuracies - questioning whether prominent fair-skinned Aboriginal people were claiming to be indigenous to receive benefits available only to Aborigines.

The government made no secret before the election that it found the Federal Court's decision amounted to censorship of political opinion, and pledged to scrap the racial hate laws in their current form.

Herald Sun columnist Andrew Bolt, who in 2011 was found to have breached section 18C. 

Amid the emotion and politics in this debate, there is a serious question about where to strike the balance between free speech in a democracy and protection against racial abuse in a multicultural society. ... for Brandis to say that ''people do have a right to be bigots, you know'' while trying to convince people that his draft would strengthen protection against racial hatred is hard to pull off.

The backlash may mean changes to Brandis' ''draft exposure'' amendments, with a flood of submissions expected by the end of April. Fairfax reported this week that the resistance was not just external, with objection in cabinet to Brandis' proposals.

Some in the broader party are expressing doubts publicly, including NSW Premier Barry O'Farrell and Victorian Multicultural Affairs Minister Matthew Guy. Senator Brandis is now sounding more conciliatory, indicating he is ''open to other suggestions''.

At the centre of debate is section 18C of the Racial Discrimination Act, which makes it unlawful to do an act publicly that is likely to ''offend, insult, humiliate or intimidate'' on the basis of race or ethnic origin. You can do all those things but still be protected if your action was done reasonably and in good faith, and if it's an artistic, academic or scientific work, or part of a debate in the public interest. It's a civil, not a criminal, provision - there are no convictions for breaching the act, and remedies are often apologies or small payments.

The courts have interpreted the law to mean that a ''mere slight'' is not unlawful - it needs to be serious racial abuse. The laws were controversial from the beginning, with then opposition leader John Howard opposing them.

The government's changes would get rid of ''offend, insult and humiliate'', which the government says amounts to ''hurt feelings'', which shouldn't be outlawed in a rowdy democracy. It keeps ''intimidate'', but defines it narrowly as causing fear of physical harm, with no mention of psychological harm. It introduces a provision against vilification, defined as inciting hatred.

The key is that the emphasis switches from the impact racial hatred has on its victims to whether it causes fear or incites racial hatred in others. Even if you do intimidate or vilify someone on the basis of race, there is a broad exemption for anything ''communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter''. The requirement to be reasonable and in good faith are gone. Prime Minister Tony Abbott told The Conversation that the proposals would produce ''a stronger prohibition on real racism, while maintaining freedom of speech in ordinary public discussion''.

Soutphommasane, whose job is to oversee the laws, begs to differ. ''This would involve a very dramatic change to the law … it severely weakens the protections that exist against racial vilification and may have the effect of encouraging a minority of the population that they can racially abuse and harass someone with impunity.''

His boss, Gillian Triggs, believes the exemptions are so broad that ''it is difficult to see any circumstances in public that these protections would apply''.

Holocaust denier Fredrick Toben was found to have breached the Racial Discrimination Act.

There would not be another Andrew Bolt case. Judge Mordecai Bromberg found that Bolt couldn't rely on the free speech exemption because he did not act reasonably and in good faith, and that his articles contained ''gross inaccuracies''. Even if it was found that his articles caused others to be fearful or incited racial hatred, they would be exempt because they were part of public debate.

Critics are bewildered as to why these changes are a priority. The vast majority of complaints to the Human Rights Commission are settled through mediation, with only about 3 per cent reaching court. Academics Luke McNamara and Kate Gelber have recently completed research on the impact of hate speech laws on public discourse in Australia. Of 3788 vilification cases lodged nationally under federal and state laws between 1989 and 2010, just 68 (or 1.8 per cent) were referred to a tribunal or court. Of these, just 37 (54 per cent) were successful.

''Our headline conclusions was that the claim that there is a diminution of free expression in our society [because of the laws] is not supported,'' said Professor McNamara. ''The claim that these laws are a magical solution to racism isn't really supported, either. Most people who experience racism are never going to invoke these laws but take comfort from their existence.''

The director of the Castan Centre for Human Rights Law at Monash University, Professor Sarah Joseph, was uncomfortable that under the existing law ''offend'' and ''insult'' could restrict free speech.

''There is no human right to be free from offence and insults, even on the basis of one's race,'' she said.

But the government went much further. The definition of intimidation was now too narrow, Joseph said. And the shift in the standard to be applied when deciding if something is intimidating or vilifying becomes that of a reasonable member of the general community rather than a member of the targeted group. That misunderstood how severely some people could be impacted.

''But the biggest problem is the exemption which seems to remove all statements made in public debate,'' she said. ''There's no requirement for reasonableness or good faith. It's an extremely broad exemption.''

