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Taking offence at Roxon’s human rights laws

The danger with the anti-discrimination law reform is that it is so particular, baroquely crafted and precise in what it attempts to police, that its operation would not be loud and upfront. Quiet and subtle doesn’t get it done.

With the draft of the new Human Rights and Anti-Discrimination Bill in circulation, it was inevitable that the right-wing thunderers would be out in force. There would be a “chilling effect on free speech” according to the IPA’s “Freedom Watch” (brought to you by … a number of corporate interests they won’t tell you about).

While in The Australian, Greg Hunt says that the bill itself is un-Australian. Indeed. Perhaps a House committee on the activities of such should be convened. And the ever-reliable old ALP Grouper Bill Muehlenberg, of course, compared it to 1984, and managed to approvingly quote Watergate lunatic Chuck Colson in the process.

That is all absurd hyperbole, all the more dangerous because it obscures the real dangers and demerits of the new act. Were there ever a situation where people were being thrown in jail Left, Right and centre for indulging in language or behaviour offensive to the eighteen different enumerated groups in the draft act, grouped by race, gender, s-xuality, etc, then the response would be immediate and the law would collapse immediately.

The danger with the proposed new law is that it is so particular, baroquely crafted and precise in what it attempts to police and to exclude from policing, that its operation would not be loud and upfront, but quiet, subtle and bogged down in detail. The act’s effect on free speech would not be chilling, but muffling. It would slowly but steadily enforce the idea that the state should micromanage what people say. Eventually people will come to accept this as a purely procedural process, like renewing a dog license, or paying a parking fine on-the-spot.

You have to concede one thing to the drafters of Roxon’s magnum opus. It is a real “advance” in the art of human rights legislation in that it connects bans on offensive speech so neatly with harassment and discrimination. Essentially, the act is a “unified field theory” of such laws, fusing them into one. Hitherto, these have been kept separate, with harassment tied closely to physical action or threat, discrimination to the exercise of power, and vicious speech governed by vilification laws.

Now, each is expressed in terms of the other. So, while only racial vilification is specified as banned speech, discrimination based on offence or insult can be proven on eighteen different grounds, from political opinion, race, s-xuality and gender to potential pregnancy and breastfeeding.

Those are worthy things to defend from real discrimination and harassment — someone not getting a job or a promotion because “you’ll just have a baby” or similar — but they come to grief with the insult and offence provision. Some of these eighteen attributes of potential discrimination/harassment — such as political origin — have been restricted to the workplace, but it still leaves plenty of scope for vexatious and pointless interventions into the mere act of human conversation — of a somewhat abrasive character — pivoting on the law.

Thus, say you’re arguing with the office climate change denier, who’s rabbiting on about sunspots and the upside-down hockey stick etc and you say to her/him: “if you believe that, you must be some sort of drooling moron”. Banter where I come from, if not outright flirting, but let’s say you have technical seniority over that moron. From my reading of the draft, that in itself would count as grounds for a discrimination/harassment claim — even if no harm other than insult or offense is being alleged.

That is, the moron in question doesn’t have to allege that they missed out on a promotion because they’d expressed their beliefs — they simply have to establish that they were offended in a workplace context. I can’t see any other way of reading sections 19-1,2 of the act:

So, presumably you can protect yourself if you call everyone in the office a drooling moron as well.

Unlike the valiant freedom watchers on the Right, I don’t think that this sort of thing will shut down liberty. But it will add to the vexatious and vengeful claims that already rattle through the commissions (along with the many genuine ones). Most crucially, it concretises the idea that the ebb and flow of social behaviour can be micro-regulated, rather than empowering countervailing powers — unions, advocacy groups — to fight for a culture of equality and fairness at the social level.

