565 Jewish Lobby pushes for more Hate laws, but Jim Spigelman warns of threat to Free Speech

Jewish Lobby pushes for more Hate laws, but Jim Spigelman warns of
threat to Free Speech

(1) Jim Spigelman's high-profile campaign defies the Lobby
(2) The Hate Crimes Prevention Bill: Why Do Jewish Organizations Support
It? - Kevin MacDonald (US, 2009)
(3) We still need race hate laws - Colin Rubenstein (of Australia/Israel
& Jewish Affairs Council)
(4) James Spigelman warns of Hate Speech bill: being Offended is Subjective
(5) Jim Spigelman warns on Hate speech bill: where to draw the line
(6) ABC chairman Jim Spigelman: "the right to offend is inherent in the
right to free speech"
(7) Big Brother Anti-Discrimination Legislation
(8) Federal government proposes MORE anti-discrimination laws
(9) New anti-discrimination bill threatens religious freedom, enshrines
“gender identity” and “sexual orientation”

(1) Jim Spigelman's high-profile campaign defies the Lobby
- Peter Myers, December 17, 2012

Jim Spigelman was a few years ahead of me, when I was at Sydney
University in the early 1970s. I remember that he was on the Student
Representative Council.

The push for Hate Laws comes from a coalition between the Jewish Lobby
and New Left "minorities" (Feminist, Gay, etc).

Given that opponents on the "Far Right" are marginalized as
anti-Semites, neo-Nazis or neo-Francoists, the new laws stood a good
chance of sailing through parliament unopposed. Spigelman, AC, QC, a
former chief justice of NSW, and now Chairman of the ABC, has mounted a
high-profile campaign in the major media - he's virtually been a one-man
band.

It's so good to see Jews loyal to the common good taking a stand,
neutralizing the extremists i.e. the Zionists on the Right and the
Trotskyists/Anarchists/Feminists on the Left.

We have had the same experience in our forums over the years. At first,
one can get the impression that all Jews are "bad guys" in either of
those extremist camps. But then one discovers courageous persons of
Jewish heritage in "our" camp too. Their role is very important, the
moreso as they have faced antagonism from Jewish organizations of Right
and Left.

The Director of Public Prosecutions in the UK has also come out against
Hate Laws that threaten Free Speech; in particular because "causing
Offense" is so subjective.

Personally, I think that there should be SOME limits on expression. One
might not like Islam - one might argue that it destroyed Hindu temples,
or that its has had bloody frontiers, or that it is anti-women - but
cartoons and films ridiculing Mohammad are beyond the pale. The former
are a matter of rational debate; the latter appeal only to the emotions.
The former count as speech or text; the latter do not.

Likewise the Pussy Riot desecration of a Russian Orthodox cathedral.
Those girls could have enacted an anti-Putin stunt as street theatre in
Moscow - minus the "Mother of God" bit. However, one suspects that they
would not have omitted that bit, because they were out to shift people
emotionally.

Multimedia productions - cartoons, films, stunts - should not be
categorized as "Free Speech". Their visual and audio cues are targeted
at the emotions: at persuasion or conversion rather than reasoning. What
should be especially protected is written debate and face-to-face
debate; and text, above all.

Christianity has been part of the American heritage for some centuries;
it is a bit much, then, for it to be excised from the public spaces.
Persons of other religions are free to conduct their holy days; most do
not find Christmas offensive, but some Jews and militant atheists do.

I call those promoting laws which threaten Free Speech "disloyal to the
common good". Should they be able to prosecute me for saying that? Of
course not: if normal debate is proscribed, democracy is dead. It would
be another matter if I physically attacked those people or damaged their
property; but such actions are already against the law.

I make a great effort to keep propaganda, ridicule and name-calling out
of these newsletters. However, I do not have time to read right through
every article I send out; the best I can do is skim-read it. As you
know, the range of topics covered in these bulletins is very wide; it
takes a lot of time and concentration to stay on top of so many issues,
while also attending to matters at home.

For my own purposes, I highlight certain words in bold type, mainly
headings. This does not show up in emails because I send them as text.
If I send them as html, it would show up. In the past, some readers have
opposed such a change; is there still such opposition?

(2) The Hate Crimes Prevention Bill: Why Do Jewish Organizations Support
It? - Kevin MacDonald (US, 2009)
http://www.vdare.com/articles/the-hate-crimes-prevention-bill-why-do-jewish-organizations-support-it

The Hate Crimes Prevention Bill: Why Do Jewish Organizations Support It?

By Kevin MacDonald on May 11, 2009 at 12:00am

The "Hate Crimes Prevention Bill" will be in the Senate Judiciary
Committee this week. It recently passed the House, causing the
Anti-Defamation League to rejoice. The ADL called the law "an essential
and necessary step forward in the national effort to counter hate
crimes" and urged passage by the Senate.

It also congratulated itself on taking a leadership role in promoting
this legislation for the last 10 years. Other Jewish organizations have
also been at the forefront of promoting "hate crime" legislation in the
US and throughout the West.

Needless to say, here are very sound reasons to oppose this legislation.
"Hate Crime" laws are superfluous, since crimes such as murder or
assault are crimes whatever the motivation. Moreover, as Paul Craig
Roberts recently pointed out there is a pronounced tendency for American
legislation to metastasize into regulations far different and much more
sweeping than the enactors envisaged (or admitted). This alone is reason
enough to oppose any legislative advance into the areas of motivation or
opinion. It is inevitable that "Hate Crimes" will quickly come to
include political speech, specifically on immigration.

Why are Jewish organizations so committed to this drive to abolish free
speech? Sadly, such an attitude is entirely within the Jewish tradition.
Jewish groups have a long history of powerful controls over group
members, ranging from regulations on economic behavior and charity
toward other Jews, to regulating behavior likely to give rise to
anti-Semitism or likely to damage other interests of the group.

