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Uncomfortable truths

By Dilan Thampapillai - posted Wednesday, 29 April 2015


Scott McIntyre tweeted on the Saturday. He was fired on the Sunday. SBS then released a statement which read in part "SBS supports our Anzacs". There was no acknowledgement in the statement that there might be some truth in McIntyre's twitter comments. It has since emerged that a text from Malcolm Turnbull, the Minister for Communications, alerted SBS management to McIntyre's tweets. Turnbull himself tweeted that McIntyre's comments were "despicable".

What did McIntyre say that was so bad? McIntyre first tweeted that Anzac Day was, "the cultification of an imperialist invasion of a foreign nation that Australia had no quarrel with is against all ideals of modern society." He then tweeted, "Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered." He tweeted, "Remembering the summary execution, widespread rape and theft committed by these 'brave' Anzacs in Egypt, Palestine and Japan." McIntyre then made remarks on the bombing of Hiroshima and Nagasaki during WWII.

In his tweets McIntyre suggested that the sanitised version of the Anzacs that is remembered today bears little resemblance to the realities of WWI. In that sense, what McIntyre wrote is not completely inaccurate.

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Many of the Anzac soldiers stationed in Egypt during WWI regarded the locals as racially inferior. This attitude influenced their behaviour towards the Egyptian population and there were numerous instances of mistreatments of the locals. These included acts of assault, rape, murder and theft. Suzanne Brugger's book Australians and Egypt, contains accounts of the harassment and violence that some of the Anzac troops meted out to the Egyptians. While the criminality was not systematic the British authorities were ineffective in policing it, thereby stoking the resentment of the local population.

During WWII there were incidents where Australian soldiers killed Japanese soldiers instead of letting them surrender or killed them shortly after capture. General Paul Cullen, an Australian officer serving in Kokoda, described these killings with regret, stating that they were "not uncommon".

McIntyre's sacking was discussed on Monday night's Q and A program on the ABC. It says something about the way in which the Anzacs have been deified in recent times that none of the politicians could bring themselves to admit that some Anzacs had committed war crimes. Both Arthur Sinodinos and Tanya Plibersek looked decidedly uncomfortable in discussing the issue. Plibersek even avoided dealing directly with the issue when Tony Jones asked her whether McIntyre had overstepped the mark in his comments on Anzac war crimes.

Monash historian, Carolyn Holbrook, avoided the issue altogether, focusing instead on McIntyre's characterisation of those who commemorate Anzac Day and his unfortunate use of the word 'terrorism' in describing Hiroshima and Nagasaki.

Holbrook struggled to accept that the Gallipoli attack was an invasion. One would hope that a historian would have the sense to understand that when foreign troops attack a sovereign nation, the situation can properly be construed as an invasion.

Holbrook could not even bring herself to directly acknowledge that the bombing of Hiroshima and Nagasaki was a war crime. While the bombings have little direct relevance to the Anzacs, it is uncontroversial that the direct targeting of civilians is a war crime.

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McIntyre may have had a point in remarking on the 'imperialist' attack on Turkey. The defeat of the Ottoman Empire did result in some of its former possessions becoming a part of the British Empire, and thereby subject to the strict racial hierarchy within the Empire. At the time of WWI both Billy Hughes and Alfred Deakin stated that Australia's reasons for going to war were to keep Australia, "white and free". Notably, in modern narratives the 'white' part of that ethos seems to have been quietly dropped.

The British Empire that the Anzacs served is not favourably remembered by many of its former subjects. It expropriated significant wealth from its colonial subjects, delayed the development of useful national institutions and left a legacy of division and mistrust. Though they should be evaluated in the context of the times in which they lived, the Anzacs did fight in service of that Empire.

It can hardly be surprising then that some modern Australians might regard Anzac Day with a degree of coolness. This might be particularly true of those Australians from non-Anglo-Celtic backgrounds.

