AIJAC's submission to the Federal Parliamentary Inquiry into Freedom of Speech and article 18C of the Racial Discrimination Act

Friday 20 January 2017


 
AIJAC's submission to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia - including into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (including ss. 18C and 18D) and the complaints-handling procedures of the Australian Human Rights Commission (AHRC) - has now been published by the Parliamentary Committee.

The submission can be downloaded in full here.

For those looking for a shorter summary of AIJAC's recommendations and arguments, here is the Executive Summary of the submission:

This document is the submission by the Australia/Israel & Jewish Affairs Council (AIJAC) to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia - including into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (including ss. 18C and 18D) and the complaints-handling procedures of the Australian Human Rights Commission (AHRC) under this section.

In it, it is argued:
• That, while freedom of expression is both a vital civil right and an essential precondition of liberal democracy, it is nowhere in the world completely unfettered and absolute, such that it must supersede all other rights, and override all other forms of public interest. Indeed, we identify at least nine broad ways, besides racial vilification, in which state or federal legislation already limit, prohibit or render unlawful expression in many forms and contexts.

• That, since the passage of Part IIA of the Racial Discrimination Act 1975 in 1995, we have witnessed both more circumspection and less harm by openly racist groups in Australia, and a series of legal and societal achievements which have clearly benefitted the well-being of minority groups in Australian, including the Jewish community, as well as the social cohesion of Australian society as a whole.

• That not only is the availability of legal redress against extreme or pervasive racial vilification essential to maintaining the right of Australians to live their lives free from harassment and intimidation, it actually helps serve to protect the right to freedom of expression for members of vulnerable minority groups.

• That arguments by some individuals and groups that the wording of 18C - and specifically the inclusion of the words "offend" and "insult" - creates a subjective "hurt feelings" test which is allegedly uniquely threatening to the right to freedom of speech are simply wrong as a matter of law. Furthermore, this language is similar to that used across considerable existing state and federal legislation and the practice across many liberal democracies around the world.
• That claims that 18C is stifling Australian public debate around major issues of public concern are simply incorrect - with those who make this claim unable to offer a single reasonable and valid example of a case where the law made it impossible for exponents to express a sincere viewpoint in any significant public debate. The examples that are typically offered, we argue, actually demonstrate the opposite.

• That while there have been controversies - and apparent genuine mistakes - with regard to the process of administering 18C by the Australian Human Rights Commission in a small number of recent cases, we argue that these cases do not indicate any problems with the wording of 18C per se. Moreover, there is no reason to believe that this law is any more burdensome on the parties than other similar laws - and in fact the opposite may be the case. Nonetheless, AIJAC acknowledges that improvements to the process of administering 18C might be desirable, and suggests minor reform measures which might achieve some streamlining of the law's administration.

Block to Israeli-Palestinian peace remains the same as in 1967

From The Australian, January 7, 2017, by Gerard Henderson:

...The UN Security Council’s Resolution 2334, carried on December 23 with the US abstaining, is related to the Arab-Israeli War that ran between June 5 and June 10, 1967.

The resolution condemns “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem”.

Australia appears to be the only Western democracy to indicate that it does not agree with the passing of the resolution. New Zealand was one of the sponsors of the motion.

In fact, there was no such entity as a “Palestinian Territory” in 1967. Following the creation of the State of Israel by the UN in 1948, the land between Israel and the Jordan River was controlled by Jordan. Jordan did not give independence to Palestinians before the Six-Day War. Large parts of the West Bank are administered by the Palestinian Authority.

Like many monumental events, the history of the Six-Day War is contested.

The conflict is well summarised, in a balanced way, by Eugene Rogan in The Arabs: A History. The Arab nations at the time did not recognise Israel’s right to exist, referring to the nation merely as the “Zionist entity”.

In 1967, Egypt’s leader Gamal Abdel Nasser decided to amass forces in the Sinai near the Israeli border. Subsequently Egypt closed the Strait of Tiran to oil tankers, plus all Israeli shipping, bound for Eilat. This was interpreted by Israel as an act of war and it moved against Egypt and its allies in a pre-emptive strike.

In a stunning military victory, Israel took the Sinai Peninsula and the Gaza Strip from Egypt plus the West Bank (including East Jerusalem) from Jordan along with the Golan Heights from Syria. In the early 1980s, Israel completely withdrew from the Sinai and in 2005 unilaterally moved out of the Gaza Strip.

