I begin by acknowledging the traditional custodians of the land on which we meet and pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the Wadjuk people of the Nyungar nation and acknowledge any Indigenous guests attending today.
Dean Professor Paul Fairall and I go back a long way as Law Deans in various places. I am now of the genre, in its past perfect tense of ‘has-Dean’, where he is of the ‘present and continuous’ tenses, of ‘always will be Dean’.
When Paul spoke to me about the possibility of speaking at this ALTA conference, I was delighted: both as to being drawn back into the warm, familiar environment of law teachers; but also because of the opportunity opened up by the enticing theme of the conference. He contacted me in March, when I was still deeply involved in the panel, chaired by the Hon Philip Ruddock, looking at the protection of religious freedom in Australia. The topic leapt to mind: that I would use as my Merchant of Venice focal point the character of Shylock, and use the speech as an opportunity to reflect upon issues concerning antisemitism in this, the 70th anniversary year, of the Universal Declaration of Human Rights.
So, to start with the play, and the character of Shylock—
Shylock the character
Shylock, the character, was a Jew and the embodiment of Jewishness as Shakespeare and his audience would recognise them when the play was written in the late 1590s. This built on a history of the treatment of Jews in English law and social custom, and also upon contemporary events.
The great early English historians, the two ‘Freds’, Sir Frederick Pollock and Frederic Maitland, tell us that ‘the Jew came to England in the wake of the Norman Conqueror’: as the king’s dependants and the king’s serfs. Jews ‘belonged’ to the King. This was the position in the late 11th and 12th centuries. But in July 1290, Edward I formally expelled Jews from England, the culmination of two hundred years of persecution. To get around these laws, a number of Jews ‘converted’, to continue their lives in England, particularly London. But because on their conversion they forfeited their possessions, they became penniless. In 1232 Henry III established the Domus Conversorum to provide a home and maintenance to converted Jews. These laws remained in force till Cromwell’s day, in the mid-17th century.
The focus in the Merchant is on Shylock as a money-lender. Both Christian and Jewish law did not approve of money-lending at interest, which was called ‘usury’. But while Jewish law forbade usury among Jews, it did not do so between Jews and Christians. Hence, Jews were allowed to do things that were forbidden to Christians. As attitudes towards Jews hardened, they were squeezed into the areas that were off-limits to Christians and marginalised as a result—into occupations such as selling old clothes, peddling and money-lending.
In his book, Racism: A Short History, George Fredrickson observed that the increasing hostility of European Christians towards Jews in the 12th and 13th centuries ‘laid a foundation for the racism that later developed’.
The Reformation led to a change in attitude to money-lending. John Calvin drew a distinction between ‘usury’, in which a high rate of interest was charged, and lending at low interest. So, by Shakespeare’s time the Protestant concept of usury was confined to lending money at very high rates of interest, rather than any interest at all. In the MacMillan Shakespeare edition of The Merchant of Venice, the editor, Christopher Parry notes that the practice of usury in this sense was spreading widely in Shakespeare’s England. ‘London was becoming what Venice was renowned the world over for having once been, a great centre of international trade and commercial prosperity’. Usury was necessary. Borrowing sustained many aristocratic families, as it did the monarchy. Even Shakespeare’s Company had to borrow heavily to build the Globe theatre in 1599.
But to the early Elizabethans, the practice of borrowing money under controlled conditions was still offensive.
The Church condemned usury as sinful; the law attempted to restrain it to an interest rate of ten per cent; but by turning a blind eye and by allowing plentiful loopholes, both Church and State permitted it to flourish. Usury was generally considered to be a grave social evil, yet society could not, it seemed, do without it. There was much popular loathing for usurers and their ‘needful’ services.
The loan in the play to Bassanio by Shylock is without ‘interest’, although the guarantee is the ‘pound of flesh’, for which the play’s legal drama has become famous. Why the loan? Antonio, his friend, the ‘Merchant of Venice’ of the title of the play, acts as surety for Bassanio, who is wooing Portia, an heiress. Shylock is the lender. The loan of 3,000 ducats is at least $500,000 in today’s money.