Joseph believes that only racial abuse such as neighbourhood disputes - where a neighbour hurls racial insults at another over a fence, for instance - might be caught. Anything to do with public debate, unless it incites hatred in another or intimidates to the point of causing fear of physical harm, would not be unlawful. Virtually nothing that appeared in the media, including blogs, was likely to fall foul of the law.

Peter Wertheim understands the free speech arguments, but says what is most upsetting about anti-Semitism is not that somebody writes that the Holocaust never happened. It's the smear, the insinuation about what Jews are like, the dehumanising of individuals. There's a role for the law in that, he says.

''To be the object of racism is to be depersonalised, to be made an abstraction. I think people who have not been the objects of racism often don't understand that. I don't think the government understands it either.''

HOW OLD CASES WOULD FARE UNDER THE NEW LAW

THE LAW NOW

Under the Racial Discrimination Act, it is unlawful to do something that is reasonably likely to ''offend, insult, humiliate or intimidate'' someone because of their race or ethnic origin (Section 18C). There is a free speech exemption if you have acted reasonably and in good faith and if it is an artistic, academic or scientific work or about a matter of public interest. (Section 18D)

Critics say the law is too broad, particularly the words ''offend'' and ''insult'', and has the potential to restrict free speech on contentious issues.

THE PROPOSED NEW LAW

The government's ''exposure draft'' would get rid of ''offend, insult and humiliate'' but ''intimidate'' would stay, defined as causing fear of physical harm. A new provision would outlaw racial vilification, defined as inciting hatred. The need to act reasonably and in good faith is gone, with the free speech exemption applying to ''public discussion of any political, social, cultural, religious, artistic, academic or scientific matter''.

Critics say the amendments go too far and would fail to protect vulnerable groups from racial hatred, particularly given the broad exemption for racial abuse if it was done as part of public discussion.

THE IMPLICATIONS

The director of the Castan Centre for Human Rights Law, Professor Sarah Joseph, assesses how the following three cases would fare under the new draft laws.

EATOCK v BOLT 2011

Herald Sun columnist Andrew Bolt was found to have breached section 18C in two articles suggesting prominent fair-skinned Aborigines had falsely identified as indigenous to claim benefits available only to Aboriginal people. The judge ruled Bolt could not rely on the exemption for a matter of public interest because he had not acted reasonably or in good faith, and his articles contained gross inaccuracies.

Professor Sarah Joseph: Bolt would not have lost the case. His articles were found to have been likely to intimidate, but intimidation has been narrowed to mean ''cause fear of physical harm'' and it is unlikely that the articles would make someone fear physical harm. It is also unlikely they would be found to vilify fair-skinned Aboriginal people, as it would be hard to establish they would cause third parties to hate that group. In any case, the defence for anything written as part of public discussion is so broad it seems to ''save'' almost any column written in the mainstream media, and probably any blog.

CAMPBELL v KIRSTENFELDT 2008

In what started as a neighbourhood dispute in a town outside Perth, Mervyn Kirstenfeldt was found to have breached section 18C by repeatedly calling his neighbour Kaye Campbell, an Aboriginal woman, names such as ''Gin'', ''nigger'', ''coon'' ''lying black mole c---'' and telling her to go ''back to the scrub where you belong''. The abuse was often made in the presence of Campbell's family and friends.

Joseph: This could be perceived as intimidating or vilifying. The repetition could make an ordinary person fear physical harm. The abuse could be interpreted as vilifying, though it is unlikely Campbell's friends and family would be turned against her. The public discussion defence would not apply, as the abuse is not in the context of political or social commentary. Such ''neighbourhood'' abuse would still be against the law.

JONES v TOBEN 2002

In the first case to do with racial abuse on the internet, Holocaust denier Fredrick Toben was found to have breached the act and was ordered to remove offensive material from the web. Toben expressed doubt that the Holocaust ever happened, said it was unlikely there were gas chambers at Auschwitz, and claimed Jewish people, for reasons including financial gain, had exaggerated the numbers of Jews killed.

He was found to have lacked good faith because of his ''deliberately provocative and inflammatory'' language.

Joseph: Toben would likely not be found in breach of the new law. It is unlikely his speech intimidates so as to make people afraid for their physical, as opposed to psychological, wellbeing. It could however be interpreted as vilification. Holocaust denial indicates that the Jews have concocted the Holocaust for self-serving purposes, a classic anti-Semitic idea that has historically provoked hatred against Jewish people.

