Repealing S.18(C) of the Racial Discrimination Act

Submission to Attorney General for Australia - S.18(C) used as a weapon by vested interest groups


Freedom of speech (Repeal of S. 18C) Bill 2014

Racial Discrimination Act

Submission by Trevor Poulton to SENATE ENQUIRY


Attorney General for Australia

Canberra ACT 2000

30 April 2014

Submission by

Trevor Poulton

Solicitor, Melbourne

 Many Australians in this era of 'political correctness' have come to trivialise the value of freedom of speech. This does not portend well for democracy in this country.  I respect the fortitude of the Australian federal government in giving the public an opportunity to speak its mind on proposed amendments to Section 18(C) of the Racial Discrimination Act.

Sec 18(C) represents an extreme intervention by the state. Not even calm debate is tolerated under Sec 18(C).  One merely has to say something that someone else finds offensive or insulting for a breach to occur. 

In reality, Sec 18(C) is not about suppressing abusive behaviour by out-of-control thugs on trains, as there are criminal and civil offences that deal with such aberrant conduct.  Sec 18(C) is about social engineering and has required the public to surrender rights to what had been free political expression prior to it being legislated in 1995. And it reflects much desperation. In Europe, offences similar to Sec18(C) have evolved into hate-speech crimes with many people being locked up or having their reputations destroyed for saying the 'wrong' thing.  

The presumption is that the section is intended to be used as a shield.  However, for those powerful interest groups who wish to exploit the section, it has also been proven to be a convenient weapon.  The amending legislation needs to recognise that legislation that is used to hush up citizens, can lead to unjust outcomes, and hence the section needs to be sufficiently narrow to limit the risks of members of the public being victimised as a result of thought-restraints.  Certainly, the proof of an offence needs to be based on objective evidence in line with traditional common law jurisprudence which has generally been considered fair, and not merely subjective risking the creation of an immoral catchment for innocent parties not realising they have transgressed the line into ‘hate-speech’. 

The current legislation is oppressive, and it is obvious that the public is in a constant and unnecessary state of tension with discussing controversial issues.  Citizens now tend to punctuate their conversations with, ‘I am not anti-gay, but ...’, ‘I believe in climate change, but ...’, ‘I am not racist, but ...’.  And whilst trying to be accommodating, are laughed at by others who sense a thought crime.

Australians have generally subscribed to the idea of multiculturalism (as vague as it is), but I doubt it was ever imagined in the 1970s that to achieve a ‘multicultural state’ there must be a surrender of numerous rights, and a dismissal of many values that had spurred Australia on to become one of the great egalitarian democracies it has been up to recent times. We are heading down a track where democracy could be forsaken for multiculturalism, and this trade-off could produce much societal strife.

Media, most particularly the ABC, has attempted to trivialize the reform by regularly opining the federal government has more important issues on its plate such as the economy.  Notably, the ABC has given little coverage of the actual issues at stake. What could be more important than a debate about free speech, as legislation that seeks to moderate free speech obviously has an impact on the cultural and even economic direction of our society. 

The amending legislation in my view addresses these issues. 

Below are examples that draw attention to abuses arising out of the current legislation that justifies the proposed reform. For too long Section 18(C) of the Racial Discrimination Act has been used as a weapon of the few, and not just a shield, to oppress free speech in Australia.

According to the media, Premier Mike Baird of NSW has recently urged his federal colleagues to back away from proposed changes to racial discrimination law, declaring: ‘If it's not broken, don't fix it.’ I am not convinced that Premier Baird has considered this matter in any serious detail.  The fact is the current legislation is broken.  It unnecessarily creates victims, and has a distorting impact on political, social, cultural, religious, artistic, academic and scientific expression. The proposed reform legislation profoundly acknowledges this.  

Examples of Sec 18(C) Used as a Weapon

I intend in this submission to focus on the negative impacts on individuals and children of Sec 18(C), rather that the principals of free speech that have found much expression from the Ancient Greeks through to libertarianism ideals of the 20th Century and websites such as moderated by Brendan O’Neill.  The following are 5 studies which I hope might shed light on this.

  1. Waleed Aly’s racist attack on ‘white people’
  2. Adam Goodes make a public example of a child
  3. Lobby groups – using Sec 18(C) to socially engineer debate in Australia.
  4. Sec 18(C) and the NSW government response
  5. Members of Parliament – juggling issues of racism and child abuse and ethnic aspirations through Sec 18(C)

 Each section refers to a document annexed to the back of this submission, and needs at least to be perused to appreciate the full significance of the comments.


1.     Waleed Aly’s racist attack on ‘white people’

See article - Brandis' race hate laws are whiter than white (Annexure ‘A’)

Waleed Aly's views expressed in the article are a product of S18(C).  

In defending Section 18(C) he states:

  • ‘If I may speak freely – plenty of white people (even ordinary reasonable ones) are good at telling coloured people what they should and shouldn't find racist.’  
  • ‘White people are not non-Asians or non-blacks. They aren't “ethnic” as the term is popularly used.’

Aly has sufficient public and media support to make his comments on the basis of shielding minorities under Sec 18(C), but in fact used the section to justify an attack on the white majority of Australians.  His first statement is clearly racist. Whilst some white people may be overtly racist, it is not something that one commonly confronts.   However, activists such as Aly do appear to be more concerned about what people think, rather than what they do.  What is the basis of Aly’s bigoted claim that so many Australian’s, even ethical ones, go around telling ‘coloured’ people what to think.