One aspect of this is that there was little history of free speech
within traditional Jewish societies. Historically, Israel Shahak and
Norton Mezvinsky point out, rabbis and other elite members of the
Ashkenazi and Sephardic communities had extraordinary power over other
Jews— literally the power of life and death. And they were highly
intolerant. Jews accused of heretical religious views were beaten or
murdered. Their books were burned or buried in cemeteries. When a
heretic died, his body was beaten by a special burial committee, placed
in a cart filled with dung, and deposited outside the Jewish cemetery.

This repressive tradition continues. Notwithstanding the image of freely
tolerating dissent within the Jewish community ("Two Jews, three
opinions"), John Mearsheimer and Steven Walt have shown that on
important issues like Israel, Jewish dissenters are marginalized and
there is strong pressure to limit disagreement. Jews can criticize
Israel but only out of public view. Mearsheimer and Walt note that
pro-Israel activism is dominated by "hard-line Zionists, Orthodox, and
neoconservative circles". As has happened so often in Jewish history,
the most committed Jews have determined the direction of the Jewish
community, with the result that the leadership of pro-Israel
organizations tends to be more radical than the rest of the American
Jewish community

Already, elsewhere in the English-speaking world, the "Hate Crime"
strategy has been used to repress views unwelcome to Jewish organizations.

In Canada, for example, as the Jewish journalist Ezra Levant has
described, Jewish organizations and activists have been a major source
of support for the Canadian Human Rights Commission, an organization
whose role is to enforce "hate speech" totalitarianism.

Levant describes the Simon Wiesenthal Center as "one of the most vicious
interveners in Canadian Human Rights Commission censorship trials."

Bernie Farber, Chief Executive Officer of the Canadian Jewish Congress,
claimed recently that "our anti-hate laws are probably the most
underused." Levant comments:

"That sounds like Ian Fine, senior counsel for the CHRC, who declared
that 'there can't be enough laws against hate.' … Farber … wants more
censorship, more government intervention into thoughts and ideas — and
the emotion called 'hate'."

A good example of this intolerance for speech they don't like is the
response of Canada's organized Jewish community to recent demonstrations
against Israel. The Canadian Jewish Congress complained that protests
against Israel's incursion into Gaza contained images that were
"uncivil, un-Canadian, that demonize Jews and Israelis," and is asking
the police to investigate the matter for referral to the CHRC.

Nevertheless, despite the strong support of the organized Jewish
community for thought crime legislation, the CJC's Farber has the
effrontery to claim "we are firm supporters and believers in the need to
be able to demonstrate passionately in free and democratic societies".

Perhaps he is excluding Canada from the ranks of "free and democratic"
societies. In that he would be quite right.

In Australia, Jewish organizations have also been leading the push to
criminalize thought. Andrew Fraser, a former professor of public law at
Macquarie University in Sydney, was brought before the Australian Human
Rights and Equal Opportunity Commission because he had written a letter
published in a newspaper suggesting that "once black African colonies in
Australia grow in size and in confidence, one can reasonably expect a
number of social problems and rising levels of crime and violence." In
his comments before the Commission, Fraser noted that the charges
against him by an African had actually been instigated by "several
organized Jewish groups that boast openly of the campaign they have
organized against me," citing articles in Jewish newspapers. Fraser
wrote that Jewish individuals and organizations had acted "to further
their shared ethnic interest in the growth of a multi-racial society in
Australia."

In a wonderful passage, Fraser states that he has no objection against
African and Jewish groups pursuing their interests in making Australia
into a multi-racial society—

"But they must understand that, as Australia becomes a multi-racial
society, it is inevitable that Anglo-Australians, having observed the
self-interested activities of other racial, ethnic and religious groups,
are bound to become more conscious of their own distinctive racial
identity. Many white Australians already feel that they are losing their
ancestral homeland to a massive influx of Third World migrants hostile
or indifferent to the ethnic interests of the host society. … The simple
fact is that a multi-racial immigration policy is not obviously and
necessarily in the best interests of white Australians."

Exactly. But the problem is that there is an imposing array of national
and international organizations that are both promoting non-White
immigration into formerly European countries, and attempting to
criminalize any dissent from that policy.

Already we see intellectual justifications (see also here and here) from
legal scholars aimed at making American law more in line with European
and Canadian laws limiting freedom of speech on multicultural issues.
(Importing foreign law into American courts is a particular cause of
Ruth Bader Ginsberg, one of the Supreme Court's two Jewish Justices).

Two reasons explain the tremendous push by Jewish organizations for
"Hate" laws. The first is, obviously, Israel. Zionists in America have
succeeded in turning the U.S. into a client state of Israel and in
commandeering huge quantities of American resources in its defense. This
is an astonishing achievement, far removed from any obvious interests of
the majority population in the U.S. As the task gets more difficult, the
temptation to repress grows.

William I. Robinson, a Jewish sociology professor at the University of
California–Santa Barbara, is good recent example. Robinson sent an email
to his students juxtaposing what he termed "parallel images of Nazis and
Israelis" — Jews victimized during the Holocaust and Palestinians
attacked by Israel during the recent Gaza invasion. The response was
swift. The ADL and the Simon Wiesenthal Center condemned Robinson's
email. The ADL's Abraham Foxman announced that "You can criticize
Israel; you can criticize the war in Gaza. But to compare what the
Israelis are doing in defense of their citizens to what the Nazis did to
the Jews is clearly anti-Semitism".

In other words, the ADL believes in free speech—up to the point where it
think it conflicts with its version of Jewish interests. And after that
point, it is perfectly willing to do whatever it takes to shut up people
like Robinson. (Hmm, sounds familiar; see also here.)

