Law against racial vilification steeped in Australian history

Those who would dismiss Australia's laws prohibiting racial vilification as a mere concession to latter-day political correctness and 'the culture of complaint' should remember that such laws were called for by a distinguished Supreme Court judge as far back as 1949.

In the immediate aftermath of WWII and the Holocaust, Jewish refugees stranded in camps in Europe were barred by the British authorities from migrating to Palestine to start new lives. The cruelty of this policy was condemned by many people all over the world, including most Jews, and was resisted, often violently, by several Jewish groups in Palestine.

In May 1947, a Jewish communal event was held in Sydney to raise money for Youth Aliyah. Then, as now, Youth Aliyah raised money to pay for the passage of homeless and needy Jewish children from all parts of the diaspora to the Jewish homeland where they could be cared for.

On 31 May 1947 the newspaper Smiths Weekly published a front page story with the headline "JEWS RAISE HUGE SUMS TO FIGHT BRITISH – HEAVY LEVIES ON JEWS IN AUSTRALIA". Posters that appeared outside almost every newsagency throughout Australia carried the headline, "AUSTRALIAN JEWS FINANCING TERRORISTS IN PALESTINE - KILLING BRITISH SOLDIERS". The story singled out Youth Aliyah, to which Australian Jews had donated money, as a terrorist front organisation.

More than 90% of the people in Australia at that time were of Anglo-Celtic heritage, and many of them were staunchly pro-British. Smiths Weekly was an extreme right wing, xenophobic, jingoistic Anglophile newspaper which railed against Jewish refugees from Europe who were then arriving in Australia – "reffos" in the parlance of the day - and against Jewish boat people arriving in Palestine from Europe. The latter were referred to sneeringly as "illegals".

Australia in the 1940's had no laws against racial vilification. So Dr Fanny Reading, the acting President of Youth Aliyah in Australia, sued the publisher of Smiths Weekly in the Supreme Court of NSW for libel. The case was heard before Justice Leslie Herron, who later became Chief Justice, and a four person jury.

Dr Reading had a distinguished reputation and much was at stake. Indeed, she was a woman of remarkable humanity and courage. She had founded the National Council of Jewish Women in NSW in 1923 and put enormous energy into charitable activities for Jewish refugees, immigrants and the poor. She helped found the Wolper Jewish Hospital and the NSW Jewish Board of Deputies.

But her charity work went far beyond Jewish horizons. As a doctor she treated the battered, the abused and the indigent of Sydney without fee and sometimes gave them refuge in her own home. She was also involved with national disaster relief, the war effort, the Lord Mayor's Fund, the Benevolent Society of NSW and its hospitals, as well as aged care in nursing homes and through Meals on Wheels. She was awarded the King George V Jubilee Medal (1935), the King George VI Coronation Medal (1937) and an MBE (1961).

Fanny Reading's case against Smith's Weekly resonated with many of the kinds of issues that provoke debate in contemporary Australia – refugee children, terrorism, conflicts in the Middle East.

During the trial, Fanny Reading was questioned for the better part of 3 days by the most ferocious cross-examiner at the Sydney bar at that time, Jack Shand KC. Fanny was 64 years old and the ordeal took a terrible toll on her nerves and health. With the agony of the Holocaust still fresh in the public memory, Shand put it to her that "Jews are their own worst enemies".

Yet Fanny Reading was steadfast throughout. She said that no levy was imposed on Jews and no compulsion or duress were applied, nor could they be. "Those who contributed did so out of sympathy and love for Jewish children, many of them orphans, homeless and unwell".

Several witnesses supported Fanny, including Gerald de Vahl Davis, another giant of the Australian Jewish community. One of his many communal positions was Chair of the Group Libel Committee of the Executive Council of Australian Jewry.

Justice Herron ultimately directed the jury to enter a verdict for the Defendant. He ruled that the Smiths Weekly story could not reasonably be read as referring to Dr Reading as distinct from any other members of Youth Aliyah. As there was no law against group libel he had no alternative but to find against her. But the judge also had this to say:

I give this decision with some regret. The plaintiff, on the evidence, appears to be a woman of distinction in the Jewish community and a woman who has contributed much in time and money towards the social and patriotic causes of Australia.

The article, as the evidence stands, casts unwarranted aspersions on the Youth Aliyah movement. I believe that the article must have wounded her and filled her with a sense of injustice, not only against the Jews, but also against those who supported the movement.

However, it is cold comfort for her to know that as the law stands no such attack on a class, or sect or congregation of people, however unwarranted, can be subject of a libel action in this court, and this court cannot assist her to condemn the paper.

It is for Parliament to reshape the law if any redress is thought to be necessary in such a case as this, but hard cases make bad law, and I have to give to the law the effect as I see it, although it brings about a regrettable decision, so far as the plaintiff is concerned.

It would take another 40 years before any parliament in Australia would take Justice Herron's hint. Australia's first laws against racial vilification were passed in NSW in 1989. Six years later, such laws were enacted for the whole country by the Australian parliament and became part of the Racial Discrimination Act. These are the laws the present government now seeks to repeal.