Professor Fraser responds to The Hon von Doussa

 

8 April 2006

The Hon John von Doussa, QC

Human Rights and Equal Opportunity Commission

Level 8 Piccadilly Tower , 133 Castlereagh St

GPO Box 5218

Sydney, NSW 2001

 

Dear Mr von Doussa,

 

Reference: 2016307FC. Hareer v Fraser

Thank you for your letter of 31 March 2006 in which you declare that my letter published in the Parramatta Sun on 6 July 2005 was unlawful under s18C of the Racial Discrimination Act.  You also declare that the s18D exemptions do not apply in this case. 

You asked in closing that letter whether I am prepared to consider Mr Hareer’s resolution proposal to resolve the matter.  In reply, I can confirm that I am prepared to consider a somewhat modified version of his proposal to post an advertisement in the Parramatta Sun.

Towards a Resolution of this Dispute

You will appreciate, however, that I do not approve of the racial vilification laws on which Newhouse Lawyers have relied nor do I approve of Newhouse Lawyers representation of Mr Hareer.  Mr Hareer’s legal representatives appear to be engaged in a campaign to promote their own narrow ethnic interests in a manner unrelated to the welfare of Sudanese refugees or the public interest generally.  For reasons that I will set out below, I also reject the conclusions that the Commission has reached and the reasons supplied therefore. 

Even so, I have no wish at all to cause distress to any member of the Sudanese Darfurian Union.  I would hope to be able to discuss serious issues of public policy without unnecessarily injuring the feelings of those who may be affected by the outcome of such democratic debate and decisions.

Accordingly, I have a proposal for concluding this matter amicably without the need to continue the fight in every available forum.  To continue the dispute will attract ever-wider media interest and publicity which may be distressing to Mr Hareer and harmful to the interests of his Sudanese constituents here in western Sydney and, possibly, to my own.

I note that the terms of the advertisement proposed by Newhouse Lawyers might be suitable for a private defamation action.  But such an advertisement is not at all suited to the circumstances of this case in which a whole range of public interests are at stake.  My letter was intended to spark public debate on the content of the immigration stream.  This is of vital concern in many countries not just highly ethnocentric societies such as Japan and Israel but in Europe , the USA and Australia .

Clearly, a significant level of African immigration into Australia raises questions about potential risks to national unity.  My letter raised that issue as well as the question of the extent to which public policy may be distorted and deformed by the disconnect between elites and ordinary Australians and by fashionable ideologies.

Both sides in this dispute should work towards a solution that recognises both the need to avoid distress or embarrassment to the Sudanese already settled in Australia and the need for continuing public debate on immigration law and policy.

Accordingly, I propose that I should post an advertisement in the Parramatta Sun in my name and in the following terms:

            In its issue of 6 July 2006 , the Parramatta Sun published a letter from me (together with editorial material based on an interview with me.)  The letter   expressed or implied views on a number of matters and made it clear that I did not regard Darfur refugee camps as suitable sources of migrants to Australia .  I also suggested that the settlement of Sudanese refugees here would erode further Australia ’s national identity.  The letter also made reference to problems of crime associated with expanding black populations elsewhere.

In writing that letter, I had no intention of causing distress to any Sudanese and regret that I may have done so.  A Sudanese-Australian backed by Newhouse Lawyers and the NSW Jewish Board of Deputies made a complaint to the Human Rights and Equal Opportunity Commission whose President, Mr John von Doussa has decided that my letter breached s 18C of the Racial Discrimination Act without adequate justification.  I disagree with his conclusion and his reasons; I regard the legislation as pernicious and damaging to free democratic discussion of public policy. 

 

I am, however, more than happy to withdraw any unfavourable imputation of violence or criminality which might be thought to apply to the complainant or any other particular Sudanese person or persons  or which implies that I know enough about Sudanese settled in Australia to impute acts of criminality or violence to them, and I do so.

