Associate Professor Jake Lynch
Director, Centre for Peace & Conflict Studies Mackie Building K01
University of Sydney, NSW 2006
By email: [email protected]

Re: Participation in unlawful BDS movement activities.

Dear Sir,

Shurat HaDin—The Israel Law Center, an organisation dedicated to enforcing basic human rights through the legal system, represents victims of terrorism and other illegal anti-semitic activity in courtrooms around the world. Shurat HaDin was founded on the model of the Alabama based Southern Poverty Law Center – a non-profit legal center that over the last four decades has successfully confronted and shut down racist groups (such as the Ku Klux Klan) across America.

It has come to our attention that you and your organisation, the Centre for Peace & Conflict Studies, have participated in and/or publicly supported the global movement for boycotts, divestment and sanctions against Israel and Israeli related business, academic and cultural persons and organisations (BDS movement or BDSM). In particular you have supported racist anti-semitic BDSM activity at Sydney University. See: http://www.bdsmovement.net/2013/sydney-university- student-representative-council-passes-bds-motion-10961

We wish to put you on notice that BDSM activity is unlawful in Australia and may be the subject of civil, administrative and criminal legal action against you.

A. BDSM activity is unlawful Racial Discrimination
BDSM activity is unlawful under the Racial Discrimination Act 1975 (Cth) which provides (section :)9

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

The BDSM, by its very definition, seeks to make distinctions between, impose restrictions on and imposes an adverse preferences based on the Israeli national origin of goods, services, persons and organisations. It also in effect makes a distinction between, imposes restrictions on and imposes adverse preference based Jewish racial and ethnic origin and the Israeli ethnic origin.

Participants in the BDSM do these BDSM related acts with the clear purpose and actual effect (where their BDSM actions are successful) of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights and/or fundamental freedoms in the political, economic, social, cultural fields of those persons and organisations whom they seek to boycott, divest from and sanction.

Racist BDSM activities consisting merely of speech, including advertising for and inciting unlawful BDSM activity, are expressly prohibited under sections 16 & 17 of the Racial Discrimination Act. There is no general constitutional protection of free speech in Australia and BDSM racist hate speech is not legitimate free speech in any case.

BDSM activities are unlawful even if the ostensible reason for the BDSM acts are supposed support of the Palestinian cause. Section 18 of the Racial Discrimination Act provides that:

If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.

Finally, your employers can be held vicariously liable for your racist, anti-semitic BDSM activity. See section 18A of the Racial Discrimination Act.

1. The BDSM engages in racist hate speech

A call for an economic, cultural or academic boycott of Israel or Israeli organisations is one of the worst forms of harmful speech because it is a deliberate and malicious attempt to harm Israeli Jews.

It is clear that economic, cultural and academic boycotts are harmful to their targets and Jews have suffered particularly from such boycotts as a result of antisemitism throughout history. Such boycotts were some of the first laws passed against Jews by the German Nazi regime prior to the Holocaust.

Moreover, the persons calling for such boycotts are well aware and indeed intend to harm Jewish and Israeli persons and organisations. They are aware that their actions in targeting of privately held Jewish businesses, cultural organisations or academics have had no effect on Israeli government policies (which are determined by democratic elections) but instead turn their frustration at this towards redoubling their efforts to harm Jews.

2. The BDSM is hypocritical and does not assist the Palestinian cause

The BDSM is hypocritical and not really directed at legitimate support of the Palestinian cause at all.

Thus even the ostensible, potentially lawful reason for the BDSM is false. Analysis of the actual actions and activities of the BDSM shows this clearly.

The BDSM uses the internet and modern communications methods to regularly target vulnerable Jewish or Israeli owned businesses with no political influence while continuing to make extensive use of the Israeli developed technology products embodied in all today’s computers, smartphones, tablets and the global internet.

The Israeli companies heavily targeted by the BDSM include Max Brenner (cafes & chocolate), Ahava (beauty products), Sodastream (soft drink machines), Seacret (beauty products), Sabra Humous & Eden Springs (bottled water).

Clearly none of these companies have any significant political activities or influence that can justify a call to boycott them being characterised as political activity or support for Palestinians as BDSM activists assert. Indeed the actual activities of the BDSM protesters calling for and actively boycotting Israeli businesses are often laden with overt antisemitism.

These consumer economic boycotts are also extremely selective and hypocritical in targeting relatively small, vulnerable, low tech Israeli companies whose contribution to Israel’s exports is very small while not only ignoring, but actively using the high tech products developed and / or produced in Israel by Intel, Facebook, Google, Apple, Microsoft, Cisco, Sandisk, Hewlett Packard and many other Israeli companies that are essential to the modern high-tech lifestyle.

Given the huge dominance of high tech in Israel’s exports, calls to boycott Israeli low tech delivered by means of Israeli high tech can never be effective on a macro scale in damaging the Israeli economy and thus influencing government policy. Such calls can only serve to hurt vulnerable Israeli companies with no real political influence.

