Submission to the Attorney General on proposed reforms to the Racial Discrimination Act 1975 on behalf of 212,480 Australians

UPDATED: 29 APRIL 2014:

I have just despatched an amended submission to Senator The Hon George Brandis QC; Attorney-General; Minister For The Arts, in response to his interest, expressed in his Media release on 25 March 2014, in hearing from all stakeholders on the proposed reforms to the Racial Discrimination Act. 

The amended submission adds the Aboriginal Legal Service of WA (Inc) to the list of organisations endorsing it, so we now speak on behalf of over 212,000 Australians.

Thanks to Suresh Rajan, President of West Australians for Racial Equality, who showed my draft submission to many stakeholders, including the ALS and won their endorsement.

The following are excerpts from our submission.

Follow this link to download a full copy of the submission (in pdf format).

1.   Racial Discrimination should be Unlawful

Australia is a wonderful, young, free and open nation made up of diverse cultures.

...racially-discriminatory public acts undermine the harmony in Australian society, exacerbate suspicion and mistrust, and can lead to violence as well.

Many Australians are within living memory of personal or family experience of inter-ethnic violence, murder and even genocide. Certainly many indigenous Australians and Jewish Australians have such fresh memories, as do members of other ethnic groups in Australia.

We stress that psychological damage should not be underestimated or belittled in comparison to violence or threats of violence. Survivors of the Holocaust who have witnessed the most horrific acts of violence imaginable, often describe the humiliation that they experienced as more destructive than the violence. The humiliation was often the cause of a loss of will to survive.

Australian Psychological Society president, Associate Professor Tim Hannan, recently said there was compelling evidence that racial discrimination adversely affects people's mental health and well-being.

''We have to balance the right to free speech with our obligation to protect the vulnerable from racial and ethnic prejudice...'' ...

Studies have shown that people who experience racism have poorer self-esteem, higher levels of psychological distress, and conditions such as anxiety and depression.

...Genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it.

The first ...stages of genocide are ... varying degrees of racial discrimination which, if allowed to prevail, can lead to ethnic violence and ultimately genocide. DENIAL (in the face of overwhelming evidence) is the eighth stage that always follows a genocide. It is among the surest indicators of a motivation to perpetrate further genocidal massacres. It is clearly imperative to nip in the bud any of these behaviours.

Racially-discriminatory public statements are therefore, to some Australians, reminiscent of events that are part of their most horrible memories. Their impassioned response, critical of the proposed reforms ...are motivated by a deep-seated fear that we may get the balance wrong (between freedom of speech and protection from racial discrimination) and therefore risk history being repeated.

To maintain community harmony and protect Australia’s freedom and openness, it is essential to have effective legislation in place to prevent divisiveness and hatred from being disseminated, and it is critical now for Australia to get the balance right in the proposed review of the Racial Discrimination Act.

2.   Australian Parliamentarians are committed to make Racial Discrimination Unlawful

In May 2013, Australia’s Prime Minister (then), the Opposition Leader (who is now the Prime Minister), and over a hundred Australian Members of Parliament across the political spectrum, expressed their commitment and dedication combatting hatred and discrimination, by signing The London Declaration on Combating Antisemitism.

The Declaration includes commitment to... “effective Hate Crime legislation …” ...

Thus, any significant weakening of the Racial Discrimination Act 1975 would contravene the Declaration, so widely endorsed by the current Prime Minister and over a hundred Parliamentarians across the political spectrum less than 12 months ago.

3.   Limits on Free Speech

Much of the public discourse in relation to the proposed reforms to the Racial Discrimination Act 1975 is focussed on a desire to the protect freedom of speech. However in no civil society is freedom of speech absolute. It is not a “black or white” question, but rather a matter of striking the right balance.

...The matter to be reconciled is not WHETHER, or not, there should be freedom of speech, but: WHERE should we place the boundary between free speech and speech that may harm our society?

4.   BOTH Litigation and Education are needed

Some commentators suggest that the best way to counteract racially-discriminatory public statements is by refuting such statements in public debate: exposing factual errors; denigrating unwarranted hatred and divisiveness; educating the wider community; and emphasising the common humanity of all citizens. WE COULDN’T AGREE MORE!

