Vilification Outs Are There For A Reason

The Deakin Law Review has been directed not to publish Associate Professor Andrew Fraser’s article Rethinking the White Australia Policy. The direction, from Deakin’s vice-chancellor, is based on a view that publication would contravene the Federal Racial Discrimination Act.

To decide, as a simple proposition, that publication would be racial vilification is unremarkable. The Racial Discrimination Act sets a relatively low threshold: it is enough that the conduct — in this case publishing arguments in support of a racially determined basis for intelligence, temperament, criminality and athleticism — is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person because of their race.

But racial vilification laws are not so simple. It is recognised that such laws are a constraint on free speech, and so they create exemptions that allow “vilification” in some circumstances. There are two primary requirements: the conduct must have been done reasonably, and must have been done in good faith.

In the case of the Deakin Law Review, it would be hard make an assessment of these considerations without some information apart from the content of the article. In what circumstances was the decision made to publish? What was the editors’ intention in deciding to publish? What is the role of scholarly journals? There is a lot of recent law on the meaning of “reasonably and in good faith”, and it seems premature to say that Deakin Law Review’s decision to publish Fraser’s article fails those requirements.

But merely to publish reasonably and in good faith is not enough. The exemptions are available only for conduct in particular areas of activity. Courts and tribunals have already had to consider whether, for example, a seminar presentation about Islam was for a religious purpose.

Publication of Fraser’s article would raise directly, for the first time, consideration of the exemption for an “academic purpose”. While cases have decided whether it applies, its meaning has never been explored and it has never been raised in a context that is so apparently “academic”.

How far might an exemption for an “academic purpose” go? It appears that the courts, in deference to free speech, will interpret the exemptions broadly, without actually negating the primary purpose of anti-vilification laws. A full exploration of “academic purpose” is likely to raise the problematic issue of “academic freedom”.

Although academic freedom is a contested concept, it has an essential feature. Bertrand Russell famously invoked it in support of his right to hold minority views after he was excluded from the City College of New York.

Arguably, academic freedom has as much to do with preserving the status and autonomy of the academic community in civil society as it does with pure notions of free speech. Academic freedom is not merely a manifestation of free speech. It recognises the role that academic inquiry plays in asking and answering questions, and reaching a collective understanding of ourselves and our world. It is characterised by an honest engagement with competing data and opinions.

In this sense academic freedom is a privilege. When academics are allowed to engage in what would — but for academic freedom — be racial vilification, they are given special licence, and it will be up to them to justify their views by reference to academic standards. For the Deakin Law Review, it seems a pretty good start to be able to say that the views would have been published in a university-based peer-reviewed journal of 12 years’ standing. In reply there would need to be some attack on the academic integrity of, if not the journal, then the processes that led the journal to decide to publish.

Such an attack might be possible, but, again, it seems premature to say that the process of the Deakin Law Review’s decision to publish Fraser’s article fell short of the usual academic requirements.

It is hard to see how questions of reasonableness, good faith and academic purpose can be resolved without an inquiry and evidence. These issues are matters of judgment that a court would make after a hearing.

A cautious approach to any potential legal liability will avoid the risk by not engaging in the conduct. But in the vexed territory of free speech, academic freedom and vilification, there can be no debate, and no formal judgment, unless there is publication. Why else does the legislation provide the “academic” exemption?

Simon Rice, OAM, teaches law at Macquarie University.

David Rood, The Age (Melbourne), Sept. 21

A controversial Sydney law academic who argues white Australians face a “life-or-death struggle to preserve their homeland” has accused Deakin University of limiting freedom of academic expression.

The university this week directed its law journal not to publish an article by Andrew Fraser supporting the White Australia Policy, reversing an earlier decision to publish the paper.

Dr Fraser, an associate professor at Macquarie University, said limits on intellectual freedom were narrowing by the day, especially when it came to discussion of race and immigration.

“The managerial regime that we live in now has got so much invested in the dogma of racial equality that they’re prepared to prevent any challenge to it,” the Canadian-born academic said.

In July, Dr Fraser was banned from teaching at Macquarie University after he made comments claiming that blacks were less intelligent and non-white immigration was turning Australia into a Third World colony. His views sparked debate over academic freedom of expression.

In the article Rethinking the White Australia Policy for the Deakin Law Review, Dr Fraser argues that scientific advances have demonstrated mental, physical and behavioural differences between races.

“The newly emergent racial realism confirms the wisdom of the nation’s founders,” he argues. “They understood that the comparative ethnic homogeneity of the Anglo-Australian people was a source of strength and unity.”

Dr Fraser writes that a multiracial society forces white Australians to bear “painful social, economic and political costs”.

“Within two or three decades, it is not unreasonable to expect that Australia will have a heavily Asian managerial-professional, ruling class that will not hesitate to promote the interests of co-ethnics at the expense of white Australians,” he says.

The world experience of expanding “black populations” he says, is a “sure-fire recipe” for increasing crime, violence and social problems.

Executive director of the Australian Multicultural Foundation Hass Dellal, said there were moral limits to freedom of speech, and Mr Fraser’s views disrupted social harmony.

“Most Australians finds these views abhorrent. For a country like Australia that has been so welcoming and has benefited from its diversity, socially politically and economically, most Australians don’t accept these views,” he said.

Deakin University directed the journal not to publish the article after legal advice that it would breach the Racial Discrimination Act and possibly state racial vilification laws.

But Dr Fraser said Deakin was using the laws to cut down, rather than defend academic freedom. Dr Fraser has also written to the National Tertiary Education Union seeking its support for his claim against Deakin for breach of contract.