The second reason Jewish organizations want enhanced repression powers:
immigration. The organized Jewish community has long been the single
most effective pressure group in favor of massive non-White immigration
into the United States. The ADL and other Jewish organizations are
currently presenting a united front on the issue of so-called
"comprehensive immigration reform", which would legalize millions of
illegal immigrants and set off another massive round of chain migration
to the US from Mexico and other countries. Organizations with high
levels of Jewish funding such as the ACLU and have been in the forefront
of expanding the "rights" of legal and illegal immigrants and refugees
and making the enforcement of immigration laws difficult. The Southern
Poverty Law Center (or $PLC in VDARE.com terminology) seems to have
completey shifted its focus from, well, southern poverty and the Ku Klux
Klan to attacking critics of immigration, no matter how law-abiding and
respectable.

From my Darwinian perspective, this is quite clearly a program of
conquest and displacement of European peoples by non-European peoples.
Since I am of European descent this strikes me as rather obviously
against my interests.

Most of the time since the catastrophic 1965 Immigration Act
passed—producing, once again, consequences quite different from what the
enactors claimed to envision—a bipartisan consensus kept what was
happening out of public debate.

But the Bush/Kennedy Amnesty/Immigration Acceleration attempts of 2006
and 2007 were unexpectedly defeated—only and exclusively because of
grassroots opposition. This political instability can be expected to
increase as the consequences of immigration become increasingly
undeniable. Accordingly, elite intolerance of dissent on the immigration
issue is perceptibly rising.

It's important to realize the scope of this effort to prohibit speech
that conflicts with the multicultural utopia envisioned by the left.
Exhibit A in the Big Picture of Hate Crime legislation is the recent
Durban Review Conference in Geneva — the follow-up to the World
Conference Against Racism of 2001.

The Outcome Document put out as the consensus sentiment of the
conference is a real eye-opener. It is a compendium of the dogmas of the
intellectual left which, if implemented, would result in massive
transfers of wealth from Western countries to undeveloped countries and
massive population transfers from undeveloped countries to Western
countries. And it calls for international legal power to punish speech
and actions that deviate from these policy goals.

For example, Paragraph 13 provides this masterpiece of Orwellian
doublethink: it "reaffirms … that all dissemination of ideas based on
racial superiority or hatred, incitement to racial discrimination as
well as all acts of violence or incitement to such acts shall be
declared offence punishable by law … and that these prohibitions are
consistent with freedom of opinion and expression." [My emphasis]

On the face of it, this seems to state that a race scientist like J.
Phillipe Rushton or Richard Lynn could be sent to prison for claiming on
the basis of scientific data that there are distinct races and that they
differ in intelligence and other traits linked with economic
development. But even so, the OD claims, the proposed laws will not
infringe these scholars' right to say whatever they want.

Perhaps the idea is that while Rushton and Lynn are in prison, they will
be free to discuss these ideas with their cellmates.

Without mentioning Western societies in particular, the OD clearly
articulates a moral and legal duty of Western societies to be overrun
anyone who wants to live in them.

There should have been a mass protest by people of European descent at
Geneva. But, ironically, the only protestors were Jewish activists.

However, these activists were concerned not because the program of the
OD, if implemented, would sound the death knell of every traditionally
European country in the world. Rather, they were protesting because the
OD reiterated its support for the Durban Declaration and Programme of
Action of 2001. This contained paragraphs referring to Israel as a
foreign occupying power over the Palestinians and calling for an
independent Palestinian state. Each of these proposals is anathema to
serious Zionists.

There was a massive paradox in Jews protesting the Geneva
Conference—given that Jewish organizations in Western societies have
been strong supporters of the policies advocated by the rest of the
document. Essentially, Jewish organizations are seeking to carve out for
Israel an ethnonationalist exception to the leftist zeitgeist that
dominates the OD. Israel has a discriminatory immigration policy based
on tracing descent to a Jewish mother, and it has a variety of policies
that discriminate against Arabs within Israel (e.g., Palestinians who
marry Israeli Arabs cannot become Israeli citizens). It has created an
apartheid society in the West Bank occupied territories, and it has
treated African migrants and refugees very poorly, doing its utmost to
discourage them from coming and making their lives as miserable as
possible after they arrive. All of these are in clear violation of the OD.

In short, Israel is behaving as if it is a nation with a certain ethnic
core and is arranging its affairs in order to keep its ethnic identity.
But in the US, the organized Jewish community has been the most
effective force in favor of massive non-White immigration.

Arguably, the federal hate crime law now before the Senate does not
explicitly penalize speech in the absence of a crime. But not only do
these social engineering measures have a very strong tendency to mutate
under the influence of the courts and the bureaucrats—it is also quite
clear that some of the supporters of "hate laws" are eager to expand
them to speech even in the absence of any other crime. Thus the "Megan
Meier Cyberbullying Prevention Act" was just introduced in the House. It
would make it a federal felony to cause "substantial emotional distress"
through "Severe, Repeated, and Hostile" speech.

Such a law could easily be applied to politicians or judges, and is
obviously unconstitutional under current interpretations. But one can
easily imagine that Obama appointees would have no problem altering this
in the interests of the "empathy" for "people's hopes and struggles"
that he has said he will require of them. Of course, Obama's criterion
of "empathy" as a legal standard is about as far removed as one can
imagine from the rule of law based on founding documents (especially the
First Amendment) and legal tradition. But he did say, after all, that he
was the candidate of "change".

The ADL is on the verge of getting its Federal Hate Crimes bill signed
into law. It is only a matter of time before it makes an all out assault
on the First Amendment.