From a personal perspective, it seems as if it is only in the last fifteen years that Anzac Day has become quite commercialized and nationalistic. That doesn't excuse McIntyre's crude characterisation of the people who now commemorate the day. Even if you don't particularly respect something, you can respect that your fellow citizens place value in it and that some of them devote the day to mourning the loss of their ancestors who died during the war. In this sense, the deliberate timing of McIntyre's tweets was a touch unkind.

All nations need some type of founding myth or idea to keep themselves together. In this context, it seems as if the Anzacs have assumed greater importance in recent times. This might be a reaction to a more competitive and globalized economy and a diversified community. It may also be a function of the greater distance in time that now exists between modern Australia and the Australians who actually endured the hardship of war.

We are a free society and the role of the Anzacs, or anybody else for that matter, should not be accepted without question. This is why the response of the conservative right is again disappointing. They appear unashamedly selective on free speech issues. The irony of Andrew Bolt failing to defend free speech has not gone unnoticed in the media storm.

Yet, more importantly, both Turnbull's role in McIntyre's sacking and the treatment of the latter's contractual rights as an employee are deeply concerning. Why should the Minister for Communications involve himself in a matter like this? If Turnbull had not got involved it is likely that while there may still have been a twitter-storm, McIntyre would not have been sacked so quickly.

While SBS states that McIntyre was sacked for refusing to remove the offensive tweets, the management of SBS seems to have acted reflexively in sacking him. One would think that though his comments probably breached the SBS Social Media Protocol, and presumably then his employment contract, there is a sensible argument to be made that the breach was not so substantial as to warrant termination of the contract. At the very least, the ordinary principles of contract law stipulate that the party who alleges a breach of contract must give the other side sometime to respond or remedy. Given the speed of the sacking this does not appear to have happened.

The SBS Social Media Protocol provides:

While SBS employees have the right to make public comment and to enter into public debate in their personal capacity, it is important to ensure that SBS is not brought into disrepute. Individuals should consider how their posts will be perceived by the community, taking into account the standards which apply to their work.

It is worth noting that the Protocol does not say that employees should only make comments that pertain to their employment. The Protocol does say that comments should not bring SBS into disrepute. McIntyre's tweets certainly enraged many people. However, some of what he said is actually true. That begs the question as to whether the rule on disrepute applies if an employee says something that is true, albeit a bit exaggerated, but very unpopular.

The Protocol also provides:

Disciplinary action may be taken whenever you behave in an inappropriate matter that amounts to a breach of your employment obligations. This includes situations where your actions could damage the reputation and integrity of SBS … [and] your actions in your private life affect your capacity to perform your duties in an effective manner.

The inclusion of the term 'Disciplinary action' suggests that there should at least be a reasonable process to determine whether a breach has occurred.

The Freedoms Commissioner, Tim Wilson, has weighed in by describing McIntyre's tweets as repugnant and supporting his sacking. Wilson notes that McIntyre was offered the option of acknowledging that his conduct was offensive, but that he was fired for refusing that offer and other alternatives.

However, the speed at which the sacking took place demonstrates that very little time was given for McIntyre to get legal advice or to make a considered case defending his comments and for SBS to get its own legal advice and to sensibly consider steps short of dismissal.

Tim Wilson has defended his position saying that he sees it as a contractual issue. Notably, Wilson, who lacks a legal background, appears not to appreciate that McIntyre's employment contract with SBS is unlikely to be governed solely by the Social Media Protocol. There would be other instruments, quite apart from labour laws and the common law of contract, which would affect the validity of McIntyre's dismissal.

Bizarrely, Wilson has tried to draw a parallel between Barry Spurr and Scott McIntyre. The differences could not be more profound. Spurr's remarks were insulting and deeply racist, though not intended for public consumption. McIntyre's remarks, though unpalatable to some and rather sneeringly delivered, contain more than a grain of truth. Spurr was also subject to a proper investigative and disciplinary process within the University of Sydney before his resignation. McIntyre obviously has not received the same consideration.

A grown up democracy should be able to handle the truth, even if the timing is unwelcome and the wording is harsh. It should also expect better from its public bodies.

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About the Author

Dilan Thampapillai is a lecturer with the College of Law at the Australian National University. These are his personal views.

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