Resolution 2334 effectively calls for the restoration of Israel’s boundaries as they were on June 4, 1967. This would require Israel to relinquish all of East Jerusalem, including the historic Jewish quarter of the Old City and the Western Wall, which is regarded by Jews as Judaism’s holiest place.

Moreover, as anyone familiar with the topology of the area well understands, it is far from clear that Israel is defendable on its "1967 borders" [not borders at all, but the 1949 armistice line]. 

The Security Council Resolution 242, passed in 1967, envisaged that any peace settlement that led to a two-state solution, namely the State of Israel and a Palestinian state, would involve land swaps between the established nation and any newly established nation.

For years, the left-wing academics who dominate the social science departments in Australian universities have called for Australia to adopt an independent foreign policy. By this they mean that Australia should be independent of our traditional allies the US and Britain.

Right now, Australia has never been more independent in so far as foreign policy is concerned.

Malcolm Turnbull and Foreign Affairs Minister Julie Bishop have indicated that Australia would not have supported Resolution 2334 if it had been on the Security Council. As Bishop put it, “In voting at the UN, the Coalition government has consistently not supported one-sided resolutions targeting Israel.”

Fair enough. But this puts Australia at odds not only with Britain (which supported the motion) but also the US.

Needless to say, such a stance has not won the Turnbull government much appreciation among the left intelligentsia. For example, on ABC’s News Breakfast program on Tuesday, Deakin University senior lecturer Scott Burchill criticised Australia for defying what he termed “the international consensus” on this issue.

Certainly the US’s Middle East policy will change when Donald Trump succeeds Barack Obama as president on January 20. However, it is likely that the Turnbull government’s approach would have been the same if Hillary Clinton had prevailed last November.

Australia’s position that Israelis have a right to live within secure borders goes all the way back to Ben Chifley’s Labor government, which was in office in 1948 when Israel came into existence. It has been the policy of prime ministers such as Robert Menzies, Malcolm Fraser, Bob Hawke, Kevin Rudd, Julia Gillard and John Howard.

Former prime minister Tony Abbott created some attention when, in an article in The Spectator Australia, he was seen by some as supporting Trump’s commitment that the US will move its embassy from Tel Aviv (inside Israel’s 1967 borders) to Jerusalem.

Presumably the president-elect meant West Jerusalem (which is also within Israel’s 1967 borders).
In fact, Abbott’s position is more nuanced than has been reported. He wrote that a way “for Australia to demonstrate its unswerving support for Israel, as the Middle East’s only liberal, pluralist democracy, might be to join any move by the Trump administration to move its embassy to Jerusalem”. That’s all.

It’s possible, in this instance, Trump will do as he says. However, there is a long list of contemporary American leaders who have made such a commitment at various stages of their careers, including Bill Clinton, George W. Bush, Hillary Clinton, and John McCain. Even Barack Obama acknowledged in 2008 that Jerusalem was the capital of Israel.

As Muslim commentator Maajid Nawaz, who opposes Israeli settlements in the West Bank, wrote recently:

“Israel is not the biggest problem in the Middle East by a long shot.” 

There is Iran, Syria and Libya along with the religious civil war between Sunni and Shia Muslims and more besides.

Resolution 2334 is likely to prove counter-productive in so far as the creation of a two-state solution is concerned since it will inflame Palestinian hopes and Israeli resistance. 

The essential block to peace between Israel and the relatively new entity the Palestinian Authority remains as it was a half-century ago: namely, the reluctance of many Arabs to acknowledge Israel’s right to exist.


Gerard Henderson is executive director of the Sydney Institute.

Obama's Middle East Cluster Mess

From The Australian, January 5, 2017, by GREG SHERIDAN:

....sheer irresponsibility and multiple counterproductive consequences [from] the outburst of anti-Israel actions from US President Barack Obama and Secretary of State John Kerry in their last days in office ...

At the fag end of his presidency, Obama reversed the longstanding US position of vetoing wildly one-sided anti-Israel resolutions in the UN Security Council. Instead he passed a resolution claiming that every Israeli who lives anywhere beyond the 1967 ceasefire lines is an illegal settler, and that ludicrously blames Israel for the failure to resolve the Israeli-Palestinian dispute, and by implication puts that dispute at the centre of the Middle East’s woes. This was followed up by Kerry’s last big speech as Secretary of State, 70 minutes spent lambasting Israel and the settlements.