And now the Obama Administration, and the entire intellectual left, will
be wholly on board with the Jewish organizations' long-held agenda.

Kevin MacDonald [email him] is professor of psychology at California
State University–Long Beach and a frequent contributor to The Occidental
Observer. For his website, click here. ==

The bill went on to become law:
http://en.wikipedia.org/wiki/Matthew_Shepard_and_James_Byrd,_Jr._Hate_Crimes_Prevention_Act

(3) We still need race hate laws - Colin Rubenstein (of Australia/Israel
& Jewish Affairs Council)

We still need race hate laws

Sep 3 2012

Colin Rubenstein

The Australian - September 03, 2012

http://www.aijac.org.au/news/article/we-still-need-race-hate-laws
http://www.theaustralian.com.au/national-affairs/opinion/we-still-need-race-hate-laws/story-e6frgd0x-1226463451982

OUR society is founded on civility, tolerance and fair opportunity for
all people, regardless of religion, racial or ethnic origins, to achieve
their maximum potential.

This is why it is a fundamental concern that Australia's laws against
public expressions of racial hatred are being targeted for dilution or
even repeal.

The federal Racial Hatred Act came into effect in 1996. This law is
still an important response to damaging racist behaviour that frequently
targets groups within the Australian community, such as Aborigines,
Asians, Jews, Africans, various Muslim communities and others.

The key provisions on racial hatred were introduced into the 1975 Racial
Discrimination Act. Its section 18C now prohibits an action that is
"reasonably likely, in all the circumstances, to offend, insult,
humiliate or intimidate another person or group of people" and which is
done because of their race, colour, or national or ethnic origin, as
being a breach of that person or group's civil rights.

These federal provisions were introduced on a bipartisan basis, and have
been upheld by the Federal Court. Corresponding state legislation has
also largely had bipartisan support.

Further, the International Covenant on Civil and Political Rights, to
which Australia is a party, obliges all its parties to adopt laws
prohibiting "advocacy of national, racial or religious hatred that
constitutes discrimination, hostility or violence" (Article 20). In
addition, most developed countries have adopted such laws, although
remaining strong democracies with robust debate.

Nonetheless, some commentators believe that all racial hatred laws
should be eliminated altogether, usually on purist "free speech"
grounds. Free speech is fundamentally important to the functioning of a
modern democracy, but this right has never been absolute. There have
always been legitimate limits placed on it -- from defamation, or
incitement, false advertising, perjury and lying to authorities, to
shouting "fire" in a crowded theatre.

Racial vilification can strongly compromise other important human rights
-- including the right to live one's life free from harassment and
intimidation. Laws calibrated to keep to an absolute minimum necessary
restrictions on free expression, are justified to protect these other
rights.
In a recent lecture, Opposition Leader Tony Abbott raised the
possibility of repealing some or all of Section 18C "in its present
form" under a future Coalition government.

Opposition legal affairs spokesman George Brandis has since confirmed
his party's stance by stressing that the intention is only to repeal
section 18C in "its current form", thus further implying that some form
of racial hatred legislation will be retained. He has not as yet
indicated in what way the law might be reviewed and changed.

Senator Brandis has argued that section 18C confuses the censorship of
opinions with the utterance of intimidating words, but it is important
that he clarifies his understanding of the distinction between the two
concepts.

To protect free expression of opinion, the legislation already provides
exemptions for academic, artistic and scientific work, done reasonably
and in good faith. It also exempts any statement, publication or
discussion that is a fair or accurate report or a fair comment
expressing a genuine belief, or done for any other genuine purpose in
the public interest.

The current apprehension about the law appears to stem, in large part,
from the fear that a chilling effect on public discussion might be
generated by Justice Bromberg's decision in the 2011 Federal Court case
Eatock v Bolt. His Honour ruled the published opinions of Herald Sun
columnist Andrew Bolt on Aboriginal approaches to self-identification to
be in breach of section 18C.

However, the value of 18C's provisions in combatting genuine hate speech
has been demonstrated and uncontroversial. In a series of cases, in
which the applicant was Jeremy Jones, the Australia/Israel & Jewish
Affairs Council's director of community and international affairs, who
acted for the Executive Council of Australian Jewry, a series of
principles were established.

Newspapers were given guidelines on responsibility when publishing
material from external sources which were recognised as racist. The
internet was found to be covered by Australian law. Holocaust denial was
recognised as anti-semitism. Most importantly, victims of harassment had
legal recourse.

As a matter of common sense, a judicious review of the racial hatred
provisions in the Racial Discrimination Act might be timely. It could
yield opportunities to improve on the current law and to examine the
relevance of some academic analyses which have critiqued the current
provisions for ambiguities and inconsistencies.

But any attack on the basis of such laws is a serious error of political
and moral judgment.

Regardless of the Bolt case, it would be an overreaction to remove all
protections from racial hate speech acts in Australia's multicultural
society.

The fate of this law should not be confused with the separate debate
about media regulation. The two issues have little to do with each
other, except in the minds of those whose preoccupation is a campaign
for absolute "free speech" at all costs.

The Opposition Leader and the legal affairs spokesman have not yet
clarified what they see as the best means for protecting the human
rights of victims of racial hate speech. Their constructive specific
suggestions are keenly awaited.

Our common objectives are, as always, to improve our legal standards so
that they will more effectively address the genuine harm caused by
public expressions that vilify, incite, intimidate or harass on the
basis of racial or ethnic origins.

Dr Colin Rubenstein AM is executive director of the Australia Israel
Jewish Affairs Council.

(4) James Spigelman warns of Hate Speech bill: being Offended is Subjective

http://www.abc.net.au/unleashed/4420410.html

11 DECEMBER 2012

No right not to be offended

James Spigelman

When rights conflict, drawing the line too far in favour of one degrades
the other. James Spigelman discusses this balance in light of the 2012
Human Rights and Anti-Discrimination Bill.

