Why Section 18C Can’t Silence Racists

Last month the Liberal-National Party governments in New South Wales and Victoria declared their opposition to Federal Attorney-General George Brandis’s proposal to repeal Section 18C of the Commonwealth’s Racial Discrimination Act, which prohibits acts “likely to offend, insult, humiliate or intimidate another person or a group of people”. Victor Dominello, the NSW Minister for Citizenship and Communities, and Matthew Guy, the Victorian Minister for Multicultural Affairs and Citizenship, lodged formal submissions opposing any change and put out a joint media release to influence their federal colleagues to support their stand.

Both said they considered it vital that the Commonwealth did not weaken protections in place against racial vilification. Mr Dominello produced a legal opinion from Arthur Moses SC warning that the protection Australians now received from racial vilification would be narrowed and, in particular, protection against Holocaust denial would be lost. Moses advised: “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’.”

However, technology has rendered this argument redundant. Anyone who Googles “holocaust denial” will find no less than 5.4 million internet offerings. The first page alone of Google’s search results offers writings from some of the worst contributors to this sleazy business, including the historian David Irving. It also links to at least forty YouTube videos where various American and European commentators can be seen and heard pushing the same line. Amazon.com will sell you almost any anti-Semitic book in the genre, including Mein Kampf and The Protocols of the Learned Elders of Zion. And on social media, well, the only rule there is anything goes.

It is true that, within the Australian jurisdiction, some individuals have been punished, such as Frederick Toben, who in 2009 received three months in jail for contempt of court for failing to remove Holocaust denial material from his website. However, the law is a very sluggish instrument. It took the Australia/Israel Jewish Affairs Council six years of appeals and counter-appeals to defeat Toben in the Federal Court. Yet today, he has still not been silenced. He now has his own entry in Wikipedia, complete with references.

Outside authoritarian states like China and North Korea, the internet has largely rendered censorship of political opinion impotent. Any Australian politician who pretends he can protect an ethnic group from views that are likely to offend or vilify its members is promising something he cannot deliver.

But if this is true, why bother to repeal Section 18C? Why not let it remain in the Act to discourage, however inefficiently, a few would-be imitators of Frederick Toben and his ilk from going public?

Some context is required here. The 1995 amendments to the Racial Discrimination Act of 1975, of which Section 18C was one of the new clauses, did not arise from any need to curb a sudden outbreak of racial abuse and intolerance in Australian society. Instead, they derived from an international political and intellectual movement of which Australia was only a small part.

In the 1990s, most Western countries adopted laws similar to Australia. Their aim was to suppress an array of opinions they argued would cause offence to people from racial and religious minorities. The principal exception to this was the United States, whose constitution specifically excludes laws to restrict freedom of speech. Nonetheless, during the administration of Bill Clinton, his government worked to embed the notions of multiculturalism and ethnic diversity into the American polity. Clinton declared this represented America’s third “great revolution”, after the first, the War of Independence, and the second, the civil rights movement.

Behind it all stood the United Nations, which claimed the era was one of escalating racism, new forms of discrimination and rising ideologies of intolerance. The UN and its agencies offered jurists throughout the world new grounds for legal adventurism and new scope to pursue careers. The result was a new round of legislation in most Western countries limiting freedom of speech on grounds defined over the previous two decades by various UN agencies. They included such UN “normative instruments” as the 2001 UNESCO Universal Declaration on Cultural Diversity, the 1995 Declaration of Principles on Tolerance, the 1978 Declaration on Race and Racial Prejudice, and the 1978 Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incite­ment to War.

Under the Keating government, Australia dutifully stepped into the role prescribed for it by passing into law the amendments that are now in dispute.

In his recent book, How We Invented Freedom, Daniel Hannan observes the irony of the timing of these laws. Throughout the Cold War, there had been absolute freedom of speech in most English-speaking countries, but once the menace of communism was gone, the same countries abandoned one of the core principles for which they had been fighting. Hannan writes:

Before 1989, people in English-speaking states liked to tell each other that, unlike the poor wretches behind the Iron Curtain, they couldn’t have their collar grabbed by a police officer for saying the wrong thing. Yet they are now regularly arrested for such offences as quoting Bible verses that might offend gay people, or being rude about jihadi extremists.

The result is that Britain, which had enjoyed an uncensored press since 1695, in 2013 formally brought in a system of state regulation. In Australia, the Gillard government attempted to do the same thing, but fortunately failed. In 2007, author Mark Steyn was taken to court in Canada for writing disparaging things about Muslims, and in 2011 Australian journalist Andrew Bolt was convicted of causing offence to Aborigines.

In April this year, two more examples involved writers well-known to Quadrant readers.

Daniel Pipes, the President of the Middle East Forum in Philadelphia, found his website had been banned from access at the British Library in London on the grounds of “Religion, Intolerance”. The algorithm that generated this ban was only changed after Pipes and a number of readers wrote to the library in protest. Yet the same algorithm had continued to allow readers access to a range of anti-Semitic, radical Islamist and jihadi websites, including Tawhed, Al Qaeda’s own Arabic-language website which promotes writings by Osama bin Laden and Ayman al-Zawahiri.

At the same time, Ayaan Hirsi Ali, the Somali-born critic of Islam, forced into hiding after attempts on her life in Holland, had been invited to Brandeis University in Boston to receive an honorary degree. However, a petition organised by a Muslim professor and a student accused her of being “a divisive individual”, asserting: “We cannot accept Ms Hirsi Ali’s triumphalist narrative of western civilisation, rooted in a core belief of the cultural backwardness of non-western peoples.” Faced with the petition and a letter from the Council on American Islamic Relations denouncing Ms Hirsi Ali as a “notorious Islamophobe”, Brandeis President Frederick M. Lawrence withdrew the invitation. Historian Jeffrey Herf, a Brandeis PhD holder, wrote an open letter to Lawrence accusing him of cowardice:

That the president of a university founded by Jews in the immediate aftermath of the Holocaust should have rescinded an honor to a woman who has had the courage to attack the most important source of Jew-hatred in the world today is a disgraceful act and failure of leadership.

These last two American incidents are worth recording because they demonstrate how heavily ironic it is that some people in Australia are justifying the retention of Section 18C on the grounds of preventing anti-Semitism. Yet the truth is the most demonstrably effective and enduring preventive of this prejudice is still a legal and political regime that preserves freedom of speech.

In fact, the history of Holocaust denial itself proves it. The most effective single demolition job on David Irving’s historical works was performed by Cambridge historian Richard Evans in 2000. For the defence in Irving’s defamation case against American academic Deborah Lipstadt, Evans spent two years checking the scholarship behind Irving’s works on Nazi history. He found Irving had used forged documents, ignored conflicting evidence, and misquoted historical records. Evans’s evidence in court and in his book Telling Lies About Hitler not only cost Irving his case, it systematically destroyed the credibility of the entire genre of Holocaust denial.

Proving the falsity of strongly held beliefs like this is never easy. It can only happen in a climate of unrestricted speech and unfettered research. It also needs institutions that provide the necessary resources. The real problem for Australia today is not the law but the fact that these conditions are so rare. Institutions that were once bastions of freedom, especially our universities, have, under the influence of the intellectual tendencies discussed here, betrayed their calling. Like Brandeis, many of them shun open debate under the pretence of protecting the vulnerable from oppression. They oppose rather than welcome dissent, and are openly politically partisan.

The repeal of Section 18C would be a small but helpful gesture in turning back this tide of intolerance and restoring some of the principles of free expression that Australian society once regarded as its cultural bedrock.