However, Toben would likely be saved by the exemption, as he could claim his website was published as part of political, social, cultural, or academic discussion.

There is no requirement the discussion be reasonable or be conducted in good faith.

Are we to favour bigotry over the right to live unaffected by it?

From SMH, March 28, 2014, by Dr Tim Soutphommasane, Race Discrimination Commissioner:

Illustration: Andrew Dyson.

When I commenced my term as Race Discrimination Commissioner last year, I never imagined I would be asked to comment on whether Australians enjoyed ''the right to be bigots''. It is a measure of how dangerous some of the debate about the Racial Discrimination Act has become.

As we consider the Federal Government’s exposure draft of changes to racial vilification laws, there should be one question above all that should guide our deliberation. What kind of society do we want Australia to be?

Our laws are bound with our values. They express how we aspire to conduct our lives together. Like the many communities that have spoken this week, I have very serious concerns about proposed changes to the Racial Discrimination Act. If enacted, they would severely weaken existing legal protections against racial vilification. They would embolden a minority with bigoted views to amplify their prejudice.

Such developments would come at a high price. Unfortunately, the human cost of racism isn’t always appreciated in the debate about Section 18C. Too often, the matter has been reduced to a discussion about legal interpretation or philosophical principle. But we shouldn’t be talking about things in the abstract.

Racism hurts its victims in real ways. As one Aboriginal community leader has said, ''racism makes our people sick''. Those exposed to racist abuse will testify that it can inflict mental and physical harm. It can wound your very dignity as a person. It is something that diminishes people’s freedom and their ability to participate in society.

As it currently stands, the law allows people to hold others accountable for acts that offend, insult, humiliate or intimidate on the grounds of race. This doesn’t mean that anything offensive or insulting is against the law. The law only covers acts with a clear racial basis. It doesn’t extend to trivial slights.

For someone, however, who has been abused by co-workers, customers or strangers in public as a “filthy coon'', ''stupid boong'', ''little gook'', ''shifty Jew'',  ''sand-nigger'' or ''terrorist'', the current law means that you have some means for seeking redress. The legal remedies are civil in nature. When complaints are made to the Australian Human Rights Commission, an attempt is made to conciliate the matter. A majority are resolved, frequently with an apology. Very few end up in court – a mere 5 cases of 192 racial vilification complaints received in 2012-13.

The proposals put forward in this week’s exposure draft would involve a dramatic narrowing of what could be counted as unlawful racial abuse. Only those things that ''vilify'' or ''intimidate'' another person would fall foul of the Act.

On the face of it, this mightn’t sound like a radical departure. But ''vilify'' is defined as the incitement of racial hatred, as opposed to its more ordinary meaning of speech that degrades or slanders. This means that the law would no longer be concerned with the harm that racist behaviour inflicts on its target. Rather, the consideration would be the effect of behaviour on a third party or public audience. The definition of ''intimidate'', meanwhile, is confined only to situations where someone apprehends physical harm; non-physical intimidation wouldn’t be covered.

Let’s consider the practical effects of what such a change would involve. Very simply, there would be significantly fewer cases of racist behaviour that would be captured as unlawful.

Even in cases of overt racist abuse, it would be necessary to demonstrate that the conduct could incite a third person to feel racial hatred. Such an incitement test has proven extremely difficult to satisfy in existing state racial vilification laws.

Take the scenario of a spectator racially abusing a person at a football match. Under what is proposed, the only thing that will matter is whether third parties were incited. The effects of the abuse in degrading the target would be irrelevant, no matter how serious or severe the vilification.

As for intimidation, consider the scenario of someone being deterred from participating in public debate, out of fear of being subjected to verbal racial harassment. The proposed laws mean that this is unlikely to be considered intimidation.

The most disturbing deficiency of the exposure draft concerns its remarkably broad category of exception. These cover anything that is done in the course of participating in public discussion. The draft changes remove the current requirements for free speech to be conducted with reasonableness and good faith. The proposed exception is so wide it is hard to imagine what, if any conduct, the law would prohibit.

The effects would likely be profound. You may threaten physical harm, incite others to racial hatred, or racially abuse someone in any other way. You may do so dishonestly, unreasonably or in bad faith. With the proposed law, you may do all these things but nevertheless invoke the protection of free speech.

In other words, the dividing line between free speech and hate speech would be removed. There would be no distinction between venting racial hostility and conducting legitimate public debate about ideas.

Only one reason has been given for these proposed changes: the Andrew Bolt case. Bolt was found to be in breach of the Act, not because he queried the identification of fair-skinned Aboriginal people, but because he did so in a way that combined errors of fact, distortions of the truth and inflammatory and provocative language. He was unable to establish good faith. The Bolt judgment doesn’t provide a compelling reason for weakening protections against racism that have worked fairly since 1995.