Education promoting community values of comprehensiveness, inclusiveness, acceptance and respect are essential, and certainly the best way to defeat the damaging influences of racially-discriminatory public statements. However while this is the BEST way, it is not, and should not be the ONLY way. As in cases of libel, the damage is often done before any response is possible.

Members of the group that is the subject of racially-discriminatory public statements, and of the wider audience through the Australian community, may include persons who are too young or too ill-informed (and therefore not adequately-equipped) to distinguish fact from slander; or they may not have the resources or eloquence to refute the hateful statements.

... proponents of the argument that hate speech should be defeated in open public discourse, to the exclusion of legislative protection, are wrong. It is not enough to rely on free speech alone. This is why it is necessary to also enact legislation that clearly 

• demarcates acceptable public discourse from corrosive and damaging expressions of unwarranted hate;
• provides legal recourse to prosecute perpetrators of the unlawful behaviours; and thus
• prevents bigots and hate-mongers from disseminating their corrosive views through our society.

5.   What is “Reasonable”? The Community Standards Test.

The public discourse on this matter suggests that some Australians are motivated to support a weakening of the Racial Discrimination legislation and promote greater freedom of speech, because they consider that the judgement of what was allegedly offensive or insulting in the Andrew Bolt case was made from the point of view of the group that was the subject of the public statements, not from the point of view of a typical Australian...

...we accept that a clarification of the standard by which a contravention should be judged is a useful revision of The Act, provided that it relies on a community standard that clearly doesn’t include any discrimination or prejudice towards any ethnic segment of the Australian population.

However we submit that many other parts of the Exposure Draft fall dangerously short of providing acceptable protection against the corrosive influences of racially-discriminatory public statements.

...the draft, in seeking to promote freedom of speech ...has thrown out the baby with the bathwater.

The definitions of unlawful behaviours in the Exposure Draft are too narrow, and of the exclusions is far, far too wide.

6.   Unlawful Acts

We submit that the definitions of unlawful acts in the Exposure Draft are too narrow.

Insult ...should remain an unlawful act, albeit with the clarification of a Community Standards Test...

Offend ...should remain an unlawful act, albeit with the clarification of a Community Standards Test...

Humiliate We ...emphatically submit that this should remain an unlawful act, albeit with the clarification of a Community Standards Test ...

Vilify

We applaud and support the proposed addition of vilification to those acts that shall be unlawful, because it specifically describes acts that are intended to disseminate defamatory, slanderous, malignant and hateful views through the society, and prevention of such acts should be the primary focus of racial discrimination legislation.

However the definition of “vilify” in the Exposure Draft is very narrow... the definition should be broadened to encompass the commonly accepted meaning and the definitions included in similar State legislation.

Intimidate

We support the proposed retention of intimidation amongst those acts that shall be unlawful.

However the definition of “intimidate” in the Exposure Draft is very narrow...We submit that the definition should be broadened to encompass the commonly accepted meaning and the definitions included in similar State legislation.

7.   Exclusions

...The proposed Exposure draft excludes “…words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”

[These] exclusions are so broad that they may include virtually every act, and that such exclusions effectively render the entire legislation impotent.

There is no reason that the legislation should not require that excluded acts to be in reasonable good faith and that the person committing the act has taken reasonable action to check the veracity of the publicly-stated allegations.

... the revised Act should require exclusions to be

• done reasonably and in good faith;
• for a genuine purpose in the public interest; and
• fair comment that is an expression of a genuine belief held by the person making the comment.

Follow this link to download a full copy of the submission (in pdf format).

Friends of Israel Western Australia - Autumn 2014 Newsletter

Download the latest Newsletter here (pdf file).
Edited by Judith Lewis; typesetting by Angela Driver.