I wish to discuss the boundary between hate speech, a significant factor
in social inclusion, and free speech, perhaps the most fundamental human
right underpinning participation in public life.

This issue has been controversial in Australia in recent years, in the
context of the racial vilification provision in section 18C of the
Racial Discrimination Act, 1975, which is proposed to be re-enacted as
section 51 of the new omnibus legislation, the Human Rights and
Anti-Discrimination Bill, 2012.

There may now have elapsed sufficient time for us to debate the issue
dispassionately, and not on the basis of whether or not you like Andrew
Bolt.

The focus of that debate was not on the existence of a racial
vilification provision, but on the breadth of the conduct to which
section 18C extends, namely, conduct "reasonably likely… to offend,
insult, humiliate or intimidate another person".

The key criticism was directed to the fact that the section made speech
which merely "offends" unlawful. A similar, but less powerful objection
can be made to the reference to "insult".

These matters have long concerned me, but my thoughts have crystallised
after reading The Harm in Hate-Speech, a book written by Jeremy Waldron,
one of the foremost jurisprudential scholars of our time, with joint
appointments to Oxford University and New York University Law School.

From the perspective of society, Waldron emphasises inclusiveness as a
public good, providing an assurance and sense of security to all members
of the society that they can live their lives without facing hostility,
violence, discrimination or exclusion.

From the other perspective, of those who are meant to benefit from this
assurance, the fundamental human right that is affirmed is the right to
dignity. Hate speech undermines the sense of assurance and denies the
dignity of individuals.

The section of Professor Waldron's book which is of particular
significance for our debate, is the chapter he devotes to establishing
the proposition that protection of dignity does NOT require protection
from being offended. As he puts it:

Laws restricting hate speech should aim to protect people's dignity
against assault. Dignity in that sense may need protection against
attack, particularly against group-directed attacks …

However, I do not believe that it should be the aim of these laws to
prevent people from being offended. Protecting people's feelings against
offence is not an appropriate objective for the law…

I agree with Professor Waldron. His detailed analysis supports the
proposition that declaring conduct, relevantly speech, to be unlawful,
because it causes offence, goes too far. The freedom to offend is an
integral component of freedom of speech. There is no right not to be
offended.

I am not aware of any international human rights instrument, or national
anti-discrimination statute in another liberal democracy, that extends
to conduct which is merely offensive.

Section 19(2)(b) of the proposed Human Rights and Anti-Discrimination
Bill 2012, introduces "offending" into the definition of discrimination
for all purposes, not just for racial vilification. The new s19 defines,
for the first time, discrimination by unfavourable treatment to include
"conduct that offends, insults or intimidates" another person.
Significantly, unlike existing s18C (or its replacement by the new s51),
there is no element of objectivity, as presently found in the words
"reasonably likely to offend". It appears to me the new bill contains a
subjective test of being offended.

There are 18 separate "protected attributes" set out in section 17 of
the draft bill, seven of which apply only in the employment context.
These are wide ranging and, in a number of respects, novel.

The inclusion of "religion" as a "protected attribute" in the workplace,
appears to me, in effect, to make blasphemy unlawful at work, but not
elsewhere. The controversial Danish cartoons could be published, but not
taken to work. Similar anomalies could arise with other workplace
protected attributes, eg. "political opinion", "social origin",
"nationality".

Further, each of the four existing Commonwealth anti-discrimination acts
proscribe publication of an advertisement or notice which indicates an
intention to engage in discriminatory conduct. Section 53 of the new
omnibus bill goes further into freedom of speech territory, by extending
this proscription beyond advertisements to any publication.

The new bill proposes a significant redrawing of the line between
permissible and unlawful speech. A freedom that is contingent on
proving, after the event, that it was exercised reasonably or on some
other exculpatory basis, is a much reduced freedom. Further, as is well
known, the chilling effect of the mere possibility of legal processes
will prevent speech that could have satisfied an exception.

When rights conflict, drawing the line too far in favour of one,
degrades the other right. Words such as "offend" and "insult", impinge
on freedom of speech in a way that words such as "humiliate",
"denigrate," "intimidate", "incite hostility" or "hatred" or "contempt",
do not. To go beyond language of the latter character, in my opinion,
goes too far.

We should take care not to put ourselves in a position where others
could reasonably assert that we are in breach of our international
treaty obligations to protect freedom of speech.

The Honourable James Spigelman AC QC is Chairman of the Australian
Broadcasting Corporation. View his full profile here.

(5) Jim Spigelman warns on Hate speech bill: where to draw the line

http://afr.com/p/opinion/hate_speech_where_to_draw_the_line_YF81vyluxs0JZhYAGZiIII

Hate speech: where to draw the line

Australian Financial Review,
December 11, 2012

JAMES SPIGELMAN

One of the most memorable of all speeches is Lincoln’s Gettysburg
Address. It is one of the most eloquent statements in support of the
theme which the Australian Human Rights Commission chose for Human
Rights Day: “Inclusion and the right to participate in public life”. I
wish to discuss the boundary between hate speech, a significant factor
in social inclusion, and free speech, perhaps the most fundamental human
right underpinning participation in public life.

Human rights discourse, which has always been comfortable with
privileging a right over an interest, has never successfully dealt with
situations in which rights conflict. This is a context bedevilled by a
conflict of metaphors: from “rights as trumps” to “balancing”. As
Benjamin Cardozo warned us: “Metaphors in law are to be narrowly
watched, for starting as devices to liberate thought, they end often by
enslaving it“Balancing” is often a fraught process, particularly in the
usual context where the conflicting values are simply incommensurable.
As one United States Supreme Court Justice put it, the process is often
like asking “whether a particular line is longer than a particular rock
is heavy”.

