Universities weak on defining anti-Semitic behaviour on campus

Pro-Palestine and pro-Israel student protests in the Great Court at the St Lucia campus of the University of Queensland in May, 2024. Picture:Lyndon Mechielsen/Courier Mail

The Australian Academic Alliance Against Antisemitism (5A) is deeply concerned about the university Group of 8’s rejection of the International Holocaust Remembrance Alliance’s working definition of anti-Semitism.

The federal government has adopted the IHRA version yet our most powerful universities want to impose an alternative – and weaker – definition to determine what will be permitted on campuses.

Go8 chief executive Vicki Thomson has relied on an assertion that the IHRA definition “is not workable without adaptation to Australian conditions and context”. How so? This is sophistry at its worst.

There is nothing unique about Australian conditions compared to the UK where the IHRA definition is widely adopted by leading universities - Oxford, Cambridge, the London School of Economics, and 110 other universities in England alone. The Canadian government itself has recently issued a handbook on applying the IHRA definition. Harvard has just settled a lawsuit against it for failing to protect the civil rights of Jewish students and has belatedly agreed to adopt the IHRA definition “for purposes of discipline“.

The definition is practical and states: “Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic. Anti-Semitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.”

Importantly, IHRA does not set a high threshold requiring proof of a particular adverse impact. For that matter, neither does the Racial Discrimination Act. The Go8 definition does however set that high bar. It refers to anti-Semitism as something which “impedes” Jews’ ability to participate as equals in educational, political, religious, cultural, economic or social life.

It seems obvious that conduct or accusations, such as Israelis/Zionists are the new Nazis, which are intimidatory, but which do not actually impede a Jewish student’s ability to attend classes or a Jewish academic’s ability to attend a staff meeting, can easily be anti-Semitic yet still pass muster under the G08 definition.

Would thinly veiled calls for violence against Jews, such as “globalise the intifada” cross the line? What about singling out of individuals who want to continue to collaborate with colleagues in Israel? Many examples of intimidatory conduct were brought to the attention of the parliamentary commission of inquiry into anti-Semitism at Australian Universities.

As for consultation with Jewish members of the Go8 community, not only was there no consultation with the elected leadership of the Australian Jewish community, the Executive Council of Australian Jewry, there was no consultation with key experts in the field of anti-Semitism, who are leaders and members of the Australian Academic Alliance Against Antisemitism. Imagine not consulting Indigenous Australians leaders and experts when preparing guidelines to ensure that they are treated fairly by our universities.

The universities are right however to require that any definition of discrimination regarding universities be applied in keeping with the principles of academic freedom. Australia has a long history of doing this. The Racial Discrimination Act has an exception to protect academic freedom in section 18D, provided the act that would otherwise be racist was part of academic research and engaged in reasonably and in good faith. Universities could and should adapt to that which the law already provides for.

Further, there is no evidence that the IHRA definition has inhibited free speech. And the Go8 may wish to acknowledge that which Professor Kathleen Mahoney explained in the first issue of the Australian Journal of Human Rights 30 years ago - that free speech is enhanced when vulnerable groups are protected from serious harm through racial hate speech.

The Go8 can do better at tackling antisemitism on Australian University campuses. However, taking a lead from “recommendations of anti-Semitism taskforces at some leading American universities,” is problematic. The attempt of these universities to come up with a definition that is not nationally or internationally accepted has fed into lawsuits against them and ongoing controversy. These are environments where anti-Semitism spiralled out of control. They include Harvard, which as noted above has now agreed to adopt the IHRA definition. Further, under US law, government agencies must consider the IHRA definition, including its examples, when assessing breaches of the Civil Rights Act. We understand that the G08 definition is to be introduced next month. It’s not too late to get this right.

David Knoll is a barrister and associate Professor, UNSW Faculty of Law, and director of the Australian Academic Alliance Against Antisemitism. Andre Oboler is CEO, Online Hate Prevention Institute, an honorary associate, La Trobe Law School, and member of the alliance.