When and how Bob Carr came to the conclusion that the establishment of the state of Israel is a mistake

From The Australian, 19 April 2014, by Gerard Henderson:

...The date was September 17, 2001. The occasion was the dinner to announce the winners in the 2001 NSW Premier’s History Awards. Carr was premier of NSW at the time and was ­delighted that the famous American documentary maker Ken Burns had accepted his invitation to present the prizes at the dinner in Sydney.

It turned out that Burns was a last-minute scratching from the event. It was around a week since al-Qa’ida’s terrorist attacks on the US on September 11, 2001. Air transport from the US had been disrupted.

Moreover, word got around the audience that Burns was not keen on flying in the wake of what Americans term 9/11.

At the start of the dinner Carr came over to talk to me. I expressed commiserations that his guest Burns was a non-starter. To my surprise, Carr seemed quite shaken by the 9/11 attack. 

He said to me that he had now come to the conclusion that the establishment of the state of Israel in 1948 had been a mistake.

Carr stated his belief that the Arab world would never accept the creation of a Jewish state and that Islamists would continue to target Western nations.

From around late 2001, I noticed a change in Carr’s attitude towards Israel.

There was also the political factor. There are numerous references in his diary to the importance of the Muslim Arab vote, especially in Sydney’s western suburbs.

Carr is ready to bag what he terms the “Israel lobby” in Australia and to identify such AIJAC figures as Mark Leibler and Colin Rubenstein as allegedly exerting improper influence.

But he offers no criticism of such an entity as a “Palestinian lobby” while acknowledging the lobbying of Muslims and non-Muslim Arabs on Australia’s foreign policy towards the Middle East.

Diary of a Foreign Minister indicates that Carr is somewhat unhinged in so far as Israel is concerned. He cannot accept that Gillard’s long-time support for Israel reflects her real position. And he believes that talented Liberal MP Josh Frydenberg is incapable of writing an op-ed article of his own volition — he has to be instructed to do so by “the Melbourne-based Israel lobby”.

Diary of a Foreign Minister is very much the real Carr. As such, his obsession with the alleged Israel lobby is of more concern than his obsession with the nutritional value of organic steel-cut oats.

1,000 Jurists to EU: Settlements are Legal

From A7, 8 April 2014, by Gil Ronen:

Mammoth petition delivered to Catherine Ashton states: '1967 lines' don't exist.

A mammoth jurists' petition delivered to European Union foreign policy chief Catherine Ashton states that the EU is wrong in holding that Jewish communities in Judea and Samaria are illegal, and that the term “1967 lines” does not exist in international law.
The letter is signed by over 1,000 jurists worldwide.


Among the signatories are former justice minister Prof. Yaakov Ne'eman; former UN Ambassaor Dr. Meir Rosen; Britain's Baroness Prof. Ruth Deech, Prof. Eliav Shochetman and Prof. Talia Einhorn. They include legal scholars from the U.S., Australia, Belgium, Bolivia, Brazil, Canada, Switzerland, Chile, Czechoslovakia, Greece, India, Ireland, Italy, Mexico, Malta, Holland, Norway, New Zealand, Peru, Singapore, Taiwan, South Africa, Sweden and, of course, Israel.


The man behind the initiative is Dr. Alan Baker, Israel's former ambassador to Canada and legal adviser to the Foreign Ministry, who currently heads the International Action Division of the Legal Forum for Israel.


Baker was also a member of the three-person committee headed by former Supreme Court judge Edmond Levy, known as the Levy Committee, which pronounced that Judea and Samaria were not occupied territory.


Dr. Baker explained to Arutz Sheva that there is “no such thing” as the 1967 lines. “There never was such a thing. The matter of the borders is on the agenda of the negotiations, The EU cannot dictate a subject that is on the agenda of the negotiations. The pre-1967 lines are (1949) armistice lines. These are not recognized lines or security lines. In the Oslo process, it was agreed between us and the Palestinians that the matter of borders will be negotiated. The term '1967 lines' does not appear anywhere in our agreement with the Palestinians, therefore it is a legal and factual aberration to determine that these are our lines.”


