Since Tony Abbott seized the leadership of the Liberal Party in late 2009, Australian party politics have become extremely polarised. The indecisive election in August 2010, which led to a hung Parliament and a minority Labor Government, didn’t reduce this polarisation; if anything, it’s increased since. There are clear differences between the two major parties (left-of centre Labor and right of centre Liberals) on a range of social, economic and environmental polices.
On most of these partisan debates I favour the Labor Party. I especially dread the prospect of an Abbott Government’s impact on environmental policy. Combined with gung-ho pro-development Liberal/National Coalition Governments at State level, I fear the likely direction an Abbott Government would take on ‘green’ issues. So in general, I favour the re-election of a Gillard Government at the coming general election, which is due by the end of 2013.
But while I prefer Labor’s policies on most issues, there are exceptions. Some of them are important to me. They’re more than mere “flies in the ointment” – I regard a few of them as potentially serious drawbacks to the re-election of the current Government. On those issues I’d like the current Labor Government to shift its position.
This article is about one such exception. I write not motivated by a desire to help defeat the ALP Government; I want to encourage it to change policy. If that doesn’t happen it’ll seriously detract from my enthusiasm for renewal of Labor’s mandate to govern.
A most illiberal law..
Back in 1995 the Keating Labor Government was in power and Michael Lavarch was his Attorney-General. After intensive lobbying from Australia’s powerful mainstream Jewish/Israel Lobby, that Government legislated an amendment to the 1975 Racial Discrimination Act (RDA).
Here’s the amendment in question:
RACIAL DISCRIMINATION ACT 1975 – SECT 18C
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
On Monday this week, in a speech to the right-wing Institute of Public Affairs which he called ‘Freedom Wars‘, Opposition Leader Tony Abbott gave what for me was one of his finest speeches – a speech more in keeping with the liberalism of John Stuart Mill (which I respect) as opposed to the reactionary polices of Australia’s Liberal Party on a raft of other issues (which I oppose).
In ‘Freedom Wars’ Mr Abbott took a stand against the Finklestein Inquiry proposals for a new media tribunal. As I’ve written previously, I also regard Finkelstein’s key proposal for a new ‘media tribunal’ as deeply flawed and I welcome Abbott’s clear rejection of it. If that happens, on this rare occasion, to locate me on the same side of a debate as executives of News Ltd, so be it. In fact I’m glad, this once, to have powerful allies on what I regard as a very important policy issue.
His speech also clarified the Liberal Party’s position on the notorious 18C Amendment to Australia’s Racial Discrimination Act. Abbott said:
The [Liberal National] Coalition will repeal section 18C in its current form. Any prohibitions on inciting hatred against or intimidation of particular racial groups should be akin to the ancient common law offences of incitement and causing fear.
Expression or advocacy should never be unlawful merely because it is offensive. It ought to be inconceivable that a commentator offering an opinion should fall foul of the law rather than a wave of criticism. This is not a matter of agreeing or disagreeing with Bolt. It’s a matter of an expansive or a repressive view of the right to free speech.
Abbott’s reference to ‘Bolt’ was to the prominent Australian political commentator Andrew Bolt, who was convicted in 2009 of infringing this notorious section of the RDA. Some of the nuances of the case were discussed by Jonathan Holmes on Media Watch before the court’s decision – see Andrew Bolt and The Herald Sun on trial. Mr Holmes also wrote about the case after Justice Mordecai Bromberg brought down his decision in September 2009: Bolt, Bromberg and a profoundly disturbing judgment. I found his coverage of the case insightful, fair and well-argued.
The feisty and (to me) highly irritating Andrew Bolt is not the only person to have faced the courts since the RDA was amended in the mid-1990s. Other notorious earlier cases had been brought by the organised Jewish/Israel Lobby against people it derides as ‘Holocaust deniers’. The most famous of those cases was that of Dr Frederick Toben, who was eventually jailed for several months for breaching court rulings made after he was found guilty of breaching the 18C of the RDA back in 2002.