Aly’s second statement is ‘offensive’ and ‘insulting’ because he deliberately negates the fact that the vast fabric of white cultures thriving in Australia are recognised as ethnic, including: Celts, Anglos, Mediterraneans, Macedonians, Dutch, French, Germans, Italians, Greeks, Nordic Scandinavians and Slavs, and so many more. It is possible, that Aly is really aiming Section 18(C) at Anglo-Australians, but whilst trying to appear to not cross that line, he has opted to demonise all whites as a block.  The illustration in the article insidiously identifies ‘white people’ with Klu Klux Klan mentality, and such is racially inflammatory.  He hypocritically betrays the objective of Sec 18(C) that is supposed to guarantee mature and sensitive opinion-making.  

In the article, Aly treats whites as a homogeneous group of people who are not vulnerable to racial vilification, and neither need nor deserve protection from vilification (although people who are not white are so, and do so).   

I would suggest that Waleed Aly was in breach of the Sec 18(C) by his comments. However, Australian’s do not have a tendency to draw on the section, and generally tend to take such offensive comments on the chin.  And that does reflect a tolerance of opinion that has been a part of the democratic ethos of our society for many decades, prior to multiculturalism and since.  Aly has exploited Sec 18(C) as a weapon to attack and demoralise ‘white Australians’.  He believes by doing so he himself has not offended the section.

Read more:

2.         Koori Brownlow Medallist Adam Goodes makes an example of a white child.

Article - Racial Discrimination Act changes will hit vulnerable: Adam Goodes (Annexure ‘B’)

The article relates to the incident at an AFL football match where Goodes pointed out a child close to the boundary fence whom he heard call him “ape”.  He became demonstrative and the child was soon removed by the police and interrogated for a couple of hours.  In the article Goodes is quoted as saying, ''Under the old legislation I still didn't charge her. I accepted her apology and that was it. That was my choice.''

However, the child's apology in fact included the statement that ‘she did not realise she was being racist’. In Victoria on the Channel 9 Footy Show hosted by Garry Lyon, and previously by Eddie McGuire, virtually every week or two for over a decade until soon after the incident, AFL footballers have been identified with ape-like behaviour through look-alike photos, YouTube videos, mimicry and comments. Viewers have laughed hysterically at the comparisons. It is not only conceivable, but likely, that the young spectator merely adopted the expression from the show, and called the footballer an ape in the spirit of the game – not because of his ancestry, but because he is dark and hairy with a beard. 

The photo, which I googled, is one of a number of images of Garry Lyons, host of the Footy Show, being compared by the panel to an ape-like male because of his dark skin and hairiness.

Yet, as Goodes himself claims, and presumably based on legal advice, he could have had the girl charged under Section 18(C) because he took offence, and she would have no defence.

Goodes and the Media and the AFL were fired up during the Racial Indigenous Round when the incident occurred. Regardless of their motives, they quickly discovered a sacrificial lamb to make the round shine brighter.  A fundamental rule of the AFL and our culture generally has been to not pick on kids.  Adam Goodes and the Media and the AFL ought to have left the 13 year old white kid out of their politicking.

Goodes has got much leverage out of the incident, and it possibly even contributed to his Australian of the Year award.  If Goodes wants to oppose amending Section 18(C) of the Racial Discrimination Act he needs to alert the public to something of substance, but not continually make reference to the experience as if the 13 year crowd heckler had altered his life. 

Despite much objection to the vilification of the child in the community, Adam Goodes continues to use her as a weapon, a white child effigy, to advance his own ethnic causes. And he hides behind Sec 18(C) to do that. He claims to be a victim under the legislation.  In fact, if one looks at this with the eye of a parent, it could easily be argued that the girl has become a victim of the legislation.

Read more:

3.         Lobby groups – using Sec 18(C) to socially engineer debate in Australia.

The debate on Lateline on 14/3/2014 Friday Forum, between Tim Wilson the Human Rights Commissioner, and Jeremy Jones from the Australia, Israel and Jewish Affairs Council was enlightening as it transfixed the debate over Sec 18(C) on 'Holocaust Denial'.

Jeremy Jones made it clear that the Jewish lobby is totally opposed to the Australian public being permitted to debate alternative explanations of events from World War 2 as they relate to the ‘holocaust’ and the creation of Israel etc, and that diluting Sec 18(C) could open the door to such debate.  He relies on the Frederick Toben case law precedent to maintain that it is now illegal to raise any doubts about the narrative as such expression is now deemed Anti-Semitic.  His position is that anyone who challenges the narrative is Anti-Semitic.  This is consistent with the position in Europe where similar laws to Section 18C have been enacted as criminal offences.  

The debate was in fact one of the first ‘Sec 18(C)’ shots fired at the proposed reform, making it clear that particular ethnic and political groups have their own vested interests in maintaining the section as is.  Andrew Bolt has made the point that the section actually is divisive, and the Jewish lobby’s stance, for reasons elaborated on later, probably best illustrates Bolt’s concern.  

It is simply because the Jewish lobby is so vocal on the proposed amendments, that I will focus on their exploitation of Sec 18(C) to further illustrate my concerns.