The effect of this is to relieve people of both the obligation to be decent, and of the need to fight for it as a social good. Instead, the law takes over, and the idea that social life is just a shadow of power and process becomes enforced.The real heart of this is the provisions on racial vilification, which are a Kafkaesque masterpiece. On the one hand the act imports the old provisions of the Racial Discrimination Act, which bans offence or insult based on race. However, to deal with criticisms following the Bolt case — that the old 18c provision shut down debate — the act includes the following caveats. Insulting or offensive speech may not be vilifying if:

Well, that will at least make it for some interesting court cases. The “insult and offence” provision is particularly wide-ranging, when twinned with the definition of race, which includes: “colour, descent or national or ethnic origin”. This broadening of race reflects no social reality. To call someone a “typically dumb Yank” is an insult that leaves no mark. To call the same person a “typically dumb nigger” is a vicious, and quite different act.

Whether even that speech should be actionable under law is a question, but what there can be no doubt of, is that insults which go to the core of a person’s physical embodiment — where that embodiment has historically been treated as inferior — have a completely different character to insults based on what passport someone holds. The RDA was put in place to address a specific issue — the relation between a white settler people and a non-white indigenous people. Expanding the definition of “race” out to a vague one of national identity utterly defeats the meaning and purpose of it.

Yet the problem with filleting these laws — the product of a party that has become little more than a lawyers’ cabal, more interested in controlling behaviour than in changing an unequal society — is that they reflect a social demand we see as real. The Right have an easy answer — a blind libertarianism (albeit one which fails them when faced with a prankster like Jonathan Moylan of the Whitehaven hoax) that tends to appeal to white guys so embedded in cultural power that no words can touch them.

Call Chris Berg a tweedy vanilla boy-fogey, and it glances right off. Call Noel Pearson an “uncle Tom” and … well, you can see the difference. Relations are fundamentally unequal, and there is grounds for arguing that the law should reflect that. Any culture has specific areas where some sort of legal restraint might be legitimate. I don’t think there should be a ban on denying the Holocaust in Australia, but it may have some justification in Germany.

Equally, in a settler country, perhaps there should be some recognition that colour-based racial insult of a sustained and vicious character should be legally curtailed. In that case, the specificity ensures that the law expresses widely held social mores —  it is precisely because it is not applied to every form of identity, that guarantees its legitimacy.

If Roxon and co. want a law that enables rather than oppresses, they should limit the racial vilification clause in that manner, and strip the “offence and insult” provisions from the discrimination and harassment clauses. And the Greens — who came to the support of Moylan this week — now have little choice but to oppose these wide-ranging provisions of the bill.

As I noted at the time of the Bolt case, while sympathising with the plaintiffs concerning the vile nature of Bolt’s slurs, a Left that wants to argue for the moral legitimacy of law-breaking can’t be in the position of extending law to the very act of speech itself. Now those two conditions are occurring virtually simultaneously. You couldn’t make it up, but I’m sure the thunderers will try.

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  • 1
    Serenatopia
    Posted Friday, 11 January 2013 at 2:21 pm | Permalink

    Lawyers are seriously over-represented in our Government. Always be warned when lawyers want to over-legislate!

    It is the same Roxon that has facilitated and empowered the continuous abuse of whistleblowers and taxpayers by paving the way for the Commonwealth and its agencies to misuse top-tier law firms to fight legitimate cases and claims.

    I am not looking forward to the transformation of our democracy to a dictatorship crafted by the hands of these duplicitous lawyers.

    I guess I will not be able to express myself as candidly and nor will Crikey, without the threat of Government and their cronies misusing these laws!

    Too bad for them — -I am not scarred! Because I don’t just ‘genuinely believe’ that we are led by pirates, I actually have the evidence to support my allegations!

  • 2
    Tim Macknay
    Posted Friday, 11 January 2013 at 2:54 pm | Permalink

    Guy, having just read the draft, I thoroughly agree with your concerns. With the inclusion of “insult” and “offend” in the general definition of discrimination, the Bill goes too far.

    Serenatopia, I don’t think much of your anti-lawyer prejudice. Lawyers are much more engaged in protecting liberties in this country than they are in curtailing it. All over the country there are lawyers working in Legal Aid offices, community legal centres, in small practices and pro bono (i.e. for free) to advocate for the rights of ordinary people who have been mistreated by government, business, or others with power over them. Your ignorant prejudice insults them all.