"The second thing is the determination that the settlements are illegal according to international law. It is true that most of the world thinks so, but that does not make it true legally. Legally, the clause in the Geneva Convention that they use to say that settlements are illegal, was not intended to refer to cases like our settlements, but to prevent the forced transfer of populations by the Nazis. This is not relevant to the Israeli settlements.”

Migrants call on governemnt to dump race hate reforms

From The Australian, April 17, 2014, PATRICIA KARVELAS:

THE 190 ethnic communities of NSW have urged the Abbott government to back down on its proposed reforms to remove the offence provisions of the Racial Discrimination Act.

In a submission, the Community Relations Commission of NSW has called on Attorney-General George Brandis to withdraw his draft freedom of speech reforms to Section 18C.

Chairman Vic Alhadeff called for the government to call a public inquiry as comprehensive as the three inquiries the lead to the introduction of 18C by the Keating government 20 years ago.

“The process which led to the exposure draft was completely inadequate. It consisted of limited private consultations behind closed doors, and the final product doesn’t come close to reflecting the concerns expressed by many community groups about the need to maintain existing protections against racism...”...

Former prime minister Paul Keating told The Australian yesterday that the Abbott government was following in John Howard’s footsteps by planning to legislate the “right to confront people in the respect of their race or creed”.

Section 18C of the act makes it unlawful to offend, insult, humiliate or intimidate on the grounds of race, colour or ethnicity. Under the draft proposals put forward by the Abbott government, the government would replace 18C with provisions making it unlawful to ­vilify or intimidate others on similar grounds, but with broad exemptions, ­including the right to offend.

“Although the government has claimed that its proposals would enhance protections against racism, its own supporters have been unanimous in stating that the exposure draft would be almost tantamount to a full repeal...” ...

The CRC says that with approximately 25 per cent of people in NSW born overseas and another 25 per cent with at least one parent born abroad, it had heard from a large number of ethnic and indigenous communities who opposed to the draft reforms, while not one had 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”.

Bob J Carr: "...completely out of his mind.”

From the SMH, 11 April 2014, by Peter Hartcher:

A legend in his own mind.
Illustration: michaelmucci.com

...Carr’s new diary reveals a Don Quixote figure, where the great struggles and heroic deeds take place in his imagination.
Consider Carr’s thoughts as he sat at the table with the leaders of all the world’s major powers at the Group of 20 summit in St Petersburg last year. Carr, though only a foreign affairs minister among leaders, was representing Australia because his leader, Kevin Rudd, was immersed in an election campaign.