This is truly an epic cluster mess that will have doleful consequences for a long time. Malcolm Turnbull rightly, and courageously, called out the resolution as “one-sided” and “deeply unsettling” and said, further, “Australia stands with Israel. We support Israel, the only democracy in the Middle East.”

Foreign Minister Julie Bishop made equally strong statements. She and the Prime Minister displayed moral clarity and strategic sagacity.

Obama, on the other hand, emerges as his own kind of post-truth president, his undergraduate certainties and left-liberal pieties utterly undisturbed by eight years of Middle East reality. To believe, while hundreds of thousands die in Syria, civil war rages in Iraq, Yemen and Libya collapse, and the sectarian Shia-Sunni hostility rips through the region, that Israel is somehow the central issue in the Middle East is irrational, impervious to facts.

Kerry’s speech, in which he condemned the make-up of the Israeli governing coalition, was sharply criticised by British Prime Minister Theresa May, who issued a statement saying: “We do not believe it is appropriate to attack the composition of the democratically elected government of an ally.”

Although Britain voted in favour of the UN resolution, May also said she did not think it was sensible to focus on one issue such as settlements to the exclusion of other issues.

So Obama finishes office with the governments of the US’s two closest allies in the world, Australia and Britain, condemning him. Obama always damages and offends America’s friends while he never lays a glove on America’s enemies. He is that most horrible of strategic creatures, an impotent enemy and a dangerous friend.

Consider Egypt. Nothing that Obama has done in the past eight years has helped Egypt at any point.

Egypt, the giant of the Arab world, is perhaps Washington’s most important Arab ally. Egypt has a peace treaty with Israel that makes an immense contribution to stability in the Middle East. At the urging of Israel, and of the team around president-elect Don­ald Trump, due to be inaugur­ated in two weeks, Egypt withdrew its sponsorship of the resolution in question. Any semi-responsible, indeed broadly adult, administration in Washington would have decided at that point to make sure the resolution didn’t pass, so that the government in Cairo would not be embarrassed.

We don’t hear much about Egypt at the moment because the military government has stabilised the situation. But Egypt’s economy is challenged, and it is involved in its own deadly fight with Islamic State-affiliated terrorists in the Sinai. The broad future of Egypt is deeply uncertain.

Almost nothing in the Middle East — beyond the terrible humanitarian emergencies of right now, none of which involves Israel — should be of more long-term importance to Washington than promoting economic development in Egypt, and the simultaneous gradual development of institutions that might in time support a more representative political system.

But that, of course, is the challenging business of long-term, patient, even quiet, strategic purpose, and those words are entirely foreign to Obama.

Instead, by getting New Zealand to substitute for Egypt as the resolution’s sponsor, and then organising for the resolution to pass, Obama has actually penalised the government in Cairo for being a friend of the West and a force for moderation.

Cairo was in an impossible situation. Trump was begging it not to sponsor the resolution, the Obama administration was ensuring the resolution passed. If Obama had one speck of the statesman about him, removing that dilemma from Egypt would have outweighed all other considerations. Now Egypt’s government will be accused of being a plaything of the Western powers by its internal and regional enemies, who will weld both extremist Islamism and paranoid nationalism into their charges against Cairo.

And just for good measure, New Zealand will certainly, and deservedly, be damaged in its relations with the new Trump administration.

This is all a pretty good day’s work for Obama.

Many people have commented that the resolution encourages the worst tendencies within Palestinian politics. Why compromise on central issues like territorial dispositions — even though every serious player, even the Obama administration in its lucid moments, recognises that such compromise is necessary — when the UN promises you everything?

Tony Abbott made a good moral case against Australian taxpayers giving money to the Palestinian Authority when that authority pays pensions to the families of terrorists as a reward for their terrorism, including one who stabbed to death a 13-year-old Israeli girl....

Kerry makes Israel a scapegoat for his failed peace effort

From The Australian, January 4, 2017, by BRIGITTE DWYER:

The final days of the Obama administration have revealed the extent of the humiliating and astonishing victory of Donald Trump. As the president-elect crudely reminded the world on New Year’s Eve, these vanquished politicians “lost so badly they just don’t know what to do”.

In an effort to mitigate the damage and cast the blame elsewhere, outgoing political figures are searching for scapegoats. The finger has been pointed first at the West’s modern enemy, the Russians, and next at its more ancient one, the Jewish people.