Indeed, our existing racial vilification laws continue to enjoy widespread community support. A recent survey conducted by researchers at the University of Western Sydney showed that between 66 and 74 per cent of Australians agreed or strongly agreed that it should be unlawful to offend, insult, or humiliate on the basis of race. The majority of Australians have a strong commitment to racial tolerance.

This takes us back to that original question about what kind of country we would like ours to be. It is the mark of a civilised society that it protects the vulnerable from the powerful. For all that has been said about fighting hate speech with more speech, some forget that not everyone has the power to fight back against racism when it happens. It is for such people that racial vilification laws exist – to ensure that those who are silenced by discrimination at least have the assurance of knowing the law is on their side.

The proposed changes to the Racial Discrimination Act appear to favour a freedom to practise bigotry over a freedom to live unaffected by it. But as the philosopher Isaiah Berlin wrote, ''total liberty for wolves is death for the lambs''. Is this the kind of ethos that we wish to endorse through our laws?

Why is it necessary to prohibit racial discrimination?

The first 3 of the 8 stages of genocide are Classification, Symbolization, and Dehumanization. These are varying degrees of racial discrimination which, if allowed to prevail, can lead to genocide.
This is why (while protecting freedom, including freedom of speech) it is essential to prevent bigots from spreading their poison.

It is critical now for Australia to get the balance right in reviewing the Racial Discrimination Act.


From Genocide Watch, 1998, by Gregory H. Stanton, President: 

The 8 Stages of Genocide

• Classification 
• Symbolization 
• Dehumanization 
• Organization
• Polarization 
• Preparation 
• Extermination 
• Denial

Genocide is a process that develops in eight stages that are predictable but not inexorable. 
At each stage, preventive measures can stop it. 
The process is not linear.  Logically, later stages must be preceded by earlier stages.  But all stages continue to operate throughout the process.

1. CLASSIFICATION: All cultures have categories to distinguish people into “us and them” by ethnicity, race, religion, or nationality: German and Jew, Hutu and Tutsi. Bipolar societies that lack mixed categories, such as Rwanda and Burundi, are the most likely to have genocide. The main preventive measure at this early stage is to develop universalistic institutions that transcend ethnic or racial divisions, that actively promote tolerance and understanding, and that promote classifications that transcend the divisions. The Catholic church could have played this role in Rwanda, had it not been riven by the same ethnic cleavages as Rwandan society. Promotion of a common language in countries like Tanzania has also promoted transcendent national identity. This search for common ground is vital to early prevention of genocide.

2. SYMBOLIZATION: We give names or other symbols to the classifications. We name people “Jews” or “Gypsies”, or distinguish them by colors or dress; and apply the symbols to members of groups. Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to the next stage, dehumanization. When combined with hatred, symbols may be forced upon unwilling members of pariah groups: the yellow star for Jews under Nazi rule, the blue scarf for people from the Eastern Zone in Khmer Rouge Cambodia. To combat symbolization, hate symbols can be legally forbidden (swastikas) as can hate speech. Group marking like gang clothing or tribal scarring can be outlawed, as well. The problem is that legal limitations will fail if unsupported by popular cultural enforcement. Though Hutu and Tutsi were forbidden words in Burundi until the 1980’s, code-words replaced them. If widely supported, however, denial of symbolization can be powerful, as it was in Bulgaria, where the government refused to supply enough yellow badges and at least eighty percent of Jews did not wear them, depriving the yellow star of its significance as a Nazi symbol for Jews.

3. DEHUMANIZATION: One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder. At this stage, hate propaganda in print and on hate radios is used to vilify the victim group. In combating this dehumanization, incitement to genocide should not be confused with protected speech. Genocidal societies lack constitutional protection for countervailing speech, and should be treated differently than democracies. Local and international leaders should condemn the use of hate speech and make it culturally unacceptable. Leaders who incite genocide should be banned from international travel and have their foreign finances frozen. Hate radio stations should be shut down, and hate propaganda banned. Hate crimes and atrocities should be promptly punished.

4. ORGANIZATION: Genocide is always organized, usually by the state, often using militias to provide deniability of state responsibility (the Janjaweed in Darfur.) Sometimes organization is informal (Hindu mobs led by local RSS militants) or decentralized (terrorist groups.) Special army units or militias are often trained and armed. Plans are made for genocidal killings. To combat this stage, membership in these militias should be outlawed. Their leaders should be denied visas for foreign travel. The U.N. should impose arms embargoes on governments and citizens of countries involved in genocidal massacres, and create commissions to investigate violations, as was done in post-genocide Rwanda.