The casting of Jews as villains
Shylock is the villain of The Merchant—but a complex one. The villainy of Jews was a familiar idea to Shakespeare’s audience, although at the time the play was written, in the late 1590s, there were very few Jews in officially in England. In Shakespeare’s day there were a few hundred Jews of Spanish and Portuguese descent living in London, professing a nominal Christianity to get around the residence laws, and generally accepted as members of the community.
Christopher Marlowe’s play, The Jew of Malta, written in about 1590, had great public success—it was a ‘box-office hit’ of its day. There are parallels between the plays although, as Christopher Parry notes, Marlowe’s Jew is ‘an impresario of wickedness’ and a ‘cartoon figure’, when compared with the ‘human portrait of Shylock’.
Marlowe’s play was revived a few years later, in the wake of the trial of one Dr Roderigo Lopez, in 1594. Dr Lopez was, a Portuguese-born converso, one who left Portugal after the expulsion of Jews in 1497. He was Queen Elizabeth I’s physician and was tried and executed for treason, including for trying to poison the Queen. Christopher Parry suggested that while a number of the charges ‘may have been trumped up for political purposes’,
his trial undoubtedly stirred up prejudice against Jews in general as dark and devilish plotters of harm towards Christians. In the popular mind this prejudice was supported less by facts than by inherited fears and traditional attitudes, by a background of legends, ballads and stories, and to some extent by plays that presented Jews in this light.
Dr Lopez’s trial and the revival of Marlowe’s play, may well have been the impetus for Shakespeare in writing The Merchant.
Over the centuries Jews were often the targets for blame for all manner of catastrophes. For example, the ‘Black Death’ plague in the mid-14th century ‘inspired an especially urgent hunt for scapegoats’ and thousands of Jews were massacred in those countries that had not expelled them, because of a widespread belief that Christians were dying because Jews had poisoned the wells. As George Fredrickson remarked, Jews ‘have again and again served as scapegoats for whatever fears and anxieties were uppermost in the minds of anti-semites’.
It wasn’t only Jews that were targeted by such antagonistic thoughts, however, but for today’s talk I have focused on this group.
Anti-semitism in The Merchant
Antonio, the eponymous Merchant of Venice, is a businessman. He also lends money. But he is cast as the ‘good’ merchant, where Shylock is the villain. The anti-semitic undertone is evident in Antonio’s mistreatment of Shylock. In Act One, Scene three, when Bassanio is seeking the loan, Shakespeare reveals Antonio’s treatment through Shylock:
Signior Antonio, many a time and oft
In the Rialto you have rated me
About my moneys and my usances.
Still I have borne it with a patient shrug,
For sufferance is the badge of all our tribe.
You call me ‘misbeliever’, ‘cut-throat dog’,
And spit upon my Jewish gaberdine;
And all for use of that which is mine own.
Well then, it now appears you need my help.
Go to, then. You come to me, and you say,
‘Shylock, we would have moneys’; you say so;
You that did void your rheum upon my beard
And foot me as you spurn a stranger cur
Over your threshold. Moneys is your suit.
What should I say to you? Should I not say,
‘Hath a dog money? Is it possible
A cur can lend three thousand ducats?’ Or
Shall I bend low, and in a bondman’s key
With bated breath and whispering humbleness,
‘Fair sir, you spat on me on Wednesday last:
You spurned me such a day; another time
You called me “dog” — and for these courtesies
I’ll lend you thus much moneys’?
Jews in 19th century London
The casting of Jews as villains was not only a late 16th century trend, but can be seen also in later literature, most particularly in Charles Dickens’ character Fagin, in Oliver Twist (1837−39). As one Dickens commentator stated, ‘Fagin’s name, like Shylock’s, has become a synonym for meanness and depravity, and Dickens’ and Shakepeare’s villainous Jews are the best-known characters in English literature’. Oliver Twist is an expression of ubiquitous anti-semitism of the period.