In the present context, the issue requires determination of how much
weight is to be given to the right to freedom of speech. For many,
albeit not all, that right is usually entitled to determinative weight
when it conflicts with other rights, relevantly, those protected by
anti-discrimination statutes.

This issue has been controversial in Australia in recent years, in the
context of the racial vilification provision in section 18 C of the
Racial Discrimination Act, 1975, which is proposed to be re-enacted as
section 51 of the new omnibus legislation, the Human Rights and
Anti-Discrimination Bill, 2012.

The bill was recently released for comment, an invitation I will take up
in this address.

There may now have elapsed sufficient time for us to debate the issue
dispassionately, and not on the basis of whether or not you like Andrew
Bolt. The focus of that debate was not on the existence of a racial
vilification provision, but on the breadth of the conduct to which
section 18 C extends, namely, conduct “reasonably likely .?.?. to
offend, insult, humiliate or intimidate another person”. The key
criticism was directed to the fact that the section made speech which
merely “offends” unlawful. A similar, but less powerful objection, can
be made to the reference to “insult”. The critique did not, generally,
extend to the words “humiliate or intimidate”.

These matters have long concerned me, but my thoughts have crystallised
after reading a book, published earlier this year, which contains an
insightful treatment of the principles involved in regulating hate
speech. It was written by Jeremy Waldron, one of the foremost
jurisprudential scholars of our time.

His recent book, The Harm in Hate Speech, is primarily is primarily
directed to an American audience.

The section of Waldron’s book which is of particular significance for
our debate is the chapter he devotes to establishing the proposition
that protection of dignity does NOT require protection from being
offended. As he puts it:

“Laws restricting hate speech should aim to protect people’s dignity
against assault .?.?. However, I do not believe it should be the aim of
these laws to prevent people from being offended. Protecting people’s
feelings against offence is not an appropriate objective for the law. To
protect people from offence or from being offended is to protect them
from a certain sort of effect on their feelings. And that is different
from protecting their dignity and the assurance of their decent
treatment in society.”

I agree with Waldron. His detailed analysis supports the proposition
that declaring conduct, relevantly speech, to be unlawful, because it
causes offence, goes too far. The freedom to offend is an integral
component of freedom of speech. There is no right not to be offended.

I am not aware of any international human rights instrument, or national
anti-discrimination statute in another liberal democracy, that extends
to conduct which is merely offensive. I have not conducted a detailed
review of the international position in this respect. However, so far as
I have been able to determine, we would be pretty much on our own in
declaring conduct which does no more than offend, to be unlawful. In a
context where human rights protection draws on a global jurisprudence,
this should give us pause when we re-enact s 18C and before we extend
such protection to other contexts.

Section 19(2)(b) of the proposed Human Rights and Anti-Discrimination
Bill 2012, introduces “offending” into the definition of discrimination
for all purposes, not just for racial vilification. None of the other
pre-existing Commonwealth Acts – covering sex, disability and age
discrimination –extends the concept of discrimination to conduct which
only offends.

The new bill proposes a significant redrawing of the line between
permissible and unlawful speech. This is so, notwithstanding the ability
to establish that relevant conduct falls within a statutory exception. A
freedom that is contingent on proving, after the event, that it was
exercised reasonably or on some other exculpatory basis, is a much
reduced freedom. Further, as is well known, the chilling effect of the
mere possibility of legal processes will prevent speech that could have
satisfied an exception.

None of Australia’s international treaty obligations require us to
protect any person or group from being offended. We are, however,
obliged to protect freedom of speech. We should take care not to put
ourselves in a position where others could reasonably assert that we are
in breach of our international treaty obligations to protect freedom of
speech.

James Spigelman, AC, QC, is a former chief justice of NSW. ==

Human Rights Day Oration - delivered by the Honourable James Spigelman
AC QC
Monday 10 December 2012
http://humanrights.gov.au/about/media/news/2012/132_12.html

(6) ABC chairman Jim Spigelman: "the right to offend is inherent in the
right to free speech"

http://www.abc.net.au/pm/content/2012/s3651498.htm

ABC chairman fears for freedom of speech

Tim Palmer reported this story on Monday, December 10, 2012 18:34:00

Listen to MP3 of this story ( minutes)

ALTERNATE WMA VERSION | MP3 DOWNLOAD

MARK COLVIN: A former chief justice of New South Wales says the Federal
Government's proposed Human Rights and Anti Discrimination Bill is a
threat to free speech.

James Spigelman is now the ABC chairman, but it was his legal knowledge
he brought to bear at the Human Rights Commission Awards ceremony today.
He says the bill tries to preserve the idea that no one should be
offended by hate speech.

In particular he told Tim Palmer, that he was worried that causing
offence could be enough to break the law when it comes to talking about
not just race but a whole raft of protected areas, including age, gender
and even political opinion.

JAMES SPIGELMAN: I don't believe that there's any other country with
which we would compare ourselves that makes offending conduct unlawful.

TIM PALMER: As things stand, or as the bill would extend things?

JAMES SPIGELMAN: Well in both cases. At the moment the racial
vilification provision of the existing Racial Discrimination Act goes
beyond insulting or intimidating, you know, words of that force, to
extend to conduct that only offends people.

We've long had legislation, separate legislation for discrimination on
the basis of age, disability or gender. That legislation never extended
as far as the Racial Discrimination Act did to encompass offending
conduct. And the proposal in the bill that's been set out for discussion
would do that.

If all it does is offend someone then I think it goes too far in terms
of cutting down freedom of speech.

TIM PALMER: All of these things though depend on subjectivity don't
they? I mean you draw a distinction here somehow between humiliate and
offend. So how is that distinction drawn?