5. POLARIZATION: Extremists drive the groups apart. Hate groups broadcast polarizing propaganda. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center. Moderates from the perpetrators’ own group are most able to stop genocide, so are the first to be arrested and killed. Prevention may mean security protection for moderate leaders or assistance to human rights groups. Assets of extremists may be seized, and visas for international travel denied to them. Coups d’état by extremists should be opposed by international sanctions.

6. PREPARATION: Victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. Members of victim groups are forced to wear identifying symbols. Their property is expropriated. They are often segregated into ghettoes, deported into concentration camps, or confined to a famine-struck region and starved. At this stage, a Genocide Emergency must be declared. If the political will of the great powers, regional alliances, or the U.N. Security Council can be mobilized, armed international intervention should be prepared, or heavy assistance provided to the victim group to prepare for its self-defense. Otherwise, at least humanitarian assistance should be organized by the U.N. and private relief groups for the inevitable tide of refugees to come.

7. EXTERMINATION begins, and quickly becomes the mass killing legally called “genocide.” It is “extermination” to the killers because they do not believe their victims to be fully human. When it is sponsored by the state, the armed forces often work with militias to do the killing. Sometimes the genocide results in revenge killings by groups against each other, creating the downward whirlpool-like cycle of bilateral genocide (as in Burundi). At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection. (An unsafe “safe” area is worse than none at all.) The U.N. Standing High Readiness Brigade, EU Rapid Response Force, or regional forces -- should be authorized to act by the U.N. Security Council if the genocide is small. For larger interventions, a multilateral force authorized by the U.N. should intervene. If the U.N. is paralyzed, regional alliances must act. It is time to recognize that the international responsibility to protect transcends the narrow interests of individual nation states. If strong nations will not provide troops to intervene directly, they should provide the airlift, equipment, and financial means necessary for regional states to intervene.

8. DENIAL is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity, like Pol Pot or Idi Amin, unless they are captured and a tribunal is established to try them. The response to denial is punishment by an international tribunal or national courts. There the evidence can be heard, and the perpetrators punished. Tribunals like the Yugoslav or Rwanda Tribunals, or an international tribunal to try the Khmer Rouge in Cambodia, or an International Criminal Court may not deter the worst genocidal killers. But with the political will to arrest and prosecute them, some may be brought to justice.

Proposed Racial Discrimination Act Changes need more work

From ECU Daily, March 27, 2014, by Dian Hadi, Student reporter:

SimonEast under Creative Commons

...A leading member of the Jewish community has expressed concerns over the Coalition’s bid to change laws that make it unlawful to “offend, insult or humiliate,” based on race.

With Coalition MP Ken Wyatt reportedly considering crossing the floor to vote against the amendments, Steve Lieblich from the Jewish Community Council has said the exemptions are too wide and the amendments would emasculate laws designed to reduce vilification.

Reporter Dian Hadi spoke Mr Lieblich earlier today. Follow this link to hear a brief segment.

Racism 'always wrong'

From SMH, 27 March 2014, by Peter Hartcher and James Massola:

NSW Premier Barry O'Farrell has criticised comments by federal Attorney-General George Brandis that people have the right to be bigoted, declaring that vilification on the grounds of race or religion is ''always wrong''.

...''In commendably seeking to protect freedom of speech, we must not lower our defences against the evil of racial and religious intolerance,'' he said.''Bigotry should never be sanctioned, whether intentionally or unintentionally. Vilification on the grounds of race or religion is always wrong. There's no place for inciting hatred within our Australia society.''

Senator Brandis made his comments this week in response to criticism by Labor of the federal government moves to change section 18C of the Racial Discrimination Act.

It was used to prosecute News Corp columnist Andrew Bolt over an article he wrote attacking ''fair-skinned'' Aborigines.

Under questioning from Labor Senator Nova Peris, Senator Brandis said: ''People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find insulting or offensive or bigoted.''

But Mr O'Farrell said Australians ''enjoy a history as a state and a nation of which we can be overwhelmingly proud''.

''But we must never forget that includes appalling examples of the consequences of intolerance and hatred,'' he said.

''No government,  no organisation, no citizen can afford to be less than vigilant in combating bigotry, intolerance and hatred. And frankly, our way of life depends on that vigilance.''

Senator Brandis released a draft exposure bill on Tuesday after a lengthy cabinet meeting on Monday night in which he was forced to water down his original proposal for changes to sections of the Act.