Fagin was reportedly based on a notorious Jewish fence called Ikey Solomons. Solomons, like Fagin, dealt in stolen jewelry, clothing and fabrics. He was tried in July 1830 and was convicted of possessing stolen goods. Dickens described Fagin as having ‘matted red hair’. This points to Fagin as being of Ashkenazic Jewish background—Jews that came from France, Germany and Eastern Europe. The latter had come to London across the Channel as refugees in the 17th century, joining the Sephardic Jewish population (predominantly from Spain and Portugal) to form an important minority of 20,000 in 19th century London.
Some London Jews came to Australia—as convicts. There were reportedly at least eight on the First Fleet, although the number could have been higher as the religion of the convicts was not recorded. One who was transported from London was the self-same Ikey Solomons. He was sentenced to seven years transportation.
The intensification of anti-semitism in Europe
Dislike, distrust, disdain for the Jews intensified in the 19th century, leading to pogroms in Russia and Poland in the 1880s.
But it was the Germans, Fredrickson stated, who, ‘more than any other western Europeans, repudiated the civic nationalist ideal inspired by the Enlightenment and the 18th century revolutions in favour of a concept of national membership based predominantly on ethnic origins rather than human rights’. This was the essence of the idea of volksgeist—spirit of the people.
In such contexts it is no longer about religion, as conversion could deal with this, but about some notion of purity of blood—a critical step in the history of Western racism. With the passing of the Nuremberg Laws of 1935, Nazi Germany became ‘a full-fledged racist regime’. It was much more than about religion. Citizenship was limited to exclude Jews. Marriage and sexual relations between Jews and German citizens was prohibited. On the night of 9 November 1938, violence against Jews was escalated, known now as Kristallnacht, the ‘night of broken glass’. In 1939, Jews were denied the right to operate businesses and possess substantial property, forcing many to emigrate, and then into internment in concentration camps that would become the death camps.
As Fredrickson remarked, ‘The Second World War, into which Hitler plunged the world, was the climax and turning point in the history of racism in the twentieth century’.
A ‘milder’ form of antisemitism made countries like the United States and Great Britain reluctant to accept many Jewish refugees from Germany before the outbreak of the war, finding it hard to believe the first accounts of the ‘final solution’. The St Louis, carrying over 900 Jews, was turned away at Havana and New York, forcing their return to Europe. Although Belgium, Holland the UK took them in, over 250 perished in the Holocaust.
The Holocaust caused a deep ‘soul-searching and moral revulsion by revealing what happened when extreme racism was carried to its logical outcome’.
How I learned about the holocaust
My parents were University students during the Second World War. They demonstrated on floats and burned effigies of Hitler—the kind of thing you would expect of university students. They have no Jewish heritage, but they were students of history. They wanted to ensure that their children would understand.
When I was 16 my parents took me and my sisters on a trip to Europe. They wanted to ensure we learned history’s lessons. Part of our journey included a trip to Dachau concentration camp and to a war cemetery.
Dachau was the first ‘Konzentrationslager’. Across the gate, in 1930s block font, were the words ‘Arbeit macht frei’—‘work makes you free’. There was also a memorial, with an urn containing the ashes of an unknown prisoner, and the words ‘Plus jamais’ (‘never again’).
We went in winter. The black and white of the images in the museum were echoed in the landscape. I will never forget the snow on the crosses of the war graves, in their neat rows across a bleak winter field.
The holocaust and the United Nations—the International Bill of Human Rights
The ‘deep soul-searching’ that Fredrickson identified, was one of the propelling forces for the establishment of the United Nations. Its Charter reaffirmed in the Preamble the collected nations’ ‘faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women’.