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Carr summarises comments by Russia’s Vladimir Putin, the IMF’s Christine Lagarde, China’s Xi Jinping, India’s Manmohan Singh, Japan’s Shinzo Abe, Canada’s Stephen Harper, all speaking about the world economy.
“I look around,” writes Carr. “Twenty leaders here. Parliamentary careerists, technocrats, political buccaneers, clan chieftains, dynastic heirs. As Gore Vidal remarked looking down on the US Senate, ‘I cannot feel humble.’ Interested, curious, of course. Just not humble'.”
The great man’s attention wanders. He thinks about what might be cooking for dinner. He sings in his head a 1939 song, Watercolour of Brazil. It never fails to lift his spirits, we learn.
“Slightly delirious, I indulge a fantasy of the world leaders moving from behind these tables, linking one another in a conga line and led by Putin – with Obama clutching his hips…
“How disrespectful. But there’s little to inspire respect in the contributions I had just heard. Having privatised three big enterprises and fought excessive union claims and struggled with State budgets I didn’t feel that any here – amiable democrats though many of them are – could teach me much.”
Not only is our hero the equal, or perhaps the better, of the leaders around the table, he goes on to diminish their achievements in attaining the leadership of their nations:
“It’s not that hard to get here, to this table. A bit of application, a bit of luck, some patience.”
These lesser leaders, you’d think, were surely lucky to have a man of Carr’s calibre at the table, available to offer his counsel....
...Surely Carr, representing the incoming chair country, was preparing to summon his wisdom and experience to help guide the group purposefully towards their agreed goal of structural reform?
So much for what went on inside Carr’s head. This is what he actually did: Nothing. He said nothing. He did nothing. He went to dinner.
When the summit was over, the leaders preparing to depart, our hero had another chance to demonstrate his mastery. The international media gathered for the press conference that is always held by the incoming chair country, in this case Australia. Here was a chance for Carr to contribute towards the G-20 agenda for the year ahead, with ideas so compelling that the group would be sure to embrace them.
What did Carr say? Nothing. He cancelled the press conference and left St Petersburg without explanation. He was mute. He had nothing to offer. No ideas, no words, not even a conga line. That anticlimax is not in his diary, but that was what happened in the real world.
Yes, the real world, where he was just a discarded provincial leader who was called from retirement to be an unthreatening stopgap for a prime minister in crisis.
Julia Gillard asked Carr to step in as foreign affairs minister to fill the vacancy created by Kevin Rudd when he resigned to challenge Gillard. Carr was plausible as a foreign affairs front man. In truth, he was only ever the acting minister for foreign affairs. And acting was as good as it got. His diary, fittingly, opens with a scene from the theatre, unwittingly setting the tone for Carr’s year-and-a-half of going through the motions, a baritone thespian with a void at his centre.
Anticlimax is central to the Bob Carr story. All the great powers, the people, the institutions and the issues of the day are in place, and Carr enters the scene, but time after time he leaves without achieving anything. It is a non-event.
For instance, he records his first meeting as foreign affairs minister with the then US Secretary of State, Hillary Clinton. Carr is an insatiable reader of US history. Now he has his chance to contribute in a serious way. How does he make the most of his big chance? In this case, at least, the minister for non-events has a touch of self-awareness, almost a moment of that alien emotion, humility.
“I was somewhat nervous, aware of my threadbare credentials. About to see a ‘world-historical figure’ with no obvious or specific or urgent mission. That’s what made me anxious. Where was the beef? Nothing, I feared, to render us interesting.”
When he is given the chance, Carr has nothing important to say.
Carr’s diary validates Julie Bishop’s critique from opposition. She called him “the ultimate foreign policy tourist”.
It was the tourism aspects of the post that most excited him – going to exotic places, meeting famous people, writing about it in his diary.
He confesses to his diary that he was so thrilled when Henry Kissinger invited him to go camping in the woods of Bohemian Grove that he had to take two tranquillisers to contain his excitement. 
In Carr’s mind, like that of the deluded knight Don Quixote, the great struggles are ones that don’t seem very epic to anyone else. 
Probably the most prominent recurring theme is jet lag, a matter of such commentary you’d think Carr was the first person ever to fly from Sydney to New York and struggle with the effects on his sleep.
And he’s so preoccupied with his diet and exercise regimes that he comes across as a 20-year-old. “My ambition,” he tells us, is to “have a concave abdomen defined by deep-cut obliques.” We’re left wondering, however, what his ambition for Australia might have been.
As one of the characters in Don Quixote remarks: “There is no book so bad...that it does not have something good in it.”
...[Carr] was co-founder of Labor Friends of Israel; today he is a leader of pro-Palestinian opinion in Labor. His shift reflects the surging Muslim population in Western Sydney. 
Labor’s NSW Right faction, Carr’s factional home, is now pro-Palestinian because electoral arithmetic demands it.
...The worst of the diary? Is it the tantrums, the bitter complaints about having to travel business class rather than first class?
For Labor, it’s the betrayal of a man who was given everything by the party.
A Labor MP, Anthony Byrne, says: 

“If you ever wanted an example of the narcissism, self-indulgence and immaturity that ran through the Labor party during its six years in government, Bob Carr is it.”

For Julie Bishop, it’s Carr’s betrayal of the confidences of foreign leaders. Asked to justify this, Carr replied: “When there was a Wikileaks revelation and one from Edward Snowden, it revealed to the world because of lax US security, lax US security, candid American comments on Australian politics and personality….I don't think we can be too precious about this.”
The US and Australian governments have called the Wikileaks founder, Julian Assange, a criminal. The US charges Snowden with treason. Did Bob Carr really mean to equate himself with alleged criminals and traitors?
There is a line in Don Quixote that explains the deluded knight’s state of mind: 

“Finally, from so little sleeping and so much reading, his brain dried up and he went completely out of his mind.”