Toben often uses polemical language that may well cause offence to Jewish people. But if his language offends Jews, it’s surely no more offensive than recurrent vilification of Muslims (and occasionally Christians) by some Jewish and non-Jewish commentators in Australia. Toben’s key ‘thought-crime’ appears to be his rejection of the mainstream narrative of the history of World War Two. The judgement against Toben makes it clear that it was that specific issue – a matter of historical debate – that was the nub of the case brought against him.
The judgement handed down against Dr Toben by Justice Branson on 17th September 2002 sought to restrain him from “further publishing information which conveyed the following imputations:
(A) there is serious doubt that the Holocaust occurred;
(B) it is unlikely that there were homicidal gas chambers Auschwitz;
(C) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
(D) some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.”
It was an extraordinarily illiberal judgement.
I’ll take the four points one by one:
(A) is meaningless without a precise definition of ‘The Holocaust’ which, as far as I can see, the judgement lacked. This term ’The Holocaust’ was rarely used to signify events pertaining to the fate of Jews in World War Two until the 1970s. In previous decades – the 1950s/60s – ‘holocaust’ was used mainly as a term to signify the much-feared prospect of a “nuclear holocaust”. Contemporary usage is actually quite recent.
“The Holocaust” is therefore quite different from historical events that were identified as such by protagonists at the time - such as the 1940 ‘Battle of Britain’ or the 1945 atomic bomb attack on Hiroshima. Without a precise and generally agreed definition of what is meant by the term, to say “The Holocaust happened” or “the Holocaust didn’t happen” are statements so devoid of precise content that they are, effectively, meaningless.
(B) is a matter of historical debate. Judge Branson may not like the fact that numerous serious scholars have expressed doubts that the gas chambers in Auschwitz were ever used to kill human beings, as opposed to their overt function which was to de-louse clothing and bedding and hence help arrest the spread of typhus. But like it or not, it’s a fact that serious doubts have been expressed by numerous serious scholars. The debate over what really occurred at that time is ongoing.
In effect, Judge Branson arrogated to himself the right to determine historical fact. That’s a disgraceful thing for a judge to do. Courts of law are neither equipped to act as the arbiters of history, nor should they ever attempt the task. In the Enlightenment tradition, history is for historians and the general public to debate – not for judges to specify.
(C) is a curiosity. I can find no evidence that Dr Toben ever made such a claim. Perhaps someone can point me to the exact quotation/s which formed the basis of Justice Branson’s decision on this? However, even if Toben did make such a silly comment, its hard to see how that was not a legitimate part of public discourse. If you want to hear people insulting each other for being ‘stupid’, listen to Parliament, read the newspapers, get on Twitter or go the the pub. It happens all the time. If’s is a criminal offence to say people are of limited intelligence few indeed in our society are not guilty of it.
(D) the notion that some Jewish people “have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed” may cause offense to some people, but it’s extremely easy to prove that it’s a factual statement. The key word is “some”. There are numerous cases of demonstrably false claims made by some Jewish people on the events of World War Two. Some of those claims have been openly acknowledged as false by the individuals who originally made them. If Justice Branson wished to restrain free speech on this point, he was clearly seeking to restrain people from telling (a part of) the truth. Judges have no business to do this in a civilized society that takes honesty seriously.
In short the judgement made by Justice Branson in 2002 was an extremely poor judgement that – in my opinion – should never have been made. It would surely have caused a major media outcry at the time were it not that the great majority of journalists and public commentators such as Jonathan Holmes live in fear that their careers will be jeopardised if they fall foul of the Jewish/Israel Lobby. They may also regard Toben as a distasteful character - but I suspect that’s of secondary importance. After all, Mr Holmes is clearly no fan of Andrew Bolt, yet he felt able and compelled to speak in Bolt’s defence when the latter was on trial for breaching 18C of the RDA. Yet very few public commentators had the guts to criticise the earlier judgement against Dr Toben, which in certain key respects was an even more outrageous and sinister judgement.
Defending Toben’s right to make public statements about the (so-called) ‘Holocaust’ is not simply a matter of defending an eccentric’s right to express a unorthodox opinion. It’s not equivalent to saying that people should be free to express the view that the earth is flat. The events of World War Two have remained a dominant theme in public discourse to this day. They are mentioned incessantly in ongoing political debates. If nobody could discuss them openly that would be bizarre, but at least it would be symmetrical and ‘fair’ in a silly kind of way. But what the likes of Justice Branson appear to believe is that the subject matter commonly described as ‘The Holocaust’ can and should be discussed – as long as the content of discussion is within court-approved boundaries. That’s outrageous!