While it was the maintenance of collective security that was uppermost in the minds of the nations gathered as the first ‘General Assembly’, the human rights project gathered momentum, so that they would:
live up to their war rhetoric by providing assurances that the community of nations would never again countenance such massive violations of human dignity.
The Universal Declaration of Human Rights that resulted, adopted by the General Assembly on 10 December 1948, would become not only an instrument, but
the most prominent symbol, of changes that would amplify the voices of the weak in the corridors of power. … It is the parent document, the primary inspiration, for most rights instruments in the world today.
This is its 70th birthday year.
The Preamble included a recognition of the security issues, but seeing the end of these as a necessary condition of fostering the dignity of everyone. It was ‘disregard and contempt for human rights’ that resulted in ‘barbarous acts which have outraged the conscience of mankind’. It was therefore necessary to affirm that ‘the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.
It was envisaged that the Declaration would be followed by binding treaties, and the new Commission on Human Rights was given the job, but this took a while.
The 1950s were consumed by the Cold War, and the ideological differences that had hardened between East and West, and so it took until the 1960s for the United Nations to be able to achieve the two covenants that, together with the Universal Declaration on Human Rights, would be known as the ‘International Bill of Human Rights’: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR).
A mandatory reporting procedure was introduced: for the ICCPR to the HRC (to be comprised of 18 experts); and for the ICESCR to the Economic and Social Council, with no role for an International Court of Justice. The UNCHR was also given power to consider inter-State and individual communications—the latter being included in an Optional Protocol.
On 16 December 1966, both Covenants and this Optional Protocol were adopted by the General Assembly. While both Covenants were adopted unanimously, there were 38 abstentions for the Optional Protocol, including all from Socialist States. A Second Optional Protocol, aimed at the complete abolition of the death penalty, was adopted on 15 December 1989, 59:26, with 48 abstentions. It took another ten years for the Covenants to enter into force: the ICCPR on 23 March 1976; the ICESCR on 3 January 1976. These covenants complemented a range of conventions on specific topics, adopted mainly over the next decades. The combination of rights guaranteed in the two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.
It was the ratification of the ICCPR by Australia in 1979 that provided the catalyst to the passage of the legislation that established the first iteration of the Australian Human Rights Commission in 1981, by a conservative Government, led by the Hon Malcolm Fraser MP as Prime Minister. The Act establishing this first Commission included a sunset clause under which the first Commission ceased operation in 1986. The passage of the Australian Human Rights Commission Act 1986 (Cth) marked the establishment of the present Commission, symbolically on 10 December 1986—International Human Rights Day. (It was first called the Human Rights and Equal Opportunity Commission, or HREOC, and renamed in 2008).
The protection of race and religion under the conventions and in Australian law
The protection of race was the foundation stone in many ways of the Australian Human Rights Commission. Australia supported the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 1965 and gave effect to it in domestic law through the first of the anti-discrimination laws at the Commonwealth level, the Racial Discrimination Act 1975 (Cth) (RDA) and the establishment of the position of Community Relations Commissioner. The conception of ‘race’ in ICERD is ‘race, colour, descent or national or ethnic origin’. This is the concept used in the RDA: in section 18C(1)(b). Race, in this sense, is described as a ‘protected attribute’. The protection is against discrimination on the basis of race in the areas of activity such as work, education and the receipt of goods and services.
Religion is not expressly protected in the Commonwealth anti-discrimination acts, although there is a specific provision that is in the AHRC Act derived from the International Labour Organisation Convention concerning Discrimination in Respect of Employment or Occupation (ILO 111), which has not been picked up fully in its own legislation, as other attributes have. ILO 111 defines discrimination as ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’ (emphasis added). Discrimination under ILO 111 is not unlawful where the distinction, exclusion or preference in respect of a particular job is based on the ‘inherent requirements’ of the job.
Three states include ‘religion’ or ‘religious belief’ as protected under their anti-discrimination laws: Queensland, Tasmania and Victoria. The ACT protects ‘religious conviction’; while the Northern Territory protects ‘religious belief or activity’.