 

Reformulating the Views Expressed in My Original Letter

 

Had I had the space in which to set out my views more adequately in my original letter to the Parramatta Sun, I would have made the following points which would be unarguably within the legitimate scope of lawful comment under the Racial Discrimination Act:

 

  1. The arrival of refugees from the Darfur region of Sudan draws attention to the wisdom of Australia taking unskilled migrants from African sources, in particular, and to the need to re-examine Australia ’s migration and refugee policies in relation to Third World societies generally.
  2. I believe, like most people in most countries, that national unity demands a common vision of the kind of community citizens of that society want.  This implies a relatively high degree of ethno-cultural homogeneity.  It also means that there must be frank and open discussion of the extent to which any given group of potential migrants will contribute towards or threaten the maintenance of a cohesive social order.
  3. The natural tendency of people to prefer interaction with others like themselves fosters the creation of ethnic ghettoes and the practice of ethnic nepotism.  Both are inimical to a sense of community with members of the host society.  This requires consideration of the costs versus the benefits that can be expected from the migration into Australia of people from racial, ethnic, or religious groups likely to resist assimilation into the host society.
  4. The evidence that can be applied to judgements on such issues is necessarily of the common sense sort that applies to everyday matters such as investment decisions, not the standard that would apply, for example, to a decision to send a test pilot up in a new space shuttle.
  5. If there is evidence of disproportionate criminality, low average IQ (as compared to other racial groups), lack of parental investment in children and low male employment among particular groups, then migration by members of that group should be discouraged, apart, perhaps, from a few educated or highly-skilled English-speakers.  Even then, there might be legitimate concerns about a brain drain adversely affecting Third World countries with scarce supplies of human capital.
  6. Efforts by managerial, bureaucratic and professional elites to suppress discussion of racial differences in cognitive ability, behaviour and temperament are likely to encounter resistance and resentment among ordinary Australians (including both the descendants of early settlers and well-integrated recent immigrants and their offspring.)  The refusal to respect what the average Australian regards as “the evidence of his lying eyes” inevitably leads to suspicion of hidden agendas.  It will be those ordinary Australians who bear the costs of mistaken immigration policies that benefit other, more well-connected interest groups.
  7. Refugees are undoubtedly a special category of immigrants but the money currently spent on resettling the limited numbers of displaced persons from the Third World accepted into Australia would be better spent on encouraging the resettlement of vastly larger numbers of needy people in countries closer geographically, racially and culturally to their native lands.

Andrew Fraser

 

 

I hope such a reformulation of my views takes the perceived sting out of my previous public comments for Mr Hareer.  The posting of an advertisement in the terms set out above should result in the full and complete resolution of this dispute.

It may be a useful step for the Commission to arrange a voluntary or compulsory conciliation conference between Mr Hareer and myself.  Such a meeting might make it possible for both of us to better understand each other’s position and sensitivities and reach an amicable settlement of this dispute..

The Commission’s Decision

I do hope that we can achieve a speedy and amicable resolution of this dispute along the lines I have just suggested.  It cannot be in anyone’s interest to continue making a mountain out of a molehill.  Let us remember that this matter concerns nothing more than a letter to the editor of an obscure suburban newspaper.  But for the decision of the editor to run a sensational front page story highlighting that letter, it, in all likelihood, would have been ignored by most of the paper’s readers.

Let me emphasise, however, that I believe Mr Hareer and his legal representatives would make a serious error of judgement should they refuse to settle the matter through the conciliation process mandated by the Commission’s President (a process in which I am prepared to participate in a good faith effort to reach a settlement acceptable to both sides) and seek instead to pursue me into the Federal Court. 

With all due respect, I believe the Commission’s decision to declare my letter unlawful is fatally flawed.  In the result, the decision is unfair and unreasonable.  In reaching that result, the Commission failed to take into account relevant considerations in applying s18C to the facts of this case; moreover the Commission’s misinterpretation and misapplication of the language of s18D is very likely wrong in law. 

In summary, the Commission’s decision represents a serious threat to the norms of civil liberty in a free and democratic society.  I believe a court would be bound to give far more weight to that consideration than the Commission has seen fit to do.  For the following reasons, I do not fear the prospect of litigating this matter before the courts, even though I do not believe it is in the interest of any of the parties to do so.

I provided the Commission, inter alia, with evidence that reasonable persons of black African ancestry (eg journalist Leighton Levy and Harvard sociologist Orlando Patterson) have themselves recognized that, in their experience, people of black African ancestry exhibit high levels of criminality, violence and a wide range of other social pathologies.  Mr Hareer was ill-advised to take public umbrage simply because a lone white academic made a similar observation in a suburban newspaper.  

Neither the Commission nor Mr Hareer have acknowledged the repeated efforts I made in public meetings and on talk-back radio to meet the concerns expressed directly to me by dozens of black Africans.  By contrast, in the eyes of the wider public, Mr Hareer’s complaint to the Commission is bound to appear both contrived and vindictive. 

Mr Hareer has enlisted the power of the state as well as the assistance of another well-financed and self-interested ethnic lobby to crush an isolated individual raising common and legitimate questions about a controversial public policy.  Through this course of action Mr Hareer can achieve, at best, nothing more than a Pyrrhic victory.  He may silence me and even bring about my financial ruin but in so doing he may well damage the reputation of his people and their prospects for peaceful integration into the life of a freedom-loving Australian society.