 4.         Sec 18(C) and the NSW government response

Article - Barrister warns Barry O'Farrell of Holocaust denial risk under George Brandis'
(Annexures ‘C’, ‘D’ and ‘F’)

Arthur Moses, Barrister was required to provide an advice to the former Premier of NSW Barry O'Farrell relating to Sec 18(C).  Mr O’Farrell sought to expend taxpayers’ money on a legal brief relating to impacts of the proposed amendments to Sec 18(C) on the ‘Holocaust denial’ debate, and not broader issues as well. [Hence, I, a mere citizen, can surely be forgiven for narrowing my focus on the debate over publicly debating the Holocaust narrative, to further illustrate more general points I am making. Please bear with the writer.]

The advice makes the predictable points that it could liberate the debate on the Holocaust in the public domain.  However, the advice then turns into a plea. The brief therefore needs to be taken in context of some self-interest by Mr Moses who is presumably Jewish, and also Mr O’Farrell whose state fully embraces teaching ‘Holocaust History’ in schools.

Mr Moses is quoted in the article that the “new legislative right to engage in racial vilification in the course of public discussion would, for instance, open the door to HOLOCAUST deniers to publish their opinions on websites and on social media in the course of 'public discussion'.''  For some reason, Mr Moses has chosen to ignore the fact that a multitude of websites and social media entertain the Holocaust debate.  The horse has well and truly bolted on that one!

Facebook Debate – Annexure ‘F’

As a social political experiment, I opened up my Facebook Page in March 2014 to a debate on the Holocaust from all sides, without censorship. The posts include over 4,000 threads over 5 weeks, and include Jews debating German-Australians, Holocaust Adherents and Deniers, National Socialists, Zionists, and contributions from ‘refined people’ with conventional but differing historical perspectives.  The Facebook debate produced vitriol, humour, storytelling from children of survivors of the war including a Jew and a German, expressions of hate, calmness at times, conciliatory speech, mockery, and just plain bickering.  Annexure ‘G” contains some random samples of comments.

The experiment has demonstrated, that at least in the virtual reality of Facebook:

(a)                Debating the Holocaust is just like the rough and tumble of any other debate, and it is maintainable.

 This raises the question why in the 21st Century people in various Western countries are being convicted, locked up, or publicly vilified for questioning the historical event. In Australia we have had our own political prisoner by the name of Frederick Toben who was jailed for 2 months for breaching an injunction under Sec 18(C) on making comments about the Holocaust.

 (b)               As a mature society, there is no justification for Sec 18(C) being available to certain ethnic groups to shut down one side of any debate within the public domain, regardless of whether it is the Holocaust or any other event involving horror or suffering.

Mr Moses advice to the former Premier, and adopted by his replacement, was made public and is deliberately alarmist about the Abbott government amending Sec18(C) of the Racial Discrimination Act, and is even perhaps driven by his own ethnic/cultural imperatives. 

The reality is that the Holocaust debate is out in the public domain, with numerous historical revisionist books now sold through Amazon and other book distributors, Facebook posts constantly revolving around the planet, public discussions particularly so in the USA where free speech is a right under the constitution, through numerous websites and YouTube links promoting historical revisionist views and so on. 

Much of the material I have recently viewed examines the subject matter academically and at least appears sufficiently objective to warrant the status of being debatable, although it obviously causes discord as it is an extremely sensitive subjective with many groups having a vested interest in how the narrative is presented and accepted. 

It would take a huge amount of energy for governments to now persist with the crackdown on this debate, given the enormous amount of historical information, research and interpretations in the public domain, particularly since the collapse of the Soviet Union in 1991when a wealth of locked-away German National Socialist documents were released by the Soviet Union and shed much new light on past claims. In fact, much of the research of these documents undertaken by historical revisionists has added a wealth of understanding and interest in what happened during World War 2.  

Annexure ‘D’ is an article by British historian Geoffrey Alderman published in the Jewish Chronicle in 2008 which provides strong arguments as to why legislating against deniers of the Holocaust is part of a dangerous trend.  According to Geoffrey Alderman it is dangerous "to enforce particular interpretations of history under the guise of combating racism and xenophobia. The task of the historian is to investigate, confront, challenge and, if necessary, correct society's collective memory. In this process, the state ought to have no role whatever, none at all.

I refer it to you as it well and truly addresses the Jewish lobby’s argument for not repealing the Section 18C Bill.  It is likely that through amending Sec 18(C) the Holocaust debate will become more tolerated under the law than before, but not to the extent that it is used to vilify. That point can easily be made clear in any discussion of the proposed repeal.

 5.        Members of Parliament – juggling issues of racism and child abuse and ethnic aspirations through Sec 18(C)

Article –Holocaust deniers “disgusting monsters” (Annexure ‘E’)

The Section 18 (C) RDA debate requires accountability from all sides, including politicians and educators.  The Greens Party MP David Shoebridge has maintained that the Greens have a policy of banning Holocaust historical revisionism. He is quoted in the article as stating:

 “Probably the most offensive view you can have in relation to the issue of Israel and Palestine is to be a Holocaust denier.

His statement is ‘offensive’ and ‘insulting’ to Palestinians, and other ethnic groups, and reflects a ‘tinge’ of racism and bigotry in breach of Sec 18 (C) of the Racial Discrimination Act.

