The Adaptability of Ron Merkel
by Keith Windschuttle
No one expects complete consistency between what a lawyer might say in a magazine article and what he says in court on behalf of a client. Lawyers, after all, are hired guns for those they are defending. Some variations in their diverse pleadings should hardly raise eyebrows. But, as Julia Gillard has recently reminded us, you have to draw a line somewhere. This is especially true the more extreme the case a lawyer is arguing.
In the Andrew Bolt trial for racial vilification last year, barrister and former Federal Court judge Ron Merkel told Justice Bromberg that one reason he should decide for the plaintiffs was the danger Bolt’s comments posed for race relations. By questioning the Aboriginal status of Merkel’s clients, Bolt had put Australia on a slippery slope towards the situation that prevailed in Germany under the Nuremberg Laws. Enacted by the Nazis in 1935, those laws deprived German Jews of citizenship, prohibited marriage and sexual relations between Jews and Germans, and were a signal of the Nazi’s ultimately murderous intentions. Merkel told the judge that Bolt was a man in a “time warp” and the views he espoused were “exactly the kind of thing that led to the Nuremberg race laws”.
This was an outlandish prediction to make about Australia. It is patently absurd to suggest this country could ever go down the same road as the Nazis. This is especially true today, given the widespread practice and long-standing acceptance of inter-racial marriage. Merkel’s resort to it was a low blow in an unworthy case, especially given how far it varied from his own publicly expressed views on the subject.
In Quadrant, November 1994, Merkel wrote an article opposed to the racial vilification amendments the Keating government was then proposing to the Racial Discrimination Act. In a two-page critique of the amendments, Merkel noted it was significant that the Royal Commission into Aboriginal Deaths in custody recommended against criminal sanctions for racial vilification, adding: “It is pleasing that so far that recommendation has been accepted.”
Merkel wrote this when he was president of the Australian Council for Civil Liberties, and the Quadrant article identified him as such. Again, there is nothing surprising about a civil liberties spokesman taking such a line to try to influence proposed legislation. In 1994 Merkel was just doing his job. It is arguable, though hardly convincing, that he was only doing the same in the Bolt trial. But when a barrister makes a political argument in court that is opposed to views he once publicly wrote about the very same legislation, he has obviously jumped a fairly big fence. When a judge accepts such a dodgy case without demure, as Bromberg apparently did, justice is not being seen to be done.
Merkel’s article was published under Robert Manne’s editorship of Quadrant and those of us now responsible for the journal were either unaware or had forgotten its existence. So we are publishing it here again. As they say on TV, you be the judge.
Ron Merkel in the Quadrant Forum:
Does Australia Need a Racial Vilification Law?
Quadrant, November 1994
Freedom of speech is indivisible, unless we protect it for all, we will have it for none.
Harry Kalven Jr
It is technically impossible to write an anti-speech code that cannot be twisted against speech nobody means to bar. It has been tried and tried and tried.
Eleanor Holmes Norton
The Racial Discrimination Amendment Bill 1992, as presently proposed by the Commonwealth government, is a carefully considered and well-intentioned endeavour to combat the undoubted cancer of racial intolerance. It has given rise to concern and unease as it brings into conflict the understandable expectation of protection from racism and the right to freedom of speech and expression.
The bill uses the law to prohibit the expression of statements, ideas and emotions which were previously lawful. Does it create one problem without solving another?
The starting point is the role of government in this area of the law. In 1854 J.S. Mill wrote that the only purpose for which power can be exercised over any member of a civilised community against his or her will is to prevent physical harm to persons or property.
It has been generally accepted that it is not the role of government to dictate or regulate what people may read and say. The rationale was expressed in the US First Amendment cases protecting freedom of speech—“if there was any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion”. More recently the US Supreme Court reaffirmed that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
Unfortunately the freedom will always be tested at the extremes. The right to express centrist ideas and views will never be an issue. For the freedom to have meaning it must embrace the right to be wrong. Unpopular, divergent, derided or even dangerous ideas may best be dealt with by exposing the ideas and those that profess them for what they are. Silencing such ideas has not made them disappear.
