10 May 2012
National Anti-Racism Secretariat
Race Discrimination Team
Australian Human Rights Commission
GPO Box 5218
Sydney NSW 2001
Email:
Dear Sir/Madam
Re: National Anti-Racism Strategy for Australia
Thank you for the opportunity to have input into the development of a new National Anti-Racism Strategy for Australia. Our organisation, which is the peak national body that represents the Jewish community throughout Australia, welcomes the Australian Government’s initiative in developing such a strategy.
The annual reports on Antisemitism in Australia published by our organisation over the last 20 years have identified some persistent themes in contemporary Antisemitic vilification including the myth of an international Jewish conspiracy and attacks on the "Jewish lobby"; Holocaust denial as a form of harassment, often accompanied by Nazi-Jewish analogies and assertions that the history of the Holocaust is a Jewish invention; anti-Israel propaganda as a vehicle for denigrating the Jewish people; and more traditional anti-Jewish stereotypes and religious misrepresentations.
For reasons which will be obvious to anyone familiar with the history of the Jewish people, our community has a special interest in, and commitment to, combating racism in all its forms, including Antisemitism. The policy platform of our organisation expressly calls for government and community action to support social inclusion, aboriginal reconciliation and multiculturalism and to oppose and prevent all forms of racism. Copies of the relevant policies are set out in Appendix 1.
1. The nature of the problem
Although Australia is generally a tolerant and peaceful place compared to most other countries, racism remains a serious problem. As the National Anti-Racism Partnership and Strategy (NARPS) Discussion Paper - 2012 noted, racism in Australia manifests itself most frequently in non-overtly-violent forms such as exclusion from full participation in society, impediments to equity and access in the availability of services and public acts of vilification. Yet it has long been recognised that violence often lies just below the surface, particularly in connection with racial vilification, and has occasionally burst forth in all its ugliness into full public view.
As early as 1991, the Report of the National Inquiry into Racist Violence in Australia[1] noted high levels of violence in Australia induced by racial hatred, as did the report of the Royal Commission into Aboriginal Deaths in Custody the same year.[2] Both reports recommended legislative intervention to proscribe racial vilification. They recommended the introduction of a range of remedies including, in the case of the first Report, criminal sanctions.
Subsequent developments have included:
· The rise to prominence, and subsequent fall, of the One Nation Party (ONP) between 1996 and 1999. The ONP’s official platform included abolishing policies related to Aboriginal and multicultural affairs and restricting immigration.[3] The rhetoric of many of its leaders led to frequent allegations of anti-Aboriginal and anti-Asian racism.
· On the evening of Saturday, 14 February 2004 riots broke out in Redfern in Sydney sparked by the death of Thomas 'T.J.' Hickey, a 17-year-old indigenous Australian.
· On 19 November 2004, civic disturbances began on Palm Island in Queensland following the death of an indigenous resident, Mulrunji in a police cell. The events led to the first trial of an Australian police officer for a death in custody. The officer was acquitted by a jury in June 2007.
· In March 2005 the NSW Bureau of Crime Statistics and Research released a report that concluded that racist taunts are a principal cause of violence in schools.[4] That is an experience unfortunately shared from time to time by Jewish as well as other students and teachers.[5]
· Racial violence against people ‘of middle eastern appearance’ developed into a full-blown riot at Cronulla beach in Sydney on 11 December 2005 and led to retaliatory riots by young men from the Lebanese Muslim community over subsequent nights. Several countries issued warnings against travelling to Australia.
· On 14 October 2006, a Jewish Hasidic man named Menachem Vorscheimer, while walking on the street, had his religious garments removed from him and was punched in the face in front of his two children by a team of drunken footballers on a passing bus.
· In 2009, a political controversy erupted in Australia and in India as to whether a spate of physical attacks against Indian students in Sydney and Melbourne over the previous three years, including several knifings and murders, had been racially motivated.
Racism in Australia should therefore be seen not only as a source of discrimination and injustice but also as a potential source of violence that threatens the cohesiveness and peace of Australian society. It needs to be addressed at both levels simultaneously.
