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The Anti-Defamation Commission has urged Michael Kirby to withdraw contentious comments after the former High Court chief justice linked Jewish people who co-operated with the Nazi regime to gay Australians who want to boycott the same-sex marriage postal vote.
Mr Kirby, a prominent same-sex marriage advocate whose preference is for a free vote in parliament, initially declared he would have no part in the postal ballot but told The Weekend Australian he had always intended on voting Yes if it survived various legal challenges.
He drew fierce criticism from the Anti-Defamation Commission, a Jewish community group, after referring to the Holocaust while expressing his empathy for LGBTI Australians, such as his long-term partner, Johan van Vloten, who will not participate in the postal vote.
Mr Kirby said it made them feel like “second-class citizens”.
“During the run-up to the Second World War some Jewish people, though the situation was much more desperate and fraught, took part with the Nazis in the regulation of the Jewish community. Looking back on it, we can now see that that is something when you are being denigrated and treated unfairly and as a second-class citizen, you shouldn’t necessarily go along with,” Mr Kirby told ABC radio on Thursday.
“This postal vote isn’t in that order but it’s the same principle, so I can sort of understand my partner who gave away his perfectly good Netherlands citizenship, under which he could marry, for Australian citizenship, and feels he’s being humiliated and treated in a hostile way by members of parliament who shouldn’t be acting in this way.”
Commission chairman Dvir Abramovich seized on the remarks, declaring there was no comparison between contemporary political circumstances and the “incomprehensible conditions” endured by Jews under Adolf Hitler’s regime.
Dr Abramovich said he recognised how “irresistible” the Holocaust reference had become in generating headlines, but it could not be justified, “no matter how strong one’s objection may be to the postal vote”.
“The Turnbull government is certainly not the Third Reich and no one is being herded onto trains and sent to the death camps,” he said. “Invoking such inappropriate and offensive analogies to advance any agenda undermines the historical truth and the meaning of the Holocaust, and only serves to trivialise the extermination of six million Jews and millions of others, which, as we know, included gay people.”
Mr Kirby said he had meant no offence but stood by his comments, explaining his partner lived through World War II in The Netherlands as a small boy and strongly believed “no minority should ever co-operate with those who seek to oppress its members”.
“In our most respectful view, the Holocaust should not be consigned to books of history; nor restricted to the lessons it teaches for anti-Semitism,’’ Mr Kirby said.
“It should be available so all of us can learn from the wrongs that are done to minorities by reason of indelible features of their nature. This includes race and ethnicity. But, in our view, it also includes sexual orientation. Many of the leaders of LGBTIQ liberation have been Jewish.’’
Mr Kirby said the foundation of the gay marriage survey was unscientific. and its “hairbrained” predecessor, a mandatory plebiscite, would have been better.
WHAT THEY SAID
Michael Kirby on ABC radio, August 10:
I do understand the view of those who say ‘I am not going to participate in something that is my own humiliation. I am not going to participate is something that reinforces that I’m a second class citizen and damages especially young people in the community by making them see very clearly that they are second class citizens subjected to an impediment to the matter being determined in parliament in the normal way in a case of this kind on a conscience vote’. I do understand that.
During the run up to the Second World War some Jewish people, though the situation was much more desperate and fraught, took part with the Nazis in the regulation of the Jewish community. Looking back on it, we can now see that that is something when you are being denigrated and treated unfairly and as a second class citizen, you shouldn’t necessarily go along with.
This postal vote isn’t in that order but it’s the same principle, so I can sort of understand my partner who gave away his perfectly good Netherlands citizenship under which he could marry, for Australian citizenship, and feels he’s being humiliated and treated in a hostile way by members of parliament who shouldn’t be acting in this way.
Dvir Abramovich, chairman of the Anti-Defamation Commission, August 11:
I recognise how irresistible the Holocaust reference has become in today’s society in generating headlines. However, no matter how strong one’s objection may be to the postal vote on same-sex marriage, there is no comparison between contemporary political circumstances and the incomprehensible conditions that the Jewish community faced under Hitler’s evil regime.
The Turnbull government is certainly not the Third Reich and no one is being herded onto trains and sent to the death camps.
Invoking such inappropriate and offensive analogies to advance any agenda undermines the historical truth and the meaning of the Holocaust, and only serves to trivialize the extermination of six million Jews and millions of others, which, as we know, included gay people. The Holocaust was a singular event in human history and we urge all public leaders in this debate to refrain from using any Holocaust comparisons that are deeply hurtful to the survivors and which coarsen civil discourse. We hope that Justice Kirby reconsiders his words and retracts his remarks.”
Michael Kirby’s letter to the Anti-Defamation Commission, via The Australian, August 11:
The last thing I would wish to do would be to cause offence to members of the Jewish community, in Australia or anywhere else.
My nephew and niece, being born of a Jewish mother, are Jewish by ethnicity and upbringing. In our family, we are proud of our connection with the Jewish community and with our family’s Jewish members. On 27 August 2017, I will be speaking at the dinner for Hadassah Australia in support of that good cause of the Australian Jewish community. Every year, I am invited to, and do, address the Australian Jewish students Association to emphasise the importance of remembering and respecting the lessons of the Holocaust. And the need to combat anti-Semitism. And learn contemporary lessons about it. On 25 August 2017, I will be interviewed by the Australian Jewish News on the subjects of my forthcoming talk.