JAMES SPIGELMAN: I think humiliate is an objective standard. When it
comes to conflicting rights, whether there is a right to human dignity
on one hand, which hate speech legislation is directed to protect, or
freedom of speech on other words, well it's always difficult to draw the
balance. In my view, words like humiliate incite hatred, contempt. They
are reasonable restrictions on freedom of speech. There are many such
restrictions, freedom of speech is not an absolute.

But the question is whether it goes too far when it goes to merely
offending conduct. My view is that it does. I think that the right to
offend is inherent in the right to free speech. That doesn't mean that
it's always tasteful or measured, but one can't sit back and judge all
exercisers of free speech and make sure they are sufficient for polite
conversation - free speech goes beyond polite conversation.

TIM PALMER: I think you refer to dignity as a public good, presumably on
that basis, hurt feelings aren't a public good. Is that what you're saying?

JAMES SPIGELMAN: I mean it is a good, a public good, but the question is
whether the law should make conduct that affects feelings unlawful, in
circumstances where the relevant conduct is speech.

This is something on which reasonable minds can differ as to where to
draw the line. My view is that drawing the line beyond the language of
the character that I've mentioned - hatred, contempt, humiliation; such
language - goes too far.

TIM PALMER: You raise one particular example, because it's not going to
be this omnibus legislation a person might be able to publish, for
example, the Danish cartoons offending the prophet, but not not bring
those into the workplace.

JAMES SPIGELMAN: When you have omnibus legislation of this character it
can bring up anomalies of that kind. The workplace-prohibited
characteristics include not only religion but also political opinion,
industrial history, medical history. They don't apply outside the
workplace.

TIM PALMER: Social origin would be protected, what does that mean?

JAMES SPIGELMAN: I don't know, I don't know what that means. In the old
days it would have been were you descended from convicts? In Australia I
think that's now no longer something you discriminate against, it's
something you triumph and trumpet.

TIM PALMER: Possibly nowadays that would make unlawful to call someone a
bogan at work for example, possibly?

JAMES SPIGELMAN: I'm not sure if that's a social origin, it seems to be
just a sort of term of abuse, but of its own character. But look, I
don't know is the answer what that - It no doubt has a history in
workplace legislation but I don't know what that history is.

TIM PALMER: Can I ask, your overwhelming impression then from this, if
you say no other liberal democracy would go close to us in having a law
that enshrines the preservation of your good feelings, that you
shouldn't be offended on a whole range of grounds; has Australia become
a very thin-skinned society do you think? Or is government developing
for us the ability to be thin-skinned?

JAMES SPIGELMAN: The racial vilifications provisions have a very strong
history. It goes back to the Holocaust in World War II, it was one of
the earliest of the international human rights treaties; it is reflected
in strong legislation throughout the world. I don't know anywhere that
uses language like offend as part of the declaration of unlawfulness,
even in that context.

MARK COLVIN: The ABC chairman and former New South Wales chief justice
James Spigelman talking to Tim Palmer.

(7) Big Brother Anti-Discrimination Legislation

http://www.billmuehlenberg.com/2012/12/11/big-brother-anti-discrimination-legislation/

Bill Muehlenberg

December 11, 2012

You know things are getting bad when even hard-core leftists and civil
libertarians join with conservatives in opposing draconian and
anti-freedom of speech law proposals. I refer to the draft Human Rights
and Anti-Discrimination Bill 2012 which has recently been released for
comment.

It seeks to update, expand and standardise the current laws and make
things even more difficult for those concerned about religious freedom,
freedom of conscience, and freedom of speech. Of real concern are the
addition of two new categories, sexual orientation and gender identity,
and the stripping away of various religious exemptions.

As with many such laws already around the country in various states, the
result of all this is to in effect declare that a person is guilty until
proven innocent. The one complained against will have to prove he is not
being discriminatory, and should be exempt from the law. A lengthy
discussion by Jenny Stokes of what is involved in this new proposed
legislation can be found in the first link below.

All churches and religious groups should be quite concerned about all
this. Commentator Pat Byrne also sounds alarm bells here: “If Roxon’s
bill becomes law, freedom of religious practice – and of churches and
faith-based agencies to employ people of their own religious beliefs –
will be granted only by ‘exceptions’ and ‘exemptions’ in the law.

“In selecting candidates for the ministry, churches are told that they
can freely choose, but only because they will be allowed to
‘discriminate’ on grounds of sex, age, relationship status, sexual
orientation, etc. However, when it comes to faith-based schools and
other church agencies, the new law will only make an ‘exception’ for
discrimination that consists of conduct that ‘conforms to the doctrines,
tenets or beliefs of that religion; or is necessary to avoid injury to
the religious sensitivities of adherents of that religion’.

“The mainstream churches may gain ‘exceptions’ from the law, because
their ‘doctrines, tenets or beliefs’ have been refined and codified over
centuries or millennia (S33(2)). However, numerous independent Christian
churches will find it hard to define their beliefs so clearly. They may
well find themselves subject to the full force of this law.”

He continues, “Roxon’s bill chisels away at Australians’ long-cherished
right to religious freedom. Curiously, it seems that even political
parties may be subject to the new anti-discrimination law. It will be
interesting to see what happens should a card-carrying Liberal Party
member take a case to the AHRC claiming discrimination because he/she
was refused employment on Nicola Roxon’s staff because of his/her
political ideas.”

Yes quite so. And an important speech was just delivered by James
Spigelman, Chairman of the ABC and former Chief Justice of the Supreme
Court of NSW. He also is greatly concerned about this bill, and how
freedoms will be snatched away from us. Excerpts from his speech are
well worth sharing here: ...