From the Palestinian perspective, far more offensive comments made in the context of the Palestinian/Israeli conflict include:

  • any defence of the Palestinian Catastrophe of 1948 (known as the Nakba) brought on by the invasion of Palestine by Holocaust Survivors and Refugees with their weapons and heavy duty machinery;
  •  statements justifying the continued expansion of settlements in the West Bank despite being condemned by 160 nations out of 171 nations in an UN vote;
  •  trivialization of the admission by the Israeli government of harvesting organs of dead Palestinians without family permission during the 1990s;

and so on.

Child Abuse

The Greens Party seem to have a tendency to vilify those who do not support their policies. Another NSW Greens MP, Jeremy Buckingham, is quoted in the article as saying:

“Holocaust deniers are disgusting monsters, peddling evil lies.’

The Greens Party are committed to the current Sec 18(C) which makes it an offence to question the Jewish version of the Holocaust narrative (see Toben case). The study of the Holocaust is being taught in schools in NSW, and was expected to become a compulsory subject in 2014 for all NSW school students in years 9 and 10 after the Jewish Board of Deputies lobbied the O’Farrell state government for the curriculum change.

Students are required to embrace all aspect of the Holocaust narrative.  For them to question any part of the narrative, particularly outside of the classroom, at home and with friends of whatever race, colour or creed, would mean putting themselves at risk of being in breach of Sec 18(C). Without the academic freedom to question the literature, research material and survivors’ testimonies, the subject essentially becomes a form of indoctrination of innocent children, a form of child abuse. Children with inquisitive minds are being placed in an invidious position by the state.  Schools are for education, not indoctrination.

Prompted by the debate I downloaded the 75 page booklet, ‘Teaching the Holocaust’ Year 10 (Stage 5) (edition 2012 ) that has been designed to facilitate the study of the Holocaust as part of the Australian curriculum.  Much of the material presented to students provides an ideological Jewish perspective on European history, and I note that the Holocaust narrative frequently slips into the vilification of other ethnic groups, and in particular Germans who have for 70 years been denied a right of reply by various Western governments.

There is use of a photo of 2 youthful male and female Germans in the booklet who are identified as the Nordic (Aryan) Stereotype.  In Australia we have had the bronze Aussie as our stereotype up to the 1970s, and many still cherish images of the fair skinned ANZACS dating back to WW1. Most cultures have ‘physical ideals’.  Presenting the Nordic stereotype as a seed for evil, terror and murder, backed up by emotive, untested Holocaust Survivor testimonies (some of which may be given in person during the course), is inappropriate and could have worrying impacts on students who are not dissimilar to the Nordic phenotype. The course very much relies on denigrating racial and ethnic values held by the German community during the era, but this is done at the expense of innocent ‘white Australian’ students who have to bear the brunt of the denigration.

I had the following exchange recently on Facebook Message with a student from Doncaster, Victoria, who had graduated from secondary school:

My question on Facebook:      ‘So did they teach the Holocaust in your school as a subject?’

New Friend’s reply:                ‘It was taught under history, basically nowadays it's a subject about how evil the Germans are.’

The course has clearly been structured to ‘indoctrinate’ rather than educate.  (I would even go so far as to recommend that the course material be referred to an independent professional educator and to a psychologist for their professional opinions about the impacts of the course on children, as this could become a serious and embarrassing ethical issue.) 

Whilst this is not the place to critique the entire subject as it is currently being taught, I will provide some examples of misleading statements, and the narrow context and distorting elements of the course (without going into any depth, which will be saved for another day).

1.          ‘In 1933 the Nazis seized power in Germany in the wake of the Great Depression ...’

             This is just simply historically incorrect. In fact, according to all historical sources I have checked, the elections of 1932 gave the Nazi party 230 seats and made the Nazis the largest party in the Reichstag parliament. On August 2, 1934, President Hindenburg died and three days later Hitler assumed the combined powers of Chancellor and President. His assumption of ‘absolute power’ resulted from a national referendum held 19 August 1934 confirming Hitler as sole leader of Germany.

2.                  ‘In Hitler’s vision, Germany, and with time the world was to be remade along the lines of Nazi ideals – strong ‘Aryan’ and ‘racially pure’.

             I have studied German history at Monash University.  Whilst Hitler may have been expansionist, it is preposterous to suggest the Nazis had plans to control every nation on earth and virtually liquidate and/or subjugate Asians, Africans, Aborigines, South Americans, Eskimos, Indian, Arabs etc.  All evidence clearly shows that Germany’s territorial ambitions prior to the break out of WW2 were confined to recovering former German territories and expanding deeper into Eastern Europe.  National Socialism was initially a response to International Communism. The statement is an exaggeration mirroring WW2 propaganda intended to magnify German evil.  To apply this technique on children in the classroom in the year 2014 is to abuse them. 

             In terms of racial ‘purity’, there is so much evidence around nowadays to show that Germany’s policies were not dissimilar to the White Australia Policy, the policies on blacks in the USA up to around the mid-1960s, the caste system in India, Israel’s own racial codes etc. 

 3.                  ‘The Nazi policy against the Jews culminated in Endlosung (the Final Solution) – the murder of six million Jews known as the Holocaust or the Shoah.’

             The problem with this piece of historical distortion, is that it fails to take into account that many Jews died of starvation, disease, illnesses, battle and so on. Wikipedia states that 25 million people died of starvation and disease during World War 2. The statement is designed to maximise the power of the narrative by lecturing to students that each and every Jew was murdered by the Germans, which is nonsensical.