Where does anti-semitism sit in this mix of laws? In the case of Jews, the issues of race and religion have become intertwined. With respect to Jews in Australia, they are regarded as a group of people with an ‘ethnic origin’ for the purposes of the Racial Discrimination Act 1975 (Cth). Muslims, Buddhists and Christians, on the other hand, are not. This means that there are difficult questions in relation to distinctions between race, ethnicity and religion that mean people may have different levels of legal protection.
Anti-semitism is essentially ‘racial’. While the expression of it may appear anti-religious, as vandalism of Jewish schools, synagogues, graves, this is not so much anti-Judaism, but anti-Jew. It is the same manifestation as the anti-semitism of The Merchant.
The protection of race and religion in the ICCPR is not absolute. While the human rights of the covenant are equal and indivisible, there are important times when rights may appear to conflict: such as the arguments concerning freedom of speech and the relationship of this right to exercises of religion and the protected attribute of race. These arguments are played out frequently in the media. Key points of engagement in recent times have focused on s 18C of the Commonwealth RDA.
But these are not new arguments. They were much debated during the development of the Universal Declaration and the ICCPR.
Shylock’s comments on intolerance resonate down the centuries. In Act 3, Scene 1, Shylock refers to Antonio’s disparagement of him:
He hath disgraced me and hindered me half a million, laughed at my losses, mocked at my gains, scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies—and what’s his reason? I am a Jew.
This leads into the famous passage of rhetorical questions:
Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?
The response to such questions, in human rights terms, is article 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’
Shakespeare however continues the analogy into a darker side of equality: revenge—another theme of this conference:
And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that. If a Jew wrong a Christian, what is his humility? Revenge. If a Christian wrong a Jew, what should his sufferance be by Christian example? Why, revenge. The villainy you teach me I will execute—and it shall go hard but I will better the instruction.
This is an example of how Shakespeare’s Shylock is a complex character, being used as a mirror to hypocrisy, in this case Christian hypocrisy in its treatment of him, while still being cast as the villain.
Each year in Australia the Executive Council of Australian Jewry produces an Annual report on antisemitism. The report for 2017 alone runs to 176 pages. It tracks a wide range of incidents and expressions of opinions—from pelting Jews with eggs around synagogues on the Jewish Sabbath, to social media. The conclusion for that year was that
although Australia remains a stable, vibrant and tolerant democracy, where Jews face no official discrimination, and are free to observe their faith and traditions, antisemitism persists. There are segments of Australian society which are not only hostile to Jews, but actively and publicly express that hatred with words and threatened or actual violent acts. As a result, and by necessity, physical security remains a prime concern for the Jewish community.
The ‘casual racism’, targeted by the Race Discrimination Commissioner in the National Anti-Racism Strategy and the Racism. It Stops With Me campaign, can slide easily into the more savage disparagements that Antonio exhibited and physical attacks—spitting and kicking, as he did.
In his short history of racism, George Fredrickson described how anti-Judaism became anti-semitism:
whenever it turned into a consuming hatred that made getting rid of Jews seem preferable to trying to convert them, and anti-semitism became racism when the belief took hold that Jews were intrinsically and organically evil rather than merely having false beliefs and wrong dispositions.
Fredrickson wrote that anti-semitic racism persists and that ‘hate groups in many countries continue to believe the Hitlerian myth that the world is threatened by a Jewish conspiracy’.
Like the Executive Council of Australian Jewry, Fredrickson says that
in Western democracies antisemitism is officially deplored but Jewish leaders in several countries fear that passive antisemitism remains widespread and that circumstances can be imagined that would cause a resurgence of its more virulent manifestations.
Before I finish my reflections today, I wish to return to the stalwart Third Committee of the General Assembly, charged with the drafting of the Universal Declaration, and particularly its chair, Mrs Roosevelt.
