Changes to the Racial Discrimination Act proposed by federal Attorney-General George Brandis would ”open the door to Holocaust deniers”, allowing them to publish their claims with impunity, legal advice to NSW Premier Barry O’Farrell says.
The opinion by leading barrister Arthur Moses, SC, says the changes would ”radically narrow the protection that Australian citizens will receive from racial vilification” and ”undermine the very purpose” of the act.
”A new legislative right to engage in racial vilification in the course of public discussion would, for instance, open the door to Holocaust deniers to publish their opinions on websites and on social media in the course of ‘public discussion’,” he writes in the opinion handed to Mr O’Farrell on Friday.
But, in his opinion, Mr Moses cites the 2003 prosecution of Fredrick Toben over publication of his view that there were ”serious doubts” the Holocaust took place and some Jewish people exaggerated the number of Jews massacred during World War II for improper reasons, including financial gain.
The full bench of the Federal Court found Dr Toben’s comments were not made in ”good faith” – an exception to prosecution in the existing act.
The proposed new law protects comments made ”in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.
”This exception is wide enough to allow people to publish anti-Semitic material if they demonstrate that they were participating in public discussion,” Mr Moses says.
He says Dr Toben’s comments ”would be allowed under the new law, which has no ‘good faith’ exception”.