What Chuck Colson once said about the US is certainly applicable here:
“In George Orwell’s classic novel 1984, the government Thought Police
constantly spies on citizens to make sure they are not thinking
rebellious thoughts. Thought crimes are severely punished by Big
Brother. 1984 was intended as a warning against totalitarian governments
that enslave and control their citizens. Never have we needed this
warning more urgently than now, because America’s Thought Police are
knocking on your door.”

Or as Orwell said elsewhere, “The further a society drifts from the
truth, the more it will hate those that speak it.” Indeed, that seems to
be the main reason why such laws are being proposed in the first place.

(8) Federal government proposes MORE anti-discrimination laws

http://www.saltshakers.org.au/take-action/campaigns/1029-federal-government-proposes-more-discrimination-laws

Tuesday, 20 November 2012 14:57

Submissions due by 21 December 2012 - ACT NOW!

[...] The federal government has announced that they are planning
wide-ranging changes to federal anti-discrimination laws.
[See website with proposed exposure draft Bill - click here]

The most significant change is that two NEW attributes will be added to
the law - prohibiting discrimination on the basis of sexual orientation
and gender identity.

The government also plans to make it ILLEGAL for religious bodies that
provide Commonwealth-funded Aged Care to discriminate on the basis of
gender identity and sexual orientation. (More on this below) ...

(9) New anti-discrimination bill threatens religious freedom, enshrines
“gender identity” and “sexual orientation”

http://newsweekly.com.au/article.php?id=5417

New anti-discrimination bill threatens religious freedom

by Patrick J. Byrne

News Weekly, December 8, 2012

A new federal anti-discrimination bill will place the onus of proof on
those accused of discrimination, restrict religious freedoms and may
require political parties to employ people from opposing political camps.

The draft Human Rights and Anti-Discrimination Bill 2012 has just been
released for comment. Submissions to an inquiry on the bill by the
Senate legal and constitutional affairs committee are due by December
21, with the committee due to deliver its report by February 18, 2013.

First, Attorney-General Nicola Roxon has presented to parliament
legislation that means that no longer will the person making a complaint
about “discrimination” be required to prove that such discrimination
occurred; rather, it will be up to the person accused to prove that it
didn’t happen.

James Allan is the Garrick professor of law at Queensland University.
Writing in The Australian (November 22, 2012), he said that, in contrast
to the government’s new anti-discrimination law, defamation law cases
require that newspapers must assemble witnesses and hard evidence to
prove that their allegations about a person are factually accurate.

This is what the Americans call “a chilling effect” on what newspapers
and commentators can say about people. The threat of a newspaper or
commentator being bankrupted in court forces them to self-censor what
they say. This balances free speech with the right of a person to have
his or her reputation protected.

But in reversing the onus of proof in anti-discrimination law, a person
alleging discrimination only has to make a prima facie allegation, and
then the burden of proof will fall on the person accused. Unless the
defendant can prove the allegation is false, businesses accused of
discrimination will be forced to pay up. Many will simply pull out the
cheque-book and settle with an accuser in order to avoid costly court
proceedings.

Allan says: imagine if all accused people had to prove their innocence.
Then, “those making allegations of impropriety against Craig Thomson or
Peter Slipper would have to make only a prima facie case (no big deal)
and then both those men would have the burden of proving the allegations
false”.

Second, Roxon’s bill plans to turn “gender identity” and “sexual
orientation” into “protected attributes”, along with age, religion, sex,
relationships status and pregnancy among others.

Employers who are alleged to have discriminated in employment on any of
these defined grounds will have to prove to the Australian Human Rights
Commission (AHRC) that they did not discriminate against a person on
those grounds.

If Roxon’s bill becomes law, freedom of religious practice – and of
churches and faith-based agencies to employ people of their own
religious beliefs – will be granted only by “exceptions” and
“exemptions” in the law.

In selecting candidates for the ministry, churches are told that they
can freely choose, but only because they will be allowed to
“discriminate” on grounds of sex, age, relationship status, sexual
orientation, etc.

However, when it comes to faith-based schools and other church agencies,
the new law will only make an “exception” for discrimination that
consists of conduct that “conforms to the doctrines, tenets or beliefs
of that religion; or is necessary to avoid injury to the religious
sensitivities of adherents of that religion”.

The mainstream churches may gain “exceptions” from the law, because
their “doctrines, tenets or beliefs” have been refined and codified over
centuries or millennia (S33(2)).

However, numerous independent Christian churches will find it hard to
define their beliefs so clearly. They may well find themselves subject
to the full force of this law.

Will an exception be granted to a church where some members of the
congregation do not object to employing a person in a cohabiting
relationship, or a “gay” relationship, while the minister and most of
the congregation do find that this does cause “injury” to their
“religious sensitivities”?

It will be up to the Australian Human Rights Commission to decide.

Of deep concern is that the Roxon bill says that the “exceptions”
provisions are to be reviewed in three years. Hence, don’t expect that
exceptions for churches, schools and church agencies will be permanent.

As this magazine warned (“Push for new laws to attack churches,
schools”, News Weekly, May 26, 2012), the inquiry that led to this bill
received over 30 submissions calling for no exceptions or exemptions for
churches or church agencies, or for imposing draconian restrictions on
religious freedom.

Roxon’s bill chisels away at Australians’ long-cherished right to
religious freedom.

Curiously, it seems that even political parties may be subject to the
new anti-discrimination law. It will be interesting to see what happens
should a card-carrying Liberal Party member take a case to the AHRC
claiming discrimination because he/she was refused employment on Nicola
Roxon’s staff because of his/her political ideas.

If the attorney-general were to lose such a case, all will not be lost.
She can appeal to the Federal Court or the Federal Magistrates Court.

--