PM’s bind over antisemitism

An old adage says a government should never set up an inquiry unless it has a very good idea as to what its findings might be lest it comes back to bite. That was certainly true of last week’s report by the Special Envoy to Combat Antisemitism Jillian Segal.

Clearly Prime Minister Anthony Albanese felt he had to be seen to be doing something about the appalling violence inflicted upon members of the Jewish community.

Segal’s recommendations, however, will put him in a bit of a bind. He says the Government is considering the recommendations. But whatever he does will be seen as too much by some and too little by others.

The trouble for Albanese is that there are several cogent objections to some of Segal’s recommendations and there is the possibility that enacting some of them could be contrary to the religion clause of the Constitution.

Segal recommended that the government withhold financial support from universities, programs or people that facilitate, enable or fail to act against antisemitism and that Holocaust and antisemitism education be embedded in the school curriculum.

The trouble with this is that it favours one religion over another. Section 116 of the Constitution says: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion . . . “.

Early constitutional scholars John Quick and Robert Garran (the first head of the Attorney-General’s department) wrote that “establishment” means “the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others”.

The High Court held in the 1981 DOGS (Defence of Government Schools) case that state aid to religious schools did not offend Section 116 because all religious schools were equally entitled to funding based on criteria that applied to all.

And that really is the answer here: have tough laws against all violence and incitement to violence and hatred.

It might be that the appointment of envoys to combat antisemitism and Islamophbia (which the Government has done) might run foul of Section 116 on Quick and Garran’s special-favours test.

Perhaps a more important point is that even if the constitutional challenge is a weak one, the mere fact that someone might run it in the High Court would unnecessarily stir up religious controversy.

Another of Segal’s recommendations is that all public institutions be required to use  the International Holocaust Remembrance Association definition of antisemitism.

The text of the definition is not the problem, rather it is the fact that seven of the 11 illustrative examples referred to criticism of Israel and therefore suggests that any criticism of Israel can amount to antisemitism. 

This is dangerous territory. Criticising governments is a fundamental part of freedom of speech and freedom of association and assembly. Attacking the behaviour of the Israeli Government and Prime Minister Benjamin Netanyahu over its violence in Gaza should not be seen as antisemitic.

Again, if Albanese tries to legislate for this he might run foul of the implied constitutional protection for political communication.

The High Court has held that representative democracy implies an informed electorate which in turn requires freedom of political communication. Any curtailing of that freedom has to be justified as serving a legitimate purpose that is compatible with representative and responsible government.

Creating offences based on the Holocaust definition might not pass muster.

Perhaps the best use of the constitutional arguments would be for the Government to use them as a reason for not acting on these over-reaching and specific recommendations, but rather to work on a campaign promoting general religious and racial tolerance; a campaign against religious hatred; and action to prevent and punish violence during all protest action.

Segal also recommended that public funding be withheld from universities, programs or people that facilitate, enable or fail to act against antisemitism.

Imposing collective punishment for an omission to act has its drawbacks.  As we have seen in the US, when governments threaten the funding of institutions that do not behave the way government commands, those institutions often buckle and academic freedom and freedom of speech suffer.

Freedom of speech, assembly and association are hallmarks of democracy and are keys to combatting authoritarianism. One sort of authoritarianism is theocracy. Iran is a good example.

It would be better to take religion out of the equation altogether. Once you have freedom of speech, assembly and association (with the usual attendant lawful limits), there is no need for a separate, additional freedom – that of religion.

If people can preach to assembled associations of people whatever they might regard as “truth” and other people can freely preach a different “truth”, what more do they need?

Shutting down protest and free speech is not the way to stop violence. People should be protected against violence and the perpetrators punished whatever the motive – religion, gang enforcement, greed, or politics.

Throughout history, protest has been an important element in the pursuit of peace and the exposure of violence, corruption and colonialism – Vietnam moratoriums and Gandhi come to mind.

Albanese now faces a difficult task of what to do with these recommendations, but he should be mindful that freedom of speech, assembly and association are more important than a separate freedom of religion because the former three already guarantee the last.

Crispin Hull

This article first appeared in The Canberra Times and other Australian media on 15 July 2025.

www.crispinhull.com.au