My partner Johan and I regularly visit the Joodsemuseum and Anne Frank Huis in Amsterdam. We have studied the terrible sufferings of the Jewish people in the Netherlands during the war. My partner lived through that time in the Netherlands and although then a small boy he was profoundly affected by the experience. We have talked about it often. I am sure you know that there are books written on the topic of cooperation with the occupying and local powers which was, and is a source of great pain in the Netherlands. It affected my partner’s strong belief (which I can entirely understand) that no minority should ever cooperate with those who seek to oppress its members. In our most respectful view, the Holocaust should not be consigned to books of history; nor restricted to the lessons it teaches for anti-Semitism. It should be available so all of us can learn from the wrongs that are done to minorities by reason of indelible features of their nature. This includes race and ethnicity. But, in our view, it also includes sexual orientation. Many of the leaders of LGBTIQ liberation have been Jewish.
I do assure you that no offence was meant and I was simply trying, in ex tempore unscripted answers to questions, to explain why my partner’s experience, which I have come to share over 48 years, brings about a strong feeling of non-cooperation with the imposition on minorities (in this case LGBTIQ people in Australia) of completely unprecedented, discriminatory, unfavourable and objectionable governmental actions that single them out for disadvantage and hostility. It would be my hope that the Anti-Defamation Commission would see similarities or analogies and insist that no such discriminatory laws or procedures should be adopted by our parliament and our government. I invite you to inform me of any statements by the Anti Defamation Commission making this point and rendering relevant to contemporary Australian society one of the main lessons to be learned from the oppression of the Jewish people.
In the end, I did not feel that LGBTIQ people in Australia should boycott the participation in the discriminatory postal sampling proposed by the government. But nothing will convince my partner Johan to participate. In this, he is a product of the history of his childhood. No one is more respectful of the Jewish people and their sufferings than Johan and me. If my language was considered infelicitous, I regret it. But my motives were truthful and based upon a profound appreciation of the terrible wrongs of the Holocaust. We honour the Jewish people and especially those of the Netherlands.
I hope that you will reconsider your decision to write a critical opinion. We should not allow others to divide those who resist serious discrimination.
Labor is considering a secret plan to extend the reach of litigation based on section 18C of the Racial Discrimination Act to include people claiming they have been offended or insulted because of their sexual orientation, disabilities or age.
A video, obtained by The Australian, shows Labor legal affairs spokesman Mark Dreyfus last week explaining the proposal, which would lead to the Australian Human Rights Commission and the courts facing a new wave of complaints.
Because Bill Shorten has rejected changes to 18C, there is a risk that Labor’s plan to consolidate all federal anti-discrimination laws will lead to litigation by the disabled and the LGBTI community that would be determined using the same procedures that apply under section 18C.
The Australian can reveal that the amount of compensation paid as a result of race discrimination complaints to the Human Rights Commission has soared, with companies and governments handing over almost $1 million since 2010 to avoid going to court.
Mr Dreyfus has confirmed that if Labor is elected to government he will be considering imposing a general standard for speech that infringes anti-discrimination law.
Under Labor’s proposal, advocates of same-sex marriage would be empowered, for example, to take legal action under 18C-style laws if they felt offended or insulted by those who publicly defended the traditional definition of marriage. Those at risk would include priests, rabbis, imams and other religious leaders who publicly oppose same-sex marriage.
Labor’s proposal also opens the prospect that debate over the cost of the National Disability Insurance Scheme could be truncated because of the risk of litigation by those who might feel offended or insulted.
Mr Dreyfus outlined Labor’s thinking during a panel discussion on Wednesday last week with Liberal backbencher Tim Wilson, hosted by the Jewish Community Council of Victoria.
In the video of the event, Mr Dreyfus said a Labor government hoped to consolidate all federal anti-discrimination legislation and would consider whether there should be a general standard for the type of speech that would attract liability under that law. At the moment, separate federal laws make it unlawful to discriminate against people because of their race, age, sex and sexual orientation, disability and indigeneity.
When Mr Dreyfus was asked by an audience member if section 18C should be extended to cover gender and disability, he said Mr Wilson had reminded him of the “failed project which I hope to return to of consolidating the five anti-discrimination statutes when we are next in government”.
“One of the things we’ll be looking at is this very point of whether or not we should set a standard about speech generally,” Mr Dreyfus said.
“I want to have standards set in a community which respect the dignity of every Australian. I think it’s very important and something to be fought for.”
When asked yesterday about his remarks, Mr Dreyfus said Labor would never support changes to section 18C of the Racial Discrimination Act.
“The consolidation of discrimination law was a policy of the Gillard Labor government,” he said. “My discussion of this issue last week was clearly hypothetical, and is not relevant to the current proposed changes to section 18C which will do nothing but weaken protections against racial hate speech in this country.”
Labor’s proposal has come to light at a time when the Australian Human Rights Commission is dealing with a surge in complaints by those claiming to have been offended and insulted under section 18C. Section 18C makes it unlawful to do anything that causes people to feel offended, insulted, humiliated or intimidated because of their race, colour or national or ethnic background.
Under a plan unveiled by Malcolm Turnbull and Attorney-General George Brandis this would be changed to eliminate what they have described as an unnecessary restriction on freedom of speech.
The proposed changes would impose liability only on those who intimidated or harassed others because of their race, colour or national or ethnic background. The government’s plan would also abandon the test for liability and require all disputes to be decided based on the standards of reasonable members of the community.
This would overturn the current arrangement in which judges are required to adopt the perspective of reasonable representatives of those who complain.