The course virtually takes the Jewish experience out of the context of the WW2 apocalypse, and presents it to students as if it was simply a scenario of ‘racist Germans’ murdering ‘despised Jews’.   

In doing so, it excludes any mention of the mass murder and killing of tens of millions of Russians under the 20th century Jewish Russian Bolshevik regime with its gulags, and their involvement in the man-created starvation of 7 million Ukrainians in 1933 just before WW2, and so on.  It also fails to mention the 4 million German women, men and children placed into slave labour camps throughout Europe, Russia and elsewhere with some of these camps not closing until 1953 and many of the internees perishing. (See Wikipedia)

An extraordinary omission of the Jewish Holocaust-WW2 narrative taught in schools is the ‘invasion’ of Palestine by Jewish refugees and Holocaust Survivors culminating in the proclamation of the State of Israel in 1948 with 3/4 million Palestinians immediately losing citizenship rights. And, critically, the subject fails to draw attention to school students, the ironic parallels between the racial and political policies of the Nazis and the Zionists who run Israel (with its Laws of Return etc, and particularly if one views Gaza and the West Bank as perpetual concentration camps). This very much reflects the fact that the course is predominantly about indoctrination, and is not merely a program for students in moral philosophy. 

The subject contains many loaded questions for students, such as responding to the following statement: ‘Rubenstein unequivocally asserts that the Holocaust is the product of both the society within which it was engendered, and of the societies that did nothing to stop it until it was too late.’ The question, as structured, becomes bizarre when considered in the context of WW2, and the answer simply seeks students to blame and vilify European people as a whole without the students having any substantial knowledge of the period.

There needs to be some self-consciousness and awareness in pedagogy to avoid bigotry that is deleterious to learning.  If the Holocaust story is about teaching moral lessons and moral decision making, and using history as a backdrop, it must provide realistic contexts to avoid becoming indoctrination.

It would appear through the teaching of the Holocaust in Australian schools, non-Jewish school children, particularly those of northern European descent and Muslims, are potentially being encouraged to loathe their own ethnicity. 

The expression, ‘Holocaust Denier’ was introduced around the 1980s as a derogatory slur to politically demonize historical revisionists who were discovering many falsehoods in post-WW2 propaganda, including much that related to the Holocaust narrative. I was brought up on the ‘soap and lampshade’ claims.  If it wasn’t for the historical revisionists, whom the Greens Party brand as "disgusting monsters, peddling evil lies", students would still be taught that:

  • the Germans turned Jews into soap and lampshades,
  • there were gas chambers for killing Jews inside of Germany such that the 65 million population should have known about them and therefore the Germans and their descendants collectively must bear the guilt and atone;
  • the alleged 'homicidal gas chamber' shown off to hundreds of thousands of tourists every year at the Auschwitz main camp was built by the Germans, when in fact, it is now admitted that it was fabricated after the war by the Soviet Union,

and so on.

With various state governments and the Greens Party support for delivering complete ownership of ‘truth in history’ to one particular ethnic group, in this case being Jewish people, the rights of other groups to account for their own shared history is extinguished. This is itself an exercise in institutional racism, endorsed by the Greens Party and various governments in Australia. 

The course breaches Sec 18(C) as a shield, but curiously, in reliance on the Toben case, is another example of Sec 18(C) being allowed to be used as a weapon.  By amending Sec 18(C), however, and thereby allowing both sides of the debate to be discussed, and with much ethical restructuring of the subject, it could have some justification for being on the curriculum.

[Disclaimer: I am neither a Holocaust Denier nor a ‘Holocaust Adherent’ (being a term that I have introduced into the Worldwide Holocaust Lexicon as a result of this debate).  I believe in the rights of free speech and the right to question and discover answers.]


There are claims that repealing Sec 18(C) carries with it serious implications for the mental health, physical safety and legal rights of many Australians. I believe this is a simplistic blinkered view that fails to take into account the deleterious ramifications of the current legislation as outlined in my submission.

 Trevor Poulton

30 April 2014 


Brandis' race hate laws are whiter than white

March 27, 2014 Waleed Aly


Illustration: Andrew Dyson

Perhaps the most remarkable thing about George Brandis' now infamous comment this week that Australians "have the right to be bigots" is that it was so unremarkable. Sure, it's a grating sound bite, but as a matter of substance it's entirely obvious. Of course we have a right to be bigots. We always have.

That's the point that has been buried here. Nothing in the Racial Discrimination Act as it presently stands precludes bigotry. In fact, I'll go a step further: you're even allowed to express your bigotry. Happens all the time. Read a newspaper. Bigoted views are published there several times in an average week.

Two things flow from this. First, that critics of the Racial Discrimination Act are simply wrong to suggest that our free speech is so curtailed that we can't risk saying anything offensive. The courts have long made clear that the Act only contemplates serious cases. The caricature that we're placed at the mercy of the most delicate people's sensibilities is nothing less than a gross misrepresentation of the law.

Second, that supporters of the Racial Discrimination Act are wrong if they insist it provides anything like substantial protection against racism. I've copped my share of racial abuse both in public and in private, and section 18C wasn't ever going to do a damn thing about it.


So in the current furore, it's worth remembering that we're not exactly playing for cutthroat stakes. To be clear, the Abbott government's proposed legislation really would allow for almost any racist speech you can imagine. Any "public discussion of any political, social, cultural (or) religious" matter will be exempt, no matter how boneheaded, dishonest or odious.

