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 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.