The draft allows the government's position to remain fluid and community groups to react....

One minister said: ''George has really drunk the right-wing Kool-Aid.''

Another minister said Mr Brandis' original proposal was ''much worse'' than the agreed text and he had been forced to back down. 

A third minister present at the meeting said the original bill had been ''terrible''.

Asked if the cabinet had forced the change from a bill to an exposure draft, that minister said ''things are evolving all the time'' and that the exposure draft still ''needs to be changed quite substantially''.

The exposure draft released has proposed section 18C, which makes it unlawful for someone to act in a manner likely to ''offend, insult, humiliate or intimidate'' someone because of their race or ethnicity, would be repealed while section 18D, which provides protections for freedom of speech, will be removed and replaced by a new section.

The changes remove the words ''offend, insult and humiliate'', leave in ''intimidate'' and adds the word ''vilify'' for the first time.

But a  passage  in the exposure draft that exempts words and images "in public discussion of any political, social, cultural, religious, artistic, academic or scientific matter", has attracted a storm of criticism for being too broad and weakening current protections.

...Labor's shadow attorney-general, Mark Dreyfus, said the ''extreme'' changes proposed by Senator Brandis would ''give the green light to racism and hate speech''.

''Having three cabinet ministers briefing against the Attorney-General in today's papers is proof the Abbott cabinet has no confidence in him,'' he said.

''They know it shows this government’s twisted priorities – not even Tony Abbott’s closest supporters want to be associated with this.

''This shows how completely untrue the Attorney-General's claim that his proposal is strengthening protections against racial vilification is.''

Mr Dreyfus said the five-week time frame for consultation on the proposed changes was also too short.

Don't open the door to bigotry

Statement from the Co-Chairs of Reconciliation Australia, Dr Tom Calma AO and Melinda Cilento, 27 March 2014:

Today we join our fellow Australians from the Greek, Jewish, Chinese, Arab, Armenian and Korean communities in expressing our strong view that all Australians have the right to be protected against racial discrimination and vilification. For this reason Reconciliation Australia is opposed to any changes to the RDA which weaken protections against racial discrimination.

Reconciliation Australia condemns all forms of racism. Racism is harmful. It destroys the confidence, self-esteem and health of individuals, undermines efforts to create fair and inclusive communities, breaks down relationships and erodes trust.

Racism perpetuates inequalities and can directly or indirectly exclude people from accessing services and opportunities. Racism remains a major barrier to achieving our vision for a just, equitable and reconciled Australia. It remains a barrier to governments seeking to close the gap on health outcomes, and to improve economic participation through employment and education. The fact is that many Aboriginal and Torres Strait Islander people continue to experience racism on a far too regular basis.

The Racial Discrimination Act 1975 (RDA) currently ensures all Australians are protected from discrimination on the grounds of race, colour, descent or ethnic origin.

Any changes to the RDA that weaken protections from racial vilification would pave the way to a less reconciled, just and equitable Australia. We therefore strongly oppose the current proposed changes to the RDA which repeal Section 18C.

Medical research clearly links experiences of racism with reduced health outcomes. Against this background, how are the proposed amendments to the RDA consistent with the Government’s expressed intentions to close the health inequity gap? 

Now is not the time to reduce protections from racist abuse nor to signal that such views are less odious in modern Australia.

Like other Australians we strongly value the concept of freedom of speech, but that freedom must always be balanced against the rights of others. The use of defamation laws by politicians from both sides of politics is well known and exemplifies the balance between free speech and the need for citizens to be protected from scurrilous and false verbal attacks.

We note that Section 18D of the current Racial Discrimination Act contains exemptions for “anything said or done reasonably and in good faith” and, in the case of publishing, anything that constitutes “a fair and accurate report of any event or matter of public interest”.

We note that in the key case against which the alleged free speech restrictions of the RDA are being measured – the Andrew Bolt case – the judge, J Bromberg, found that Mr Bolt contravened section 18C because the articles were not written in good faith and contained factual errors, and therefore not made exempt by Section 18D of the RDA.

In his judgment J Bromberg found the Section 18D exemptions did not apply because of “….the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language”.

Section 18D does provide free speech protection for comments that may be considered offensive to many Australians as long as these comments are delivered in a reasonable and honest way.

In a 2000 complaint under the RDA, Walsh v Hanson, politician Pauline Hanson’s published comments that Aboriginal people received preferential treatment from Governments were found not to have contravened the RDA Section 18D.