In my historical exploration of the Universal Declaration of Human Rights I have been particularly taken by the role of the recently widowed Mrs Eleanor Roosevelt, wife of Franklin D Roosevelt, President of the US from 1933 to 1945.
Her biographer, Professor Mary Ann Glendon, wrote of Mrs Roosevelt’s trepidation at undertaking her role. To her daughter, Anna, she wrote privately that ‘tho the responsibility seems great I’ll just do my best and trust in God’.
The drafting of the Declaration was entrusted to the Third Committee of the General Assembly. Its chair was Mrs Eleanor Roosevelt. The three central people in the Committee were Peng-chun Chang, a Chinese philosopher, diplomat and playwright; René Cassin, a French law professor, and a Jew, who had lost 29 relatives in concentration camps; and Charles Malik, a Lebanese academic, philosopher and diplomat and chief spokesman for the Arab league.
Mrs Roosevelt managed to steer the Third Committee through its pioneering work. She was a natural leader, drawing together the strengths of Chang, Cassin, and Malik. These personalities framed the story of the drafting of the University Declaration.
In 1838, in an essay ‘On History’, the Scottish philosopher, Thomas Carlyle, described history as ‘the essence of innumerable biographies’. In my legal historical excursions in the past I have been singly affected by how much the stories of individuals sit behind the story of law—innumerable biographies, in Carlyle’s words.
The history of the Universal Declaration of Human Rights is not only ‘the essence of the lives’ of the men of the Third Committee, but also the essence of the indomitable woman in its Chair. There will be much to be written this year about the Declaration and its influence on the covenants that followed.
Shylock will not be part of that story, but antisemitism as an offence to the dignity of humankind will.
1. Pollock and Maitland, History of English Law before the time of Edward I, vol 1, 468─469.
2. In 1218, Henry III declared the Edict of the Badge, requiring all Jews to wear a badge. In 1275 the Statute of the Jewry outlawed all lending at interest and the Jews were given 15 years to adjust. In 1287, Jews were expelled and their property seized. In 1290 there was the final Edict of Expulsion.
3. Joseph Jacobs and M Abrams, ‘Domus Conversorum’, Jewish Encyclopedia, http://www.jewishencyclopedia.com/articles/5271-domus-conversorum.
4. See, eg, Joseph Jacobs and Victor Rousseau Emanuel, ‘Cromwell, Oliver’, Jewish Encyclopedia, http://www.jewishencyclopedia.com/articles/4772-cromwell-oliver.
5. O Hood Phillips, Shakespeare and the Lawyers, Routledge, 1972, 91; Ian Harper and Lachlan Smirl, ‘Usury’, Oxford Handbook of Christianity and Economics, Paul Oslington (ed), Oxford University press 2014, 564. Based on biblical texts: Exodus 22:25; Leviticus 25: 35–37; Deuteronomy 23: 19–20; Luke 6: 34–35..
6. George Fredrickson, Racism: A Short History Princeton University Press, 2002, 19; Harry Stone, ‘Dickens and the Jews’ (1959) 2(3) Victorian Studies 223, 225─226.
7. Fredrickson, 19.
8. See, eg, James Frierson, ‘Changing Concepts on Usury: Ancient Times Through the Time of John Calvin’ (1969) 7(2) American Business Law Journal 115. This was reportedly the beginning of the Swiss banking industry.
9. The Merchant of Venice, Christopher Parry ed, MacMillan Shakespeare, 1976, 13.
10. Parry, 13.
11. Parry, 14.
12. The Merchant of Venice, Christopher Parry ed, MacMillan Shakespeare, 1976, 10-11.
13. Parry, 12.
14. Parry, 12.
15. They were expelled from Spain in 1492. Jews were given a choice: convert or leave. Many ‘chose baptism as an alternative to expatriation’, so that the population of Spain at this time contained hundreds of thousands of ‘conversos’: Fredrickson, 32.