Cultural boycotts of Israel, organised by the BDSM, have consisted of attempts to deprive the Israeli public of overseas performers who were planning to tour Israel by harassing performers who have announced concert dates and Israeli cultural groups which tour other countries. It is difficult to see how depriving Israeli fans of a particular non-Israeli singer of the ability to hear that singer in concert in Israel has any real political impact or message other than antisemitism. There is no evidence that such boycotts cause the victims to adopt the political messages of their persecutors and indeed one would expect the opposite to be the case.

Academic boycotts attempt to sever ties between Israeli universities (who are often leaders in their field) and local universities or prevent Israeli academics from lecturing. Not only does this damage the local institution as much, if not more than the Israeli one, but it delivers no political message other than antisemitism. Often the academics and institutions boycotted have the most left leaning “pro-Palestinian” outlook of any in Israeli society. Boycotting the Israeli’s most aligned with the BDSM’s supposed support of the Palestinian cause simply sends the anti-semitic message that all Israeli Jews are to be attacked, no matter what their political position.

Moreover, boycotts of “settlement products” harm Palestinian economic interests. The Israeli factories located in areas which the BDSM falsely considers occupied (and which was actually allocated for Jewish settlement under the binding international treaty – The Palestine Mandate 1922) employ many Palestinian workers and provide an important source of income for local Palestinian families and villages. Attempts to boycott these businesses even if “successful” in the eyes of the BDSM, will merely cause those businesses to close the factories employing Palestinians and move them to areas where they will employ only Israeli citizens or perhaps to cheaper employment markets in Asia. How exactly does replacing a Palestinian worker with an Israeli, Chinese or Indian one advance the Palestinian cause?

Thus any suggestion that a calls for economic, cultural and academic boycotts of Israeli organisations is legitimate political expression is exposed as patently false. It is instead a call for collective punishment of convenient and vulnerable Israeli targets who have nothing to do with the political issues which the persons calling for the boycott ostensibly support.

3. BDSM activity is disguised antisemitism

The real reason for all BDSM activity is disguised antisemitism.
Indeed the targeting of people or organisations for harm simply because they are Jewish is the classic definition of antisemitism.

Calling for boycotts of Israel and Israeli organisations, as practiced by the BDSM have recently been found to be anti-semitic by two of the most well respected international organisations expert in antisemitism, the Anti-Defamation League (ADL) and the Simon Wiesenthal Center.

Abe Foxman, National Director of the United States ADL has published full page advertisements in US newspapers stating that “The BDS movement at its very core is anti-semitic.” These statements by the ADL demonstrate that calls for boycotts of Israel are not legitimate speech even in the United States, let alone countries with greater protections against harmful speech such as Australia.

The Simon Wiesenthal Center has recently published a 40 page report under the title “Boycott Divestment Sanctions (BDS) Against Israel: An Anti-Semitic, Anti-Peace Poison Pill”. The report states that the BDSM “presents itself as a pro-peace initiative but in reality is a thinly-veiled, anti- Israel, antisemitic ‘poison pill,’ whose goal is the demonization, delegitimization, and ultimate demise of the Jewish State.” The report demonstrates how calls to boycott organisations solely because of their connection to Israel matches Natan Sharansky’s “three Ds” test for when legitimate criticism crosses the line into antisemitism.

4. Proposed Legal Action

If you do not cease your BDSM related activity immediately Shurat HaDin may commence legal action against you without further notice.
In particular, in addition to the remedies available under the Part IIB of the Australian Human Rights Commission Act 1986, the cooperative nature of the unlawful actions BDSM allows Shurat HaDin to bring a civil conspiracy action against participants in the BDSM. Such action will include a substantial claim for damages.

B. Any “successful” BDSM boycott is illegal under the Competition and Consumer Act
In addition to being unlawful under anti-discrimination law, boycotts of the type advanced by the BDSM are also illegal under section 45D of the Competition and Consumer Act 2010 (Cth) if they are successful in damaging the businesses they target or are likely to be successful. This section provides:

(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:

(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
(3) Subsection(1) applies if the fourth person is a corporation.
(4) Subsection(1) also applies if:

(a) the third person is a corporation and the fourth person is not a corporation; and

(b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.

The Australian Competition and Consumer Commission (ACCC) in investigating complaints regarding alleged breach of this section by members of the BDSM in the Max Brenner case found that all the substantive requirements for breach of this section were made out, except the requirement for substantial loss or damage.

Thus if any BDSM boycott activity is “successful” in the causing loss or damage to a Jewish or Israeli business then participants in it will be liable to legal action by the ACCC or private parties for damages.

Shurat HaDin requires you to immediately cease all BDSM related activity and provide written notice to Shurat HaDin of this within 14 days. Failure to do so may lead to legal action being brought against you without further notice.

Yours sincerely,

Andrew Hamilton Solicitor, NSW