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Can we dump s18C now

Memo to Colin Rubenstein: freedom-loving friends of Israel should oppose this wretched law

15 September 2012

6:00 AM

15 September 2012

6:00 AM

I’m one of the most pro-Israel people to earn a living in an Australian university. I see a democracy surrounded by non-democracies, though some are improving on that score. I see a country whose very existence is not accepted by many, no, most, of its neighbours. I look at the Middle East and observe that Israel is far from perfect but is nevertheless by far the best of those countries, in terms of theocracy, totalitarianism, the treatment of minorities and women, you name it.

I also see a ridiculous anti-Israel bias at the UN, a near-obsession with Israel’s perceived wrongs while those of much worse jurisdictions are ignored.

So to my mind no jurisdiction is perfect, is morally unblemished, but compare like with like and Israel looks good. Full stop.

I suppose some people would call me a pro-Israel purist for that sort of thinking. But I don’t mind what they call me. I reckon that when you live in a healthy, vibrant democracy you ought to have the courage of your convictions and make the case for your views. And I trust my fellow Australians to make sensible decisions having heard all sides of the debate.

Indeed, I take comfort from the general reaction to the Green party’s wholly misguided views on Israel and that party’s support for boycotting certain businesses. But I certainly wouldn’t want to silence the Greens.

I start this piece in that roundabout way because Dr Colin Rubenstein recently wrote an opinion piece in the Australian arguing for a retention of some parts of this country’s awful hate speech laws. Rubenstein says that people like me who want them all to be repealed, in the way that the s13 Canadian provision employed to go after Mark Steyn was recently repealed in Canada’s House of Commons, are ‘free speech purists’.

Well, not really Dr Rubenstein. No more than people who support Israel are purists.

The debate about free speech and hate speech laws is not about who is a purist or an absolutist, however much such characterisations may help blow smoke in readers’ eyes and obscure what is going on.

No, the debate is wholly and solely about where to draw the line in a vibrant and well-functioning democracy when it comes to what people can and cannot say. In the US there are no hate speech laws at all, nothing of the sort Dr Rubenstein endorses and says we simply must have in Australia. (I suppose he thinks Americans are more to be trusted with assessing dumb, stupid speech than Aussies. Who knows?)

But the point is that even in the US there is some speech that is proscribed. You can’t say absolutely anything, even there. You can’t counsel murder. You can’t deal in certain types of child pornography.

So those sort of cheap and misleading labels when arguing to retain parts of our awful hate speech laws here in Australia are neither here nor there.

The main argument against all hate speech laws is one of principle going back to the Enlightenment. You see, anyone can be in favour of speech they agree with. That’s the ‘Kumbaya’ version of free speech.

It’s worthless.

The value of free speech comes in allowing scope for people to air views we dislike, think wrong and even detest because such scope has good long-term consequences for society. As J.S. Mill saw it, it creates a cauldron of competing views where over time the idiotic ones get found out, not pushed underground to make its speakers into martyrs.

You get closer to truth when you let it all hang out, baby, than when government overseers, even a bunch of ex-lawyer judges, are in place to tell us what we can hear.

Or as the late Christopher Hitchens put it: ‘It’s not just the right of the person who speaks to be heard, it is the right of everyone in the audience to listen. And every time you silence someone you make yourself a prisoner of your own action… Your own right to hear is as much involved in these cases as is the right of the other to voice his view.’

At core Dr Rubenstein doesn’t trust the rest of us Australians to see that some neo-Nazi Holocaust-denier is a moron. We can get rid of bits of this egregious law, he tells the Coalition, but not all of it, because who knows how gullible we Australians might be when confronted with a hate-spewing, Holocaust-denying, brown shirt-wearing little git, or however Dr Rubenstein imagines this scenario.

Well, Dr Rubenstein, you’re wrong in your lack of trust in ordinary Australians. Sure, I could point out that in Weimar Germany they had hate speech laws galore and that did nothing. But even making that analogy is ridiculous because, to be blunt, Australia is nothing like Weimar Germany.

Indeed, there is more anti-Semitism in a day in just about any Middle Eastern country than in Australia in a decade. Sure, there’s the odd octogenarian neo-Nazi Holocaust-denier here in Australia. And there are even more Islamic extremists who spew anti-Semitism.

But let them speak, Dr Rubenstein. They do more to discredit their case than anyone else. Their views don’t stand up to any sort of scrutiny. And if you doubt the ability of the vast proportion of us to come to that conclusion, you’re lost anyway.

All of s18C of the Racial Discrimination Act needs to go, because the nice, neat little pseudo-compromise Dr Rubenstein imagines (and the Coalition is mooting), that changes can be made to stop Andrew Bolt-type uses of the law but to still allow really, truly, cross-your-heart-and-hope-to-die uses against ‘real’ hate speech, simply won’t work.

All rules will always be under- and over-inclusive. Abuse of these laws, if they are retained, is inevitable. Hate is not something that should be within the jurisdiction of unelected judges. It should be left for all of us to assess and dismiss with scorn and contempt, just as in the US.

This is simply part of living in a healthy democracy.

Dr Rubenstein describes people who support free speech as I do as ‘those whose primary political preoccupation is a campaign for absolute free speech at all costs’. Leave aside the laughable mischaracterisation here about my and others’ preoccupations, the sort of mischaracterisation Rubenstein wouldn’t tolerate when it comes to Israel, and remember that the costs of limiting this sort of free speech are far worse than the costs of allowing it.

James Allan is Garrick Professor of Law at the University of Queensland.

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