Big Jewish community stake in outcome of parliamentary Inquiry
The parliamentary Inquiry into freedom of speech in Australia, which is looking into section 18C of the Racial Discrimination Act, is set to continue its public hearings around Australia in the next fortnight.
The last two hearings will be in Brisbane and Darwin and are scheduled for February 10 and 20. The Inquiry is due to report back to parliament by February 28.
Appearing before the Inquiry on February 1, ECAJ Executive Director Peter Wertheim warned that any watering down of section 18C would require the Jewish community to take another round of test cases to court. “It took us years of legal action in the court to establish the legal parameters for the interpretation and application of sections 18C and 18D in landmark cases”. According to Wertheim, “a great deal of time, effort and resources had to be put into pursuing those cases”.
Peter Wertheim
Asked by Liberal MP, Julian Leeser, a former ECAJ Councillor, what the Jewish community did about public antisemitic statements before section 18C became law, Wertheim replied: “all that could be done would be to approach the publishers of those statements, cap in hand as it were, and explain to them why what they had published was racist, why it was wrong and appeal to them to do the right thing. Now, in many cases that was effective, but obviously in many other cases it was not, and it was done from a point of view where the balance of bargaining power, as it were, was very much against us and in favour of the publisher. That is still the case, by the way, even with section 18C in place. Contrary to public perception, the balance of power is not with the complainant at all. In most cases complainants are just individuals who are motivated to act against racist conduct that has affected them. The respondents are not always, but very often, well-resourced media corporations, social media companies and so on. That was certainly my experience in the most recent conciliation that we concluded for a complaint against a major global social media platform company. Again, it was successfully concluded, but they had batteries of lawyers, and we just had us.”
Wertheim was also asked whether he thought the relevant standard for assessing whether section 18C has been contravened should be that of a reasonable person in the Australian community or, alternatively, a reasonable person in the affected community. “I am concerned that having a more general test is not justified by the decided cases”, Wertheim said. “Firstly. I do not think there has been any decided case that would have been decided differently if there had been a more general standard as compared to the standard that has been applied. But, more generally, I am concerned that a general community standard test might inadvertently import prevailing prejudices in the community into the test, so that one of the protective functions of 18C would be abrogated. One of those protective functions is to protect vulnerable and, in particular, unpopular minorities. So if there is prevailing prejudice against a minority community which happens at the time to be unpopular—and many of our communities that I mentioned earlier have been, at various stages of Australian history, in that category—then there is a danger that the application of a more general community standard test will undermine the basic protective function of the legislation.”
In response to a question from Liberal Senator James Pattison, Wertheim said he does not believe the combination of civil censure in Australia and an amended section 18C would provide vulnerable communities with sufficient protection. Citing the infamous Le Lievre cartoon in the Sydney Morning Herald that had caused a furore in 2014, Wertheim noted that “It took 10 days for the senior editorial writers and journalists at the Herald to finally acknowledge that this had crossed the line,” and concluded “so I do not believe our civic culture is mature enough to automatically say that you can always rely on people to do the right thing”. He added that the reason an apology had issued was not just social censure. “There was the threat of litigation, and it was racial vilification litigation that was being threatened…under the equivalent state legislation, the New South Wales Anti-Discrimination Act, section 20C”.
Greens Senator Nick McKimm asked Wertheim whether proposals to screen out spurious claims might inadvertently result in denying access to justice to people with genuine complainants. Wertheim conceded this would be possible, but added that the number of such cases would be “very, very small”. According to Wertheim “a respondent would have to go through several hoops before it came to getting an order for security for costs against the complainant.”
Wertheim told the Inquiry that the NSW Jewish Board of Deputies and the Jewish Community Council of Victoria, the roof bodies representing the two largest Jewish communities in Australia, have 115 major Jewish organisations affiliated to them collectively including synagogues, Jewish schools, women’s organisations, sporting organisations and cultural organisations. “They all come under the umbrella of their State roof bodies which in turn come under the umbrella of the ECAJ.”
Wertheim informed the Inquiry that these State roof bodies and the ECAJ have each passed unanimous resolutions calling for sections 18C and 18D should be left intact.