In one of its final acts, the Obama government rebuked the Israeli government by refusing to block a UN motion condemning settlements in the West Bank. This marked a striking change in stance towards its longstanding ally. It was backed up by a hostile speech by outgoing Secretary of State John Kerry, clearly blaming Israel for continuing hostilities and warning its leaders that “it can be Jewish or it can be democratic” but not both.

Kerry spoke of his disappointment at being unable to facilitate a peace agreement in the Israeli-Palestinian conflict. Instead of recognising any failure on his own behalf, he laid the blame entirely at the feet of the Israeli government. In burdening Israel with his own disappointment, Kerry unwittingly exhibited one of the West’s most ingrained habits of understanding human life and history: anti-Judaism.

David Nirenberg outlines this millennia-old mode of thought in his 2013 book Anti-Judaism: The History of a Way of Thinking. Anti-Jewish sentiment, he argues, is a persistent and deeply ingrained mode of thought in Western tradition. Anti-Jewish arguments have been used in successive historical periods as a satisfying explanation for the failures and evils of the human world. Like the scapegoat of the primitive world, the Jewish people are easy victims who are somehow responsible for the unsatisfactory nature of existence. They are burdened with the responsibility for failures, from the inability of a nation to achieve its potential to the failure of an individual to realise his desires.

Anti-Judaism survives, Nirenberg writes, because failure and disappointment are constant themes in human history. We are forever frustrated by our inability “to achieve the proper human relation between law and love, thing and person, letter and spirit”.

And from the time of the ancient Egyptians who resented their Hebrew neighbours until the present day, we’ve been tempted to call the failure to achieve that ideal “Judaism”.

Kerry’s speech shows the hallmarks of this tendency, in the stubborn refusal to reflect on his own ideas about Israel. Instead of offering an alternative critique or attempting to address the sheer complexity of the conflict, the Secretary of State prosecutes the case against the Jewish state. He demonstrates just how powerful anti-Judaism can be as a theoretical framework that makes sense of an unbearably complicated and incomprehensible world.

With some notable exceptions, including the clear and robust support of this newspaper, much of the mainstream media has joined with the UN to criticise the actions of the Israeli government. The reception of the global mainstream media to Kerry’s speech has been overwhelmingly favourable. It is almost impossible to find any rational arguments supporting the continued existence of the disputed Jewish settlements. Any support is regarded as ipso facto evidence of an extreme right-wing, ultra-religious and belligerent stance.

Rational arguments for the settlements exist, as the Jewish Journal’s David Suissa powerfully argued on this page on Monday. The widespread failure to even consider these arguments is evidence of our collective failure to produce a critique of anti-Jewish sentiment. At the very least, the settlements can be seen as an acknowledgment of the failure of the peace process, and a way of ­deferring the inexorable trajectory towards conflict.

Recognising anti-Judaism does not mean denying Palestinian suffering or ignoring Palestinian victims. But it does mean acknowledging some hard truths, including the fact dedication to “the victim” is often a facade that allows us to denigrate others. As philosopher Rene Girard says, “The victims most interesting to us are always those who allow us to condemn our neighbours.”

Kerry’s perplexity and irritability at being unable to impose his dream underscores the naive idealism of the West.

Blind to the sufferings of the rest of the world and fed on a diet of romantic optimism about human nature, the West sometimes pretends to prosecute on behalf of the victim, but in reality perpetuates the oldest and most ingrained of our prejudices.

The Obama government’s refusal to block the UN vote indicates that the tide of opinion is turning against Israel. As a nation it is increasingly criticised as aggressive, suspicious and closed. Our modern world, so deeply hostile to religion, mocks its religious traditions and accuses it of persecution in the name of God. The existence of Israel is seen as a blight on the modern, secular, liberal fight against all oppression and persecution, and on behalf of all victims.

In Australia, popular support is growing for Kerry’s dictum that there can be no such thing as a Jewish democratic state. Anti-Jewish sentiment is summed up in this comment from an Australian website: “There is no place in a harmonious and peaceful world for such rogue arrogance, destabilisation and inevitable, reckless provocation.” Once again, the Jewish people are being told the world has no place for them.

The 11th-hour blame-shifting by the Obama administration lays the groundwork for renewed anti-Judaism. Kerry wants to be remembered for his tireless advo­cacy for peace and tolerance. Instead, his legacy is likely to be an escalation in hatred and renewed, legitimised violence. The only barrier to a new period of persecution will be “the small minority that dares to oppose”.

Without that small minority, we can expect an intensifying, contagious and increasingly unified cry to deny the state of Israel.