From: Peter Wertheim
Sent: Wednesday, 2 April 2014 2:08 PM
To: Alan Der­show­itz
Subject: Part IIA of the Racial Dis­crim­in­a­tion Act

Dear Alan
I write as one of your many admirers in Australia. I espe­cially enjoyed reading Chutzpah and The Case For Israel.
I see from today’s Aus­trali­an that you have weighed into the debate currently under way in Australia about our existing Federal law against racial vili­fic­a­tion. (We have State racial vili­fic­a­tion laws too, but these are not in issue in the current debate).
The Federal laws that are in dispute are the pro­vi­sions of Part IIA of the Racial Dis­crim­in­a­tion Act, com­pris­ing sections 18B, 18C, 18D, 18E and 18F. These sections were the product of wide­spread public con­sulta­tion and debate in the 1990’s in response to the recom­mend­a­tions of three major inquiries including The National Inquiry into Racist Violence and the Royal Com­mis­sion into Abori­gin­al Deaths in Custody. The laws were co-authored by the late Ron Castan QC, a giant of the Aus­trali­an Jewish community and the Aus­trali­an legal fra­tern­ity and a champion of Indi­gen­ous Aus­trali­ans and the cause of human rights.
I don’t want to burden you here with the technical details of how Part IIA has operated in practice. If you wish to read up on the law and the relevant cases you can begin here. The vast majority of incidents of racial vili­fic­a­tion never progress to a formal complaint. Those that do, go through a com­puls­ory process of con­cili­ation in the Aus­trali­an Human Rights Com­mis­sion before the com­plain­ant can go to court. Only a small number of formal com­plaints have done so. Our organ­isa­tion has been the plaintiff in several of those cases (eg Jones v Toben, Jones v Scully) and we have usually been suc­cess­ful. We have suc­cess­fully resolved many more cases at con­cili­ation or by direct nego­ti­ation with pub­lish­ers.
We have not wasted our time chasing every antisemite and neo-Nazi nobody down a rabbit-hole. But the big operators like ISP’s and social media platform providers are worth going after. We were suc­cess­ful in our complaint against Facebook to the Aus­trali­an Human Rights Com­mis­sion in 2012. After several rounds of nego­ti­ations with their lawyers during the con­cili­ation process, they removed hundreds of crudely racist images and comments that appeared on 51 Facebook pages. We would never have been able to get them removed without Part IIA. Facebook ignored the avalanche of com­plaints from Facebook users for weeks, and only acted once our organ­isa­tion made a formal complaint to the Aus­trali­an Human Rights Com­mis­sion under Part IIA.
In the US, similar efforts against Facebook failed. Our laws have clearly worked better for the Aus­trali­an Jewish community against Facebook than the US First Amendment has worked for the American Jewish community.
Part IIA of the Racial Dis­crim­in­a­tion Act has operated without con­tro­versy in Australia since 1995. Hundreds of victims of racial vili­fic­a­tion have been able to avail them­selves of a legal and peaceful avenue for seeking redress, instead of being forced to suffer in silence or dignify their tor­ment­ors with a “debate”. The reason for the present con­tro­versy is purely political and has nothing to do with principle. In 2011, one of the government’s champions in the media was suc­cess­fully sued under Part IIA because he was found to have racially vilified Abori­gin­al people. That is the beginning and the end of it. The country is about evenly divided between people who think he deserved what he got (his newspaper was ordered to publish an extract of the court’s opinion on the page next to his column) and those who think he was hard done by.
The US is greatly admired in Australia but there are aspects of the American legal and civic culture that very few Aus­trali­ans would wish to see emulated in our country. Here, the right to sue for defam­a­tion to defend one’s repu­ta­tion against untrue pub­lic­a­tions (even if there is no malice) is regarded as sac­rosanct. And the US Second Amendment (the right to bear arms) is viewed by many in Australia as a dangerous ana­chron­ism. All of the peak Jewish national bodies in Australia without exception – the ECAJ, AIJAC, ZFA and ADC – and their respect­ive con­stitu­ent and affiliate organ­isa­tions, pro­fes­sion­als and volun­teers who combat antisemitism every day, have united in oppos­i­tion to the government’s plans to emas­cu­late Part IIA. More than two-thirds of the Aus­trali­an pop­u­la­tion, according to Australia’s largest study on racism, support retention of the existing law.
Per­son­ally, I agree that free speech, as a rule, is an effective counter to racism. But the law is there to deal with excep­tions, not the rule. I doubt that the newspaper that published your piece today would have the courage to publish this reply, because it rebuts their editorial position. I would love to be proven wrong on that point. I am taking the liberty of for­ward­ing them and many others a copy of this email.
Warm regards,
Peter

Peter Wertheim AM | Executive Director
phone: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au