In the conciliation before the Human Rights and Equal Opportunity Commission, Commissioner Nader found that Ms Hanson would be exempt because the views expressed were genuinely held and formed part of a genuine political debate. The Commissioner found Hanson’s statements were put forward reasonably and in good faith, and there was a public interest at play – namely, political debate concerning the fairness of distribution of social welfare payments in the Australian community.

In recent years we have seen a generally calm and reasoned debate about the terrible impact of racism and its place in Australia’s history and the relationships between First Peoples and other Australians.

Australia’s sporting codes have shown great leadership in banning racism from the sporting field and working hard to better educate sports fan and the general public about the detestable nature of racism and bigotry.

The work of the AFL, the NRL, the A-League, Cricket Australia and other Australian institutions has had a marked impact on reducing racism in the community.

Our own Reconciliation Action Plan program has likewise shown to be increasing awareness of and reducing racism and ignorance in Australia.

We believe that Australia has made marked progress in the journey of reconciliation and is making inroads into reducing the legacy of historical discriminatory policies that have so devastatingly led to the levels of Aboriginal and Torres Strait Islander disadvantage.

We are deeply concerned that any reduced protection against racism and bigotry may have a seriously detrimental impact on this progress.

Australians overwhelmingly support existing Racial Discrimination Act

From University of Western Sydney, 26 March 2014:

Australia’s largest study on racism shows public supports existing Racial Discrimination Act

Research has found the Federal Government’s plan to unwind parts of the Racial Discrimination Act does not have majority public support, with Australia’s largest study of racism showing most people believe it should be unlawful to humiliate or insult people on the basis of race or ethnicity.
The Federal Government has announced plans to alter the Racial Discrimination Act so it is no longer illegal to “offend, insult or humiliate” someone because of their race and ethnicity. Existing protections against intimidation will remain, and there will be new protection against racial vilification.
This proposal runs counter to public sentiment as captured in the landmark Challenging Racism Research Project, headed by the University of Western Sydney, which surveyed more than 12,500 Australians to provide a national picture of racism, ethnic relations and cultural diversity.
“The public is very clear on this- they strongly believe the existing protections should remain in place,” says the lead researcher of the Challenging Racism Project, Professor Kevin Dunn, Dean of the UWS School of Social Sciences and Psychology.
In a recent Challenging Racism survey, 2100 respondents were asked whether it should be unlawful to humiliate, insult, offend or intimidate someone according to their race, with the results showing:

• Offend - 66% of participants agreed or strongly agreed it should be unlawful
• Insult - 72% of participants agreed or strongly agreed it should be unlawful
• Humiliate - 74% of participants agreed or strongly agreed it should be unlawful
• Intimidate - 79% of participants agreed or strongly agreed it should be unlawful

“Only a handful of Australians oppose these legal protections, with only 10 per cent disagreeing with laws that prohibit the causing of offense on the basis of race, culture or religion, and fewer still, only 6 per cent, opposing humiliation on this basis,” says Professor Dunn.

Professor Dunn says the Challenging Racism Project found 27 per cent of Australians have experienced racist talk.

“We can’t expect the law to protect each and every victim of racist talk as it simply isn’t possible,” he says.“What is possible is to establish laws with a symbolic role to set norms for us all, which encourage us to speak out and speak up when we hear people using uncivil language.”

“Racism fades and flourishes over time according to political contexts, leadership and the nature of debate, and the laws around racial vilification send an important message about what is considered to be legal and civil, and what is uncivil”.

THE RISE OF THE BIGOTS

From the Australian Hellenic Council NSW Inc., a coordinating body for the Australian Hellenic community, 26 March 2014:

The Australian Hellenic Council (NSW) is gravely concerned at the Abbott Government’s proposed watering down of the racial vilification provisions of the Racial Discrimination Act.
The Attorney General George Brandis, who freely admits that an adverse court finding against the well-known conservative commentator Andrew Bolt is the catalyst for the change in the law, has issued an exposure draft of the proposed new law and is now inviting public comment.
At the same time, Senator Brandis has defended the change to the law in the name of freedom of speech and has gone as far as claiming that Australians are entitled to be bigots if they want to.
Under the current law, it is an offence to offend, insult, humiliate or intimidate someone in public on the grounds of race or ethnicity. However, the courts have taken the view that it is limited to serious vilification and not mere hurt feelings.
The Government’s exposure draft, with the derisory title “Freedom of Speech (Repeal of s.18) Bill”, makes it unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely to vilify or intimidate another person or a group of persons and the act is done because of the race, colour or national or ethnic origin of that person or that group of persons. However, “vilify” is narrowly defined to mean the incitement of hatred whilst “intimidate” is defined to mean causing fear of physical harm. According to Senator Brandis, the government took into account the racial vilification legislation of various States. Curiously, those state laws invariably proscribe conduct which not only incites racial hatred but also constitutes serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race.
So it is not enough that you can be insulted or humiliated or denigrated on the grounds of your race, but severe ridicule or serious contempt also seemingly fall within the newly-defined right to offend.
Of more concern is the apparent ‘get out clause’ in sub-section 4 of the proposed bill which provides that the entire section will not apply to “…words, sounds, images written, spoken, broadcast or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter". This exemption is so wide and broad that it will give the green light to holocaust deniers, racists, bigots and other ‘commentators’ to engage in serious racial vilification of people simply because of the colour of their skin or their race. Senator Brandis seeks to justify this as a “robust exchange” in the marketplace of ideas. That view is seriously naïve and philosophically flawed and it is hard to envisage any racially-vilifying conduct that will be caught by this legislation.
The acting co-ordinator of the Australian Hellenic Council (NSW), Mr George Vellis, believes that the exposure draft is disappointing and belies the government’s claims of extensive consultation with the various ethnic communities.