2. Defining racism
There is no single, straightforward definition of racism. In general, racism is an attitude based on prejudice, but it takes many forms and adapts to changing circumstances. At its root, racism is an aversion to or diminution of the “other” based on an actual or perceived difference in race, colour, descent or national, ethnic or ethno-religious origin.[6] The aversion or diminution can manifest itself and be rationalised in a multitude of ways.
The categorisation of persons into social groups, including groups identified by race, and the attribution of characteristics to these groups (stereotypes) can be seen as helping to satisfy the human need for understanding by simplifying the complexities of the social world. This suggests that “social categorisation and stereotyping has a fundamental and universal cognitive base”[7] and that social categorisation entails some degree of stereotyping.
“Many laboratory and field studies have shown that the mere act of categorising individuals into distinct groups is sufficient to trigger ingroup favouritism and outgroup discrimination...Other cognitive consequences linked to social categorisation include the exaggeration of differences between groups; the accentuation of similarities between self and other ingroup members...; and the tendency to perceive an outgroup and its members as more homogeneous (‘they are all the same’) than ingroup members...
[S]tereotypes can be activated automatically without conscious awareness, even among people who embrace egalitarian beliefs.”[8]
Although social categorisation and stereotyping create a conceptual framework for racism, they do not make racism inevitable. The leap from social categorisation and stereotyping to feelings of aversion towards or diminution of members of a perceived outgroup is based on other, non-cognitve factors. The necessary motivation to make the jump from categorisation to aversion can emerge from a need for self-esteem, and to overcome feelings of insecurity and inadequacy; competition for jobs and scarce resources, especially during periods of economic hardship; anger in reaction against oppression; or guilt and fear by members of a socially dominant group in respect of their unjustified privileges.[9]
The NARPS Discussion Paper (at page 3) therefore over-simplifies when it defines racism as “a belief that a particular race or ethnicity is inferior or superior to others”, or indeed as the product of any kind of purely intellectual process, whether evidence-based or otherwise. People who are motivated emotionally and psychologically or by self-interest to accept racist beliefs will do so even when there is overwhelming evidence that should have led them to give up those beliefs. The “reasons” proffered for racist attitudes are rationalisations, usually ex post facto.
Most racists are aware of their false beliefs but they deceive themselves into believing the truth of their beliefs and they rationalize their bad actions and behaviors that arise from the false beliefs. Morally, racists choose not to live the best moral life they can and they make moral choices and decisions that are not morally and rationally informed. So, because racism involves essentially false personal beliefs and negative attitudes, I disagree with the views that a social institution of power is necessary for racism and for one to be a racist, in the sense that there cannot be racism without the social institution of power. I also disagree with the views that racism involves attitudes and beliefs that must be manifested negatively in one’s bad actions or behaviors.[10]
Two things follow from this:
(i) Racism is not invariably directed by the powerful against the powerless or by the majority against the minority. The reverse (‘reverse racism’) can and does occur. In our view, the credibility of the National Anti-Racism Strategy among the many Australians who do not identify as part of an ethnic community will depend in part upon the strategy also addressing, and being seen to address, reverse racism. A distinct part of the strategy must be directed towards counter-acting prejudices and stereotypes commonly held by members of minority communities against the majority and against other minority communities, and imbuing respect in their place.
(ii) Education aimed at preventing or counter-acting racism should not be limited to the mere presentation of facts and dispelling of falsehoods. To be effective, such education should also become exercises in self-understanding and in understanding the motivations of others. (See under section 4 below). As tolerance and, ultimately, respect are nurtured, appropriate practices need to be rewarded effectively, and inappropriate practices actively discouraged.
3. The Legal Framework
No serious advocate of legislative measures aimed at counter-acting and preventing racism would contend that such measures alone can be a sufficient response to the problem of racism. It is a truism that one cannot legislate to abolish prejudice. Education, from school age onwards, is essential for attacking prejudice in the long term. However, the two approaches are not mutually exclusive. Both educative and legislative measures can, and in our view should, be employed simultaneously. Further, by establishing a clear community standard, legislative measures themselves have an educative value which should not be underestimated.