16. Parry, 11.
17. Gary Rosenshield, ‘Deconstructing the Christian Merchant: Antonio and “The Merchant of Venice”’ (2002) 20(2) Shofar 28, 33; Susan Oldrieve, ‘Marginalized Voices in “The Merchant of Venice”’ (1993) 5(1) Law and Literature 87, 96–97.
18. Fredrickson, 22.
19. Fredrickson, 23.
20. Stone, 223.
21. Stone, 226.
22. Stone qualifies whether Solomons was the actual model for Fagin, rather that Fagin was based on a range of stereotypical Jewish portraits: Stone, 226−227, n 7.
23. ‘A Brief History of Australian Jewry’, Archive of Australian Judaica: https://web.archive.org/web/20130409235452/http://judaica.library.usyd.edu.au/histories/History.html; ‘The Jewish experience in Australia—Fact sheet 217’, National Archives of Australia: http://www.naa.gov.au/collection/fact-sheets/fs217.aspx.
24. Stone, 226.
25. Fredrickson, 69–70.
26. Fredrickson, 33. A prelude in the 18th century was racial typing, establishing a framework for ‘biological racism’ in the 19th century: 61.
27. Fredrickson, 123.
28. Fredrickson, 123–124.
29. Fredrickson, 125.
30. Fredrickson, 127.
31. Fredrickson, 128.
32. ‘SS St Louis—the ship of Jewish refugees that nobody wanted’, 13 May 2014, https://www.bbc.com/news/magazine-27373131; https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267
33. Fredrickson, 127.
34. Mary Ann Glendon, A World Made New—Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, 2002, xv-xvi.
35. A World Made New, xvi.
36. Replaced by the Human Rights Council in 2006. It was a subsidiary body of the UN Economic and Social Council (ECOSOC).
37. See Manfred Nowak, UN Covenant on Civil and Political Rights, 2nd rev ed, NP Engel, 2005, xxii-xxii.
38. Nowak, xxiii.
39. Nowak, xxiv.
40. Nowak, xx.
41. The position was replaced by the Race Discrimination Commissioner with the passage of the Australian Human Rights Commission Act 1986 (Cth).
42. Australia added discrimination on the basis of criminal records in 1989 by Regulation.
43. Anti-Discrimination Act 1991 (Qld) s 124A(1); Anti-Discrimination Act 1998 (Tas) s 19(d); Racial and Religious Tolerance Act 2001 (Vic) s 8(1); Discrimination Act 1991 (ACT) s 67A(1)(f); Anti-Discrimination Act (NT) s 19(1)(m).
44. Jones v Scully (2002) 120 FCR 243, –. Compare NSW: the definition of ‘race’ in the Anti-Discrimination Act 1977 (NSW) includes ‘ethno-religious or national origin’.
45. Katherine Gelber, ‘Hate Speech in Australia: Emerging Questions’ (2005) 28 University of New South Wales Law Journal 861, 862–3.
46. On the ICCPR, see Marc J Bossuyt, Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights, Martinus Mijhoff Publishers, 1987. Glendon includes a discussion of the UDHR through the perspective of Eleanor Roosevelt: A World Made New.
47. Executive Council of Australian Jewry, Report on Antisemitism in Australia 2017, available at www.ecaj.org.au/wp-content/uploads/2012/08/ECAJ-Antisemitism-Report-2017.pdf.
48. Report on Antisemitism in Australia 2017, 8.
49. See, eg, ‘What is casual racism?’, 8 July 2014: https://www.humanrights.gov.au/news/stories/what-casual-racism; ‘National Anti-Racism Strategy and Racism. It Stops With Me Campaign’, 14 May 2015: https://www.humanrights.gov.au/our-work/race-discrimination/projects/national-anti-racism-strategy-and-racism-it-stops-me-campaign.
50. Fredrickson, 19.
51. Fredrickson, 143.
52. Fredrickson, 144.
53. A World Made New, 25.
54. T Carlyle, ‘On History’, Critical and Miscellaneous Essays (1838).