In any case, Mr Hareer and his legal advisers should not take for granted the prospect of an easy victory in the courts.  The Commission’s decision, it seems to me, is open to challenge on several grounds,

“Reasonably and in Good Faith”

The Commission appears to have applied the “thin skull” principle in applying s18C to Mr Hareer’s complaint.  That may be in accord with the precedents establishing a low threshold to establish a complaint under s18C.  Nevertheless, the subsequent ruling that my letter was not written “reasonably and in good faith” within the meaning of s18D is dangerously unsound.

“Reasonably” in that context must refer to a statement or belief that a reasonable person could hold.  In claiming that the language of my letter was not reasonable or exhibited bad faith, you resort to selective quotation, ignoring the “constraints and proportionality” built into my reference to the crime, violence and other social problems associated with expanding black populations.  The Commission’s decision omitted the significant qualification contained in the phrase “[e]xperience practically everywhere in the world tells us.”  Clearly, my language acknowledged the possibility of exceptions to the generalisation being made and also left it open to sceptical readers to cite empirical evidence to refute the generalisation itself. 

To date, no one has come forward with evidence to refute my observation.  Indeed, it would be very difficult to do so.  The validity of my generalisation about blacks and crime rates has long been acknowledged in the sociological literature and in official crime statistics in the USA and the UK .  As long ago as 1985, the Australian social scientist John J Ray noted “that according to US census and other official data, the percentage of blacks in a community was the best single predictor of total crime rate in that community.”[1]  That observation has been confirmed in more recent studies as well.[2] 

It is untenable to deny that my letter was written “reasonably and in good faith” when it did nothing more than report well-known conclusions about blacks and crime rates readily available in the academic literature here and overseas.

It is no less untenable to declare that the letter was not written “reasonably and in good faith” because it refers to “the steady erosion of their [i.e. Anglo-Australian’s] national identity.”  In recent years, this has been a recurrent theme in a great many books published in Australia , including some written by advocates of a multi-racial society.

Miriam Dixson, for example, writes about the fear and the sense of loss that ordinary Anglo-Celtic Australians feel as they see the character of their nation changing before their eyes.  She remarks that “old-identity Australians have been forbidden to mourn” the loss of their country.  Australian intellectual culture and officialdom have little sympathy, she observes, for “the grief Anglo-Celtic Australians must surely be experiencing.”[3] 

The Commission’s decision in this matter is powerful evidence that official Australia remains blind to the consequences of imposing a multi-racial society on mainstream Australia .  Years ago, Paul Kelly observed that this project “is tantamount to the remaking of the national identity.”  Unlike Kelly, the Commission appears utterly oblivious to the mortal threat a multi-racial society poses to “the very soul of the old Australia.”[4]

Perhaps that is why the Commission has stigmatised my use of the phrase “national suicide” in the letter to the Sun. But anyone familiar with the literature on the subject of national identity would recognise that phrase as a reasonable, good faith effort to capture the essence of what “old-identity Australians” face at the hands of a managerial-professional elite acting in their name.  The old Australian nation is being destroyed deliberately and now the Human Right Commission forbids Australians to mourn its passing in public.  A more sensible objection to my phrasing might be that what we are witnessing is not a case of national suicide but of premeditated murder.

In any case, the metaphor has been widely employed by a wide variety of writers.  At a conference in Melbourne recently, British journalist Melanie Phillips worried that the United Kingdom , too, was bent on national suicide.  Like me, she pointed out that if non-white “newcomers are too different and too numerous, the host culture cannot survive.”  She also pointed out that for British intellectuals “the very idea of defending their host culture is racist.”  Explicitly referring to “the erosion” of national identity, she emphasized the need to draw a “sharp line between tolerance and social suicide.” [5]

Surely it cannot be maintained seriously that the use of such language by Ms Phillips in a book edited by Dame Leonie Kramer and published in Australia was unreasonable or made in bad faith within the meaning of s18D of the Racial Discrimination Act. 

Clearly, the language used by me in my letter to the Sun has become part of the common linguistic currency in circulation among participants in an international debate over the wisdom of current Western policies on immigration and multiculturalism.  To hold as the Commission does that such language cannot be employed “reasonably and in good faith” in a letter to a local newspaper is to impose a significant and unwarranted restriction on everyday political debate and discussion.