For what it’s worth, I no longer believe the mainstream narrative about the events of the 1930s and 1940s. Some people might call me a “Holocaust Denier” because of my views. I repudiate the term and never use it myself except within inverted commas, regarding it as a deliberately nonsensical and misleading meme, invented decades after the end of World War Two as a sneaky way to police opinion.
I used to share the now-orthodox view of what happened in German concentration camps during World War Two – indeed, until a decade ago, I never really questioned it. Then came 9/11 and my gradual realisaton that the official 9/11 narrative is a pack of lies. After that, I began to take a deeper look a historical controversies such as the JFK assassination and the (so-called) “Holocaust”. I spent some considerable time looking at different sides of these debates – reviewing for the first time perspectives and analyses that barely ever get aired in the mainstream Western media. Now I’m deeply sceptical.
If that expression of my opinions causes offence, I regret it. I try not to cause offence unnecessarily to anyone – but history matters and more generally, the truth matters. I’m offended almost every time I watch the History Channel or open one of Mr Murdoch’s newspapers. But that’s life. I don’t seek to censor people whose views offend me or ban the expression of their opinions. What I do demand is that evidence-based contrary views are not excluded from mainstream discourse. I want them expressed more freely than at present and without fear of persecution. I argue for that publicly. Oh.. and I don’t want one-sided, distorted history that may not be debated openly made compulsory in schools. In fact, when I was a boy, I was often told that was the kind of reason why Britain fought World War Two!
This article began on the theme of ‘exceptions’ – so maybe it’s appropriate to end it on the same note.
It’s not quite true that no ‘mainstream’ commentators had the guts to stand up for Toben’s right to free speech. An exception was Janet Albrechtsen. Like Andrew Bolt, she writes for the Murdoch media. Like Bolt’s output, I usually find her articles irritating, crass and well off the mark. But in 2009 she penned an opinion piece entitled “The Freedom to be Offensive” with specific reference to Fred Toben and his tangle with the RDA. She said a number of things in the article with which I disagree, but did express the view that Toben should not be jailed for his views.
However, Ms Albrechtsen used the long-established formula that makes the opinion that so-called “Holocaust Deniers” should be allowed to speak acceptable in the mainstream Western media. It’s the same formula used, for instance, by philosopher Peter Singer when he defended David Irving‘s right not be be jailed for his historical views.
Janet Albrechtsen’s trick was to thoroughly rubbish Toben’s beliefs in the same breathe as defending his “free speech”. She did this prominently in her third paragraph:
I detest Frederick Toben’s views about the Holocaust. They are wrong. They are stupid. They are offensive. But using laws to censor his views does not enhance our democracy. It diminishes our democratic fibre by suggesting that we are too precious, or too lacking in confidence, to confront wrong words with right words. Let the man speak. These foolish views will be defeated by facts in the end.
Without that sort of proviso, Ms Albrechtsen’s article would doubtless never have been published in The Australian. Without it, she’d probably never have wished to write it..
Janet Albrechtsen is quite entitled to her view – and to express it. But note she didn’t attempt to justify it in any way – not even by providing supporting references. She states it as a fact – something that her her readers are expected to take as given.
In its own way, that style of argument is another way of shrinking, rather than expanding, the domain of free speech. In general, it’s easier to police opinion by ridicule than via the courts. The key – and positive – difference is that the Albrechtsen/Singer approach does not land “offenders” in jail – although it does create an intellectual climate conducive to the marginalisation of the views they disparage.
What we really need – in my opinion- is full, respectful, polemic-free debate about the complexities of our history - especially the thorny subject of World War Two that seems to get even more emotion-laden and propaganda-ridden as time goes by (not less, as is usual with historical events). We need to look back at the catastrophic major conflicts of recent history and try to understand what really happened, free from propaganda and bias. Only then can we learn the real lessons from our past.
Preventing that from happening seems to be the over-riding priority of all these “acceptable” commentators, whatever their posture on the topic of free speech.