· Liability for Racial Vilification
Legislation has been enacted by the Commonwealth and by each of the States and the ACT to prohibit both discrimination and vilification on the basis of race. Legislative provisions directed against racial discrimination address some of the consequences of racism, but only the provisions that are directed against incitement address the manipulation of underlying emotions such as hatred and contempt.
The liability imposed for racial vilification can be civil and/or criminal. In this regard, the treatment of racial vilification in Australia is far from uniform, as is summarised in the table below.
LIABILITY FOR RACIAL VILIFICATION IN AUSTRALIA
JURISDICTION / LIABILITYCommonwealth / Civil only
New South Wales / Civil and Criminal
Queensland / Civil and Criminal
South Australia / Civil and Criminal
Tasmania / Civil only
Victoria / Civil and Criminal
Western Australia / Criminal only
Australian Capital Territory / Civil and Criminal
Northern Territory / Nil
Other variations in the relevant law from jurisdiction to jurisdiction include the following:
· Victoria, Queensland and Tasmania are the only States that have additional legislative provisions imposing liability for religious vilification which is often, and erroneously, conflated with racial vilification;
· The formulation of the civil prohibition in the Commonwealth legislation[11] differs significantly from the formulation of the equivalent provisions in the legislation of the States and the ACT;
· The criminal liability regime in Chapter XI of Western Australia’s Criminal Code (racist harassment and incitement to racialhatred) differs significantly from that contained in the legislation of other jurisdictions, which only take effect if the vilification amounts to incitement to commit violence.
· It is only in Western Australia that the criminal proscription of racial vilification has been tested in an actual prosecution[12] and been the subject of judicial interpretation.[13]
There is now abundant evidence that the present remedies in Australia are inadequate and inappropriate for dealing with determined racist agitators who are not ashamed to identify themselves as racists. A review of the effectiveness of the current legislative provisions prohibiting racial vilification across Australia should be undertaken as a part of the National Anti-Racism Strategy.
The review should also assess the appropriateness of the fact that the RDA fails to criminalise racial vilification, as required by Article 4(a) of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), and that Australia has relied upon its reservation to that Article for this failure.
The UN’s ICERD Committee has for some years recommended that Australia withdraw its reservation and enact legislation to give full effect to Article 4(a) of the ICERD, especially serious acts of racial hatred, incitement to such acts and incitement to racial hatred.[14]
The ECAJ endorses the ICERD Committee’s recommendation and concurs with the Committee’s reasons and supports the submissions concerning Article 4 of the ICERD which were made to the Australian Government in June 2010 by the National Association of Community Legal Centres and the Human Rights Resource Centre, and endorsed by more than 100 NGO’s across Australia.[15]
Any legislative review should assess whether the Government should implement this recommendation by introducing suitable criminal sanctions for intentional racial incitement and for serious harassing and intimidating behaviour on the ground of “race”, whether or not such behaviour amounts to incitement to violence. We believe the provisions of Chapter XIof the Criminal Code of Western Australia deal with the matter of serious and intentional incitement to racial hatred in an appropriate and effective manner. The review should recommend whether substantially similar provisions should be enacted for Australia as a whole by the Federal Parliament.
On the other hand, it will be recognised that the prohibition of offensive behaviour on the ground of religious belief presents more difficult problems in reconciling competing rights. Certainly the right to engage in civilised debate about the merits of any religion is central to our democracy, and anything in the nature of blasphemy laws would be intolerable. We do not advocate legislation prohibiting religious vilification per se or including this issue in any review of the existing legislation.
· Cyber racism
Australia currently lacks a distinct legal regime to deal with cyber racism. Under the present law[16], even if a court or tribunal makes an order or declaration based on a finding that the publication of online content is in breach of any Federal or State law (including Part IIA of the RDA), that order or declaration does not enliven any of the powers in relation to such material that the Australian Communications and Media Authority (ACMA) currently possesses in relation to material classified as ‘RC’ by the Classification Board. Those powers include the power to issue take-down notices to Internet Service Providers (ISPs) and should be extended to apply to any online content the publication of which is in breach of the law.