“Genuine Academic Purpose”

The Commission’s decision rests as well on the finding that my letter was “volunteered in response to…media reports…and not in the context of any prior or ongoing academic discussion.”  That conclusion rather obviously begs the question of just what an “academic” discussion might be in the context of s18D.

In its adjectival form, the word “academic” is defined by the Shorter Oxford English Dictionary as follows: 1. Of the school or philosophy of Plato; skeptical…2. Of or belonging to an academy; collegiate, scholarly…3. Of or belonging to a learned society; belonging to an Academician.  My letter was a “skeptical” critique of current immigration and refugee policy, particularly as it affects my local community, based on my “scholarly” understanding of the issues involved in that area of public policy.  For that reason, the letter was part of an ongoing “academic” debate and discussion in which I have been involved for years.

It cannot be the case that, simply because an academic writes a letter to the editor, an op-ed piece in a newspaper or a longer article in a journal of opinion, his work is not part of an ongoing scholarly debate or discussion among members of a learned society.  Scholars in contemporary Australia engage in “genuine academic” discussion and debate in any number of fora outside the classroom and university law reviews.  That is as it should be and the Act should have been interpreted by the Commission in a fashion that does not unduly restrict the available fora for such debates to academic journals inaccessible to ordinary members of the public.

“Any Other Genuine Purpose”

The Commission rejects my claim that my letter was also covered by the s18D(b) exemption in favour of statements, debates and discussion made for “any other genuine purpose in the public interest.”  The President’s reasons are said to be given in paragraphs 46 and 51 of the submission made by Mr Hareer’s legal representatives.  In fact, those paragraphs do not refer specifically to anything in my submissions or in the letter to the Sun. 

They simply state sweeping general principles unrelated to the facts of this matter; at most, in paragraph 51, Mr Knoll and Ms Katzmann merely assert that my letter amounts to a sweeping, public derogatory generalisation about a racial group.  Elsewhere, in paragraph 16, they declare that “truth is no defence” under s18C.  That is as may be, but the truth of my generalisation about black African social pathologies must be of critical importance in judging whether the observation serves a “genuine purpose in the public interest.” 

If true, my statement may be unflattering; it cannot be “derogatory.”  The “[l]owering in honour or estimation” (Shorter Oxford English Dictionary) associated with disproportionately high rates of black crime comes as a consequence of black behaviour not the objective reporting of such activity by others.  The public has a genuine interest in knowing whether there may be a link between ethnicity and a propensity to behaviour that is criminalized in almost every country.

Nowhere does the Commission acknowledge that discussion and debate about the characteristics of particular groups might be relevant to discussions of the public interests at stake in immigration and refugee policy.  In my submissions, I provided reasons why discussion of group characteristics is indeed both necessary and proper when selecting or rejecting potential migrants to Australia .  This is an issue to which I will return below.

The Commission says that “[f]or the same reasons, [the Commission] would not be satisfied that [my] comments constituted a fair comment on a matter of public interest.”  Since the Commission has not actually presented any substantive reasons for decision on this or the previous issue, I can hardly accept the legitimacy of its decision on this matter.  

Nevertheless, as indicated above, I am willing to take positive steps to reach a resolution of this matter through the conciliation process ordered by the Commission.  I look forward to a positive response to my resolution proposal from Mr Hareer and his legal representatives. 

This reply to the Commission’s letter of 31 March 2006 is not made in confidence or without prejudice provided that any use made of it is fair and in good faith.  I do not at this point propose to make it available to the media.

Regards,

Andrew Fraser

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[1] JJ Ray, “Blacks and the Crime Rate: Some Observations from Australia ” (1985) 69(4) Sociology and Social Research 590-591.

[2] See, eg, The Color of Crime: Race, Crime and Justice in America  Second, Expanded Edition ( Oakton , VA : New Century Foundation, 2005.)

[3] Miriam Dixson, The Imaginary Australian: Anglo-Celts and Identity—1788 to the Present (Sydney: UNSW Press, 1999), pp 42-3; see also, Katharine Betts, The Great Divide: Immigration Politics in Australia (Sydney: Duffy & Snellgrove, 1999.)

[4] Paul Kelly, “A Nation Reborn” The Weekend Australian 25-26 January 1997.

[5] Melanie Phillips, “Legal and Illegal Immigration” in Leonie Kramer,ed The Multicultural Experiment: Immigrants, Refugees and National Identity ( Sydney : Macleay Press, 2003), pp 5-6; see also, Lawrence Auster, The Path to National Suicide: An Essay on Immigration and Multiculturalism (Monterey, VA: AICF, 1990.)

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