Precisely how it is possible to racially vilify someone without discussing a "social" matter is beyond me. But for all that, Australia will not simply explode in a blaze of white supremacy upon the repeal of these provisions (which is far from inevitable in any case).

Rather, there is something else at stake here that is much bigger than any particular legislative provision. I'm not so much concerned by section 18C or its repeal, but by the mythology on which that repeal is apparently based. Unspoken at the heart of this debate is a contest over the way race relations works in this country – and on whose terms.

That's what struck me most about the proposed legislation. It's just so . . . well, white. In fact it's probably the whitest piece of proposed legislation I've encountered during my lifetime. It trades on all the assumptions about race that you're likely to hold if, in your experience, racism is just something that other people complain about.

Subsection (3) – mostly ignored to this point – is perhaps the most subtly revealing. Earlier subsections make it unlawful to do something that is "reasonably likely" to vilify or intimidate someone on the basis of race. But reasonably likely according to whom? Who gets to decide whether something is intimidating or vilifying? Subsection (3) provides the answer.

Whether something is "reasonably likely" to vilify is "to be determined by the standards of an ordinary reasonable member of the Australian community", it begins. Fair enough. But then it adds in the most pointed way: by the standard of whatever racial minority is being vilified. Not the ordinary reasonable wog, gook or sand nigger; the ordinary reasonable Australian. And what race is this hypothetical "ordinary reasonable member of the Australian community" meant to be, exactly? If you answered that they have no particular race, then you've just given the whitest answer possible. It's the answer that assumes there is such a thing as racial neutrality. Of course, only white people have the chance to be neutral because in our society only white is deemed normal; only whiteness is invisible.

Every other race is marked by its difference, by its conspicuousness – by its non-whiteness. White people are not non-Asians or non-blacks. They aren't "ethnic" as the term is popularly used. If the "ordinary reasonable Australian" has no race, then whether or not we admit it, that person is white by default and brings white standards and experiences to assessing the effects of racist behaviour. Anything else would be too particular.

This matters because – if I may speak freely – plenty of white people (even ordinary reasonable ones) are good at telling coloured people what they should and shouldn't find racist, without even the slightest awareness that they might not be in prime position to make that call.

This is particularly problematic with the proposed offence of racial "intimidation". To "intimidate" is "to cause fear of physical harm" according to the draft Act. Now our ordinary reasonable white person is being asked to tell, say, black people whether or not they are "reasonably likely" to be fearful of physical harm. Black people – reasonable ones – might actually be fearful, but ultimately a hypothetical white person will decide that for them.

I have no doubt the Abbott government doesn't intend this. It doesn't need to. That's the problem. This is just the level of privilege we're dealing with. This is what happens when protection from racism becomes a gift from the majority rather than a central part of the social pact. It's what happens when racial minorities are required to be supplicants, whose claims to social equality are subordinate to those of powerful media outlets outraged they might occasionally have to publish an apology.

And it's what happens when lawmakers and the culturally empowered proceed as though ours is a society without a racial power hierarchy simply because they sit at the top of it.

Waleed Aly is an Age columnist. He hosts Drive on ABC Radio National and is a lecturer in politics at Monash University.

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Racial Discrimination Act changes will hit vulnerable: Adam Goodes

April 13, 2014  Damien Murphy


Speaking out: Adam Goodes, who is a White Ribbon ambassador, opposes changes to the Racial Discrimination Act. Photo: Brendan Esposito

 Australian of the Year and AFL star Adam Goodes has slammed the Abbott government's proposed changes to the Racial Discrimination Act, claiming they attacked the most vulnerable Australians.

The Sydney Swans veteran said the changes were unnecessary - ''I don't see that the system is broken'' - and thought the freedom of speech guaranteed in existing legislation would be removed by the mooted amendments.

As a White Ribbon Ambassador since 2009, Goodes had focused his attention on domestic violence against women but last month, when the Attorney-General, George Brandis, defended the right to be a bigot, he posted a few non-committal observations on Twitter.

''There are great bits in RDA that [say] everyone has the right to the freedom of speech,'' Goodes said.

''Some wording is proposed to be taken out. This is clearly disappointing. Freedom of speech is clearly written into the RDA that we have. The fear now is for people who are in this country and are part of minorities and don't have the support that I've had - like refugees at their own workplace - who are facing this type of abuse,'' he said.

''What protections do those minorities have in the new RDA that is proposed? What system will be in place that can help them to say: 'You know what? I've got this Racial Discrimination Act act here, and I'm going to report you because what you're doing to me is wrong.'''

Goodes said the laws were there for people who did not have the support or the means to get themselves out of that situation without getting a higher authority to do something legally. Last May Goodes came to personify the state of racial vilification in Australia when he was called an ''ape'' by a 13-year-old girl during the match between Collingwood and the Swans at the MCG.

''Under the old legislation I still didn't charge her,'' Goodes said. ''I accepted her apology and that was it. That was my choice.'' Within days of the MCG insult, Collingwood president, and radio and television host Eddie McGuire likened the Brownlow medallist to King Kong during his breakfast radio program.

Goodes then revealed that he too had been damaged by domestic violence. Goodes was born in Adelaide in 1980, the eldest of three boys. His parents, Lisa May and Graham, separated when he was four. Graham moved to Queensland. Lisa May, a member of the Stolen Generation, kept the boys.