What does the bill do? Its creation of the criminal offence of racial incitement may not be objectionable. It is a reasonable conclusion that public acts with the intention of stirring up racial hatred and instilling fear on grounds of race, colour, national or ethnic origin are but a stepping stone away from racial assault and violence. Conduct with that intent is not just an expression of ideas or views. Accordingly, its claim to protection is not a strong one when measured against its proximity to real and actual harm to persons and property entitled to the protection of the law in that regard.
The potential problem in this bill lies elsewhere. It makes unlawful public acts of any kind which are likely to stir up hatred, serious contempt or severe ridicule on grounds of race, colour, national or ethnic origin. Unlike racial incitement this area of unlawful conduct, although not criminal, can and does attack the expression of genuinely, although mistakenly, held ideas or views—that is, the right to be wrong. Expressions of intense dislike or detestation of the practices of a racial group can amount to vilification.
Defenders of the legislation suggest the bill does not unduly impede freedom of speech because there must be an intent to promote hatred of a group. Whilst it is true that the law requires that subjective element for racial incitement it does not do so for racial vilification. It may suffice for unlawful conduct that you know or expect that your conduct is vilifying but you do not engage in it with the intent of promoting hatred. In practice, that difference can be significant.
The operation of this law is clearly going to be a breeding ground for controversy. That is particularly so as its provisions can be easily invoked.
The evidence falls short of a demonstrated need for racial vilification legislation. The reports recommending the law are ambivalent about whether outlawing racial vilification will defeat racism. The weight of evidence does not support the fear that without such a law Australia is heading towards the inter-racial violence that has racked many other racially diverse societies. It was not established that there was a national crisis in community relations which required legislative intervention. There must be grave doubt about such significant law reform occurring on a basis that is not demonstrated to have stemmed from a need based on harm caused by previous public acts of racial vilification.
History has taught us that racial incidents will occur with or without legislation. Many who support such a law overlook the tolerance that has been created over time in our community. The history of Chinese, Central European, Italian,Greek, Arabic and more recently Vietnamese immigration to Australia has taught us that whilst short-term dislocation and difficulties are inevitable, in the longer term they are able to be overcome without the sledgehammer of legal intervention. Indeed our society may be healthier as a result of the process of exposure and controversy which led to the reduction of that intolerance and prejudice over time.
Many assume that the bill will only protect disadvantaged minority groups. That assumption is wrong.
It is significant that the Royal Commission into Aboriginal Deaths in Custody recommended against criminal sanctions for racial vilification. It is pleasing that so far that recommendation has been accepted. Aborigines have strong and emotional views about their decimation by “white” Australians—they may be expressed in confrontations with police and others. Under this law that can be unlawful conduct. If that occurs “White Australia” may very well have a blacker history in that regard than previously believed.
Recently there has been much revulsion over the slaughter of innocent civilians in Bosnia by Serbian militia. Will the expression of strong and even racist views against the current surge of Serbian nationalists be prohibited? There are many inter-racial tensions between different communities in Australia which temporarily reflect racial tensions in their homelands. Those tensions will give rise to the expression of ideas and thoughts that are likely to offend this legislation. This is abhorrent but not a subject matter for this prohibitory law. Conciliation, education and counselling mechanisms rather than unlawful conduct are a preferable course.
Then there is the problem of who the law will catch. The inarticulate, ill-tempered, clumsy or uneducated are likely to be prime candidates. Yet no-one believes that they are the purveyors of harmful racism in our community.
Civil libertarians in the US argue that attempting to bury racist speech underground may only make martyrs of the speakers and solidify the attitudes they express. History tells us that censorship invites—and incites—resistance. Nothing in our national experience suggests that silencing evil has ever corrected it. They add that to eradicate racism we need to listen to the words which are expressed, to delve beneath them, to find our own words of reply and explanation, before we can even begin to make the changes we seek.
On the other hand, for those who defend the right to such speech the lesson is clear. Those who seek to protect the right of racists to express their views have a corresponding duty to expose those views for the evil that they represent. It is through the process of exposure and education rather than prohibition that we can achieve a tolerant and understanding community.
The legislative path against racial vilification has not been shown to be successful elsewhere and there is no reason to believe it will be any more successful in Australia. On the other hand the educative path has been shown to be successful wherever it has been tried and achieved. The bill may have been entitled to a more sympathetic reception if that path had been vigorously pursued in Australia but had failed.
First published in Quadrant, November 1994