Bob J Carr: First-class whinger in silk pyjamas

From: The Australian, April 12, 2014, by: CHRIS KENNY:

Bob Carr was drawing Labor back into its own divisions, preoccupation with marginal issues and love for the trappings of power this week. 

Picture: Bradley Hunter Source: News Corp Australia

BOB Carr knows the majesty of his voice and the guile of his words ...

The party of the workers has donned the first-class pyjamas and flown away from the suburbs to some climate change conference or policy symposium.
Welcomed by many as a masterstroke, Carr's appointment as foreign minister was always going to cost Julia Gillard more than she gained.
Under siege in 2012, Gillard wanted a foreign minister who might have the gravitas to withstand covert assaults from Kevin Rudd. She got that, but it came with a soaring ego, diplomatic inexperience, personal indulgence and a lack of loyalty.
For Carr it was an irresistible gift, an autumnal star turn on a global stage. Soon after he took the job Carr invited me to dinner to pick my brains. (I worked more than five years as media adviser and chief of staff to the nation's longest serving foreign minister, Alexander Downer.)
I was hoping to discern a sense of Carr's foreign policy priorities. Carr ...conveyed no sense of how he wanted to shape our international relations. He struck me as a dilettante and this impression was reinforced by indiscreet snippets from diplomats in subsequent months.
Carr wasn't in the job long enough to make the crucial transition from speaking as a commentator to messaging as a practitioner.
He often attended interviews with large bundles of notes to guide his answers. Perhaps his attitude wasn't at all surprising; he realised the government was terminal and he had barely 18 months to sample global diplomacy rather than shape it.
His diaries reflect a good deal of this realism (although surprisingly he seems to have become convinced Labor could win once Rudd returned).
...Those things Carr claims as achievements — such as the small arms treaty, deepening relations with China and India — were set in train long before he landed the job, as was the crowning glory of Australia's election to a temporary seat at the UN Security Council.
Carr will cherish this slice of history but it belongs to Rudd and owes much to the prostitution of our aid budget and capitulation on Israel (the one policy on which Carr had a strong impact).
His thinking was guided by what was acceptable in Europe and what was politically saleable in the Muslim-influenced electorates of Sydney. It is disturbing to read Carr describe Australia’s position as “shameful” and describe his efforts to undermine Gillard on the issue.
He bristles at aligning with the Likud ruling party in Israel and saw no folly in rewarding the Palestinians even before a return to the negotiating table without preconditions.
Carr makes much of the Israel lobby, which is active, but to suggest it has undue influence is somewhat misleading.
Australia's position on Israel has tended towards a bipartisan consensus on a continuum that Carr broke and Julie Bishop has corrected.
Remember Carr was crass enough to denounce Israeli settlements as illegal when speaking from the steps of the Lakemba mosque.
And he sent senior diplomats to Tehran to join a meeting of the Non-Aligned Movement.
As foreign minister he was pained by being out of step with the overwhelming majority of UN nations — something he shouldn't have given a moment's thought.
It is illuminating that Carr was motivated to act on Israel while issues more vital to our national interest went begging.
...Carr travelled much more extensively than was required, tweeting selfies with his interlocutors. He had the perfect pretext, with the UNSC bid making a visit to any country or forum justifiable in the quest for votes. But it often looked like tourism.
Carr's diary inexplicably reveals his peccadillos, as well as gripes about his jetsetting lifestyle.
He can't expect anything but mockery and resentment from voters — which won't trouble him now — and reflected harm for the same ALP that gave him this privilege.
In recent decades Australia has been well served in the foreign ministry by Bill Hayden, Gareth Evans, Downer, Stephen Smith and even Rudd.
...We are left with the inescapable conclusion that Carr realised he would be the least consequential of these figures.
His ...diary is a transparent attempt to exult himself into the company of world leaders and claim his place in diplomatic history ... [but] diminishing his reputation and the fortunes of his party ....