One night in 1992, fighting again broke out between his alcohol-affected stepfather and his mother, and the 12-year-old Goodes went to a phone box and dialled triple-0. The police came, the shouting stopped.

Goodes said his stepfather did not harm his mother physically but his constant emotional and verbal abuse hurt the whole family.

''It's so true that emotional violence and words can be damaging in other ways because it is constant,'' he said. ''There was no respite.''

Goodes said his stepfather thought neighbours had complained to police. But the turmoil inside the 12-year-old boy echoes down the years.

''I agreed to do this article because White Ribbon are a fantastic organisation and because of the domestic violence I'd seen growing up,'' he said. ''Seeing domestic violence is something you don't want other people - children - to go through and I think being in the position I am in now, I find it really important to keep raising awareness about the work that White Ribbon does and the role that us, as men, play in domestic violence, whether it be us being the perpetrators or us helping our friends and family members, having conversations with them when they get angry and not letting it get to the next step.''


 Barrister warns Barry O'Farrell of Holocaust denial risk under George Brandis' changes

April 7, 2014  Sean Nicholls

''A right to be bigots'': Attorney-General George Brandis. Photo: Andrew Meares

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 Changes to the Racial Discrimination Act proposed by federal Attorney-General George Brandis would ''open the door to Holocaust deniers'', allowing them to publish their claims with impunity, legal advice to NSW Premier Barry O'Farrell says.

The opinion by leading barrister Arthur Moses, SC, says the changes would ''radically narrow the protection that Australian citizens will receive from racial vilification'' and ''undermine the very purpose'' of the act.

''A new legislative right to engage in racial vilification in the course of public discussion would, for instance, open the door to Holocaust deniers to publish their opinions on websites and on social media in the course of 'public discussion','' he writes in the opinion handed to Mr O'Farrell on Friday.

Senator Brandis plans to abolish section 18C of the Racial Discrimination Act, which makes it unlawful to publicly ''offend, insult, humiliate or intimidate'' a person. Section 18D, which provides protections for freedom of speech, will be removed.

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

But, in his opinion, Mr Moses cites the 2003 prosecution of Fredrick Toben over publication of his view that there were ''serious doubts'' the Holocaust took place and some Jewish people exaggerated the number of Jews massacred during World War II for improper reasons, including financial gain.

The full bench of the Federal Court found Dr Toben's comments were not made in ''good faith'' - an exception to prosecution in the existing act.

The proposed new law protects comments made ''in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter''.

''This exception is wide enough to allow people to publish anti-Semitic material if they demonstrate that they were participating in public discussion,'' Mr Moses says.

He says Dr Toben's comments ''would be allowed under the new law, which has no 'good faith' exception''.

Mr O'Farrell sought the advice from Mr Moses after comments by Senator Brandis that people ''do have a right to be bigots''.

During debate in the Senate he declared that ''in a free country, people do have rights to say things that other people find insulting or offensive or bigoted''. The comments prompted protests.

Mr O'Farrell responded last week by publicly declaring that bigotry ''should never be sanctioned, whether intentionally or unintentionally'' and that ''vilification on the grounds of race or religion is always wrong''.

The proposed changes have also been criticised by Australian Human Rights Commission president Gillian Triggs.

Senator Brandis has not denied that he was forced to water down the original proposal for the bill by his cabinet colleagues.

One minister previously said, ''George has really drunk the right-wing Kool-Aid'' while a second minister said the original proposal had been ''much worse''.

Senator Brandis is out of the country. A spokesman did not respond to a request for comment.


Denial is not a criminal matter

Legislating against deniers of the Holocaustis part of a dangerous trend.

 By Geoffrey Alderman, October 30, 2008
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In its issue of October 3, the JC ran the story of the arrest, at Heathrow airport on an EU warrant issued by the German government, of a German-born Holocaust-denier, Frederick Toben. Mr Toben is actually an Australian citizen. No matter; he arrived at Heathrow from the USA, en route to Dubai. The Metropolitan Police arrested him because the German government alleges that he has persisted in posting material on the internet denying or "playing down" the Nazi Holocaust of the Jews.

In 1999, Mr Toben served a term of imprisonment in Germany after publishing pamphlets denying that mass murders of Jews were carried out at Auschwitz. Following his appearance before London magistrates earlier this month, a spokesperson for the Community Security Trust was quoted as having praised the action of the British authorities in executing the EU warrant and as having expressed the hope "that the German law will take its course".

I hope that nothing of the kind befalls Mr Toben. I hope that the extradition warrant is quashed, so that Mr Toben is once again free to roam the world denying the Holocaust to his heart's content. I also hope that not only will this kind of incident never happen again in this country, but that the British government will demand that German (and Austrian) laws criminalising Holocaust-denial are repealed at the earliest possible moment.

A great deal has been written in the press about Toben's disgraceful treatment. My fellow JC columnist Melanie Phillips has rightly condemned this treatment as a denial of free speech. On October 10, Anshel Pfeffer correctly argued in the JC that prosecuting Holocaust-deniers is a waste of money, serving only to give these odious cretins the attention they crave. With all of this I heartily agree. But my worries about the Toben case go much deeper.

My worries have to do with the alarming tendency of nation-states to criminalise the past and, in particular, with a wretched proposal now under consideration by the European Union, to compel EU member states to enforce particular interpretations of history under the guise of "combating racism and xenophobia". This proposal emanates (surprise, surprise!) from the German government, whose justice minister apparently wants to bring about a state of affairs in which "publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes" would, throughout the EU, be punishable by between one and three years' imprisonment.