“I have attended two lengthy meetings with the Attorney General in recent months with representatives from other ethnic communities and we all agree that no proper case for change in the law has been made. Racial bigotry is simply wrong and harmful to both the people it targets and to the cohesiveness of society as a whole. Racial hate speech assaults the victim’s dignity, self-esteem and integrity simply because of that person’s very existence. The proposed law will herald the rise of bigotry and the trivialisation of racial vilification”...

And whilst the court decision involving Andrew Bolt is criticised by the Attorney General and others, it is important to recall Justice Bromberg’s prophetic words in that case:

“At the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings. These are the values that infuse international human rights … (for) the mischief of racial discrimination is … any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or other field of public life”.

The Australian Hellenic Council (NSW) will continue to argue against racial hate speech and intends to make a detailed submission to the Government on the exposure draft.

Proposed changes to the RDA threaten racial cohesion

25 March 2014

The elected representative body for Aboriginal and Torres Strait Islander peoples says Federal Government plans to abolish important legislative protections for the racially vulnerable threaten decades of hard work to build positive race relations in Australia.

The National Congress of Australia’s First Peoples (Congress) rejects the government’s Freedom of Speech (Repeal of S. 18D) Bill 2014, which seeks to amend the Racial Discrimination Act 1975. Attorney General George Brandis released the Bill today after its endorsement by the Coalition party room.

Congress has pursued a vigorous campaign to dissuade federal parliamentarians from watering down the nation’s racial discrimination laws.

“Standing proudly alongside representatives of Australia’s Greek, Jewish, Chinese, Arab, Armenian and Korean communities, Congress has argued the views and experience of Aboriginal and Torres Strait Islander peoples strongly to Government,” said Congress Co-Chair Kirstie Parker.“We are horrified to consider the kind of Australia that could grow out of what is now being proposed.”

“We know intimately the impact that racist abuse has on our peoples. It undermines our sense of personal security and safety, can disenfranchise us even further from the rest of society, and literally makes us sick.”

“The Parliament would make history of entirely the wrong kind if it moved to protect racist attacks masquerading as public commentary or debate. There is no nobility and no greatness in placing unlimited rights to free speech above the already limited rights of the vulnerable to be free from racist abuse.”

Ms Parker said that “we must not exclude public discussions, broadcasts and publications from common decency and current standards enshrined in legislation.”

“It is beyond comprehension that the Government would openly champion a single commentator, Andrew Bolt, found by a court to have dishonoured the RDA by publishing articles that contained ‘erroneous facts, distortions of the truth and inflammatory and provocative language’; used ‘extensive’ mockery and derision; were ‘cynical’ in tone; and contained ‘gratuitous’ references to colour.”

In his judgment in Eatock v Bolt (2011), Justice Bromberg said it was significant that ‘that young Aboriginal persons or others with vulnerability in relation to their identity, may be apprehensive to identify as Aboriginal or publicly identify as Aboriginal, as a result of witnessing the ferocity of Mr Bolt’s attack on the individuals dealt with in the articles’.

Ms Parker said other worrying proposed changes included a new ‘ordinary and reasonable person’ test that was undefined and would almost certainly become a loophole for perpetrators of racial abuse.

“Congress appeals to all fair-minded Australians to speak out against the proposed changes by making a submission to the Government before the 30 April deadline, and for all federal parliamentarians to reject them as they currently stand,” [Ms Parker] said.

The coalition of peak ethnic and community groups, of which Congress is a member of, will meet in Sydney later this week to seek more information and determine the full impact of these amendments.