Ask yourself how such a mad law might be enforced, and with what result. Ask yourself who will decide whether a particular historical event amounts to a "genocide". Ask yourself by what grotesque yardstick a trivialisation of, say, a war crime amounts to a "gross" trivialisation.

But as you begin to answer these questions, bear the following in mind. In Turkey, it is currently a criminal offence to assert that Ottoman treatment of the Armenians 90 or so years ago amounted to genocide. But in Switzerland it is a criminal offence to assert the precise opposite. In France, in 1995, the distinguished Jewish historian of the oriental world and of Islam, Bernard Lewis (born in Stoke Newington and now professor at Princeton University), was actually convicted for having written an article (in Le Monde) arguing that, although the Armenians were brutally repressed, this did not amount to a genocide because the massacres that took place were neither government-controlled nor sponsored.

As the distinguished British historian Timothy Garton Ash (a professor at Oxford) recently reminded us in The Guardian (October 16), according to a French law promulgated in 2001, slavery has been designated as a crime against humanity. If, while on holiday in France, I am overheard casually denying that slavery did in fact amount to a crime against humanity, do I risk being hauled before the French courts? And if I escape to England will the boys in blue arrest me here on a French-inspired EU extradition warrant? Or suppose I declare that the killing of Palestinians at Deir Yassin in 1948 did not actually amount to a war crime. If the EU proposal were implemented, would I face imprisonment, just because I had exercised my professional judgment in a way that upset Arab propagandists?

The task of the historian is to investigate, confront, challenge and, if necessary, correct society's collective memory. In this process, the state ought to have no role whatever, none at all. Certainly not in the UK, which delights in presenting itself as a bastion of academic freedom.  


Holocaust deniers “disgusting monsters”

June 20, 2013 by Henry Benjamin

A report that Holocaust denier Dr Fredrick Toben had been invited by a NSW Greens MP to join a Sydney Harbour cruise to raise funds for Gaza has met with damning disapproval by Greens MP Jeremy Buckingham…and apologies from  Greens Senate candidate Cate Faehrmann.


Fredrick Toben          David Shoebridge

The Australian newspaper reported that Greens MP David Shoebridge had invited Adelaide-based Toben to join the cruise…but Shoebridge withdrew the invitation when he became aware of Toben’s background.

Toben, who has served time in prison in Germany for denying the Holocaust and in Australia for contempt of court by refusing to withdraw content from his Adelaide Institute web site, accepted the invitation and according to the Australian is demanding a refund of his air fare following the decision to rescind his invitation to last month’s cruise.

In a statement to the NSW Parliament today Davide Shoebridge said: “There was a story in the Australian today that referred to my decision to refuse permission to Holocaust denier Frederick Toben to attend an event I organised to support Palestinian rights.

As I said on ABC radio this morning “Probably the most offensive view you can have in relation to the issue of Israel and Palestine is to be a Holocaust denier.”

A broadcast email was inadvertently sent to Toben about the event from my office. He was put onto a distribution list by a staff member who was unaware of who Toben was.

As soon as we became aware of who we were dealing with we immediately withdrew the invitation and black-listed him from further communication. Toben’s offensive views on the Holocaust are completely incompatible with any engagement with this office.

The Australian chose to not print the fact that we made it very clear to Mr Toben that he was not welcome specifically because he is a Holocaust denier.

I, the Greens, and everyone in my office strongly condemn anti-Semitism and Holocaust denial. This is a position I have repeatedly, and publicly, stated.”

Greens MP Jeremy Buckingham told J-Wire:  “Holocaust deniers are disgusting monsters, peddling evil lies. The Greens believe there is no place for any association with, and condemn all forms of anti-Semitism.”

He added; “Everyone working for peace and justice in the Middle East must be mindful that their cause is not hijacked by those who are motivated by hatred.”

Jeremy Buckingham signed the London Declaration against anti-Semitism on 23 May this year.

Shoebridge is reported in the Australian as saying “There was never any intention to invite Mr Toben to the event”. He said the invitation was sent inadvertently through an automated process.

Former Greens MP and lead Senate candidate Cate Faehrmann told J-Wire:  “I was in shock when I learned of this. Frederick Toben’s views runs counter to everything we stand for as a Party – peace, tolerance and acceptance. At the very least, it was appropriate that the invitation was rescinded, however Mr Toben should never have been invited in the first place.

 I apologise to the Jewish community unreservedly for any hurt and upset this error of judgement may have caused.”

Jeremy Jones of The Australia/Israel and Jewish Affairs Council said: “Organisations who attack and campaign against Israel become magnets for neo-Nazis, anti-Semites and racists. It is good that Mr Shoebridge reversed the error.”

Executive director of  The Executive Council of Australian Jewry Peter Wertheim added: “David Shoebridge is avoiding the real issue. This is not about the  revocation of an invitation that appears to have been sent out inadvertently.It’s about why those who claim to be supporting Palestinian rights consistently attract the enthusiastic support of people with an explicitly racist anti-Jewish agenda. Politicians in particular have an obligation to be realistic about the true nature and effect of their advocacy.”



'Privacy has Gone - at least Secure Free Speech. Think about it.' (Trevor Poulton 2014)