    And the main problem with the law as drafted isn’t that “government and its cronies” will misuse it, but that unscrupulous private parties will use it to silence their critics or harass people.

  • 3
    Andybob
    Posted Friday, 11 January 2013 at 3:54 pm | Permalink

    A law against being rude. Wouldn’t it be much simpler to simply ban those with whom we disagree ? I have a little list ….

  • 4
    Matt Hardin
    Posted Friday, 11 January 2013 at 5:17 pm | Permalink

    The main victims of prosecution by these laws will be protestors. This is the way the police used similar laws in the UK.

  • 5
    Serenatopia
    Posted Friday, 11 January 2013 at 5:50 pm | Permalink

    Tim Macknay…I am a lawyer myself and I am all about standing up for justice and all…My comment was not targeted to the wonderful lawyers in Legal Aid offices, community legal centres and small practices…

    You should read my comment more closely before you accuse me of prejudice.

    I am concerned that lawyers that come from those unscrupulous ‘private parties’ you talk about including the likes of Roxon and Gillard…are running the country to the advantage of those unscrupulous ‘private parties’ and to the disadvantage of the public…including those protestors that Matt Hardin rightly identifies…

  • 6
    Achmed
    Posted Saturday, 12 January 2013 at 9:16 am | Permalink

    This law would tie up our courts with a lot of vexatious claims. The arguement about was is offensive and what is not would take up thousands of dollars in lawyers fees and tie up already crowded courts.
    I see a similarity to current Bullying in the Workplace legislation.
    The problem comes when claims are found to be vexatious there is no “penalty” against the person making the claim. And at the end of the day when mud is thrown some sticks no matter the outcome

  • 7
    Jonathan Raseta
    Posted Saturday, 12 January 2013 at 6:59 pm | Permalink

    Guy,
    If you weren’t so interested in taking shots at ‘the Right,’ you’d realize that the IPA are making the same points that you make.

  • 8
    Achmed
    Posted Saturday, 12 January 2013 at 7:34 pm | Permalink

    If the IPA are defenders of freedoms why do they keep secret who the “corperate interests” are?

  • 9
    Guy Rundle
    Posted Monday, 14 January 2013 at 12:19 am | Permalink

    Yes Jonathan, but my point is that the Right is make them hyperbolically, and offering as an alternative a simplistic model in which we all have equal social power, and that there is nothing we, as a community, regard as abhorrent. I think that offensive or insulting attacks on someone’s nationhood should not be policed - but I, and many others, think that vicious attacks on physical-cultural race, should attract some penalty. Groups like the IPA, by offering simplistic non-solutions, don’t deal with the challenge the new law represents

  • 10
    Deirdre Ryan
    Posted Tuesday, 15 January 2013 at 12:15 pm | Permalink

    Surely, this is a matter that is tied in with declaring Australia a REPUBLIC? and a matter that should be put to a REFERENDUM - not left to a few lefties and the Bureaucracy to cobble together. Especially at this time in Oz History as Politicians/Bureaucracy are of the poorest standard that I’ve EVER seen in my lifetime - both Federal & State in Australia.

    I don’t remember the Labor Party (or any political party) being given this impramatur on such a very important matter.

  • 11
    Achmed
    Posted Tuesday, 15 January 2013 at 12:22 pm | Permalink

    Deirdre - I don’t see the connection between Aust becoming a republic and these proposed laws. Perhaps you could explain

  • 12
    thelorikeet
    Posted Thursday, 24 January 2013 at 8:19 pm | Permalink

    A problem with Guy’s analysis is that it is not **quite** what the Bill proposes, or at least what it is intended according to the explanatory material. This is because the first limb is the unfavourable treatment. An insulting comment is isolation is not discrimination. It must be coupled with actual or intended unfavourable treatment in an area of public life. The climate change denying dill being so labelled is not facing unfavourable treatment per se - there must be more - denial of promotion or work opportunity say.

    My main concern is clause 19(2)- it reads like there is a subjective test. The better approach from a legal and policy perspective is an objective test. That is, the issue is not whether person A is offended etc, but whether a hypothetical reasonable person would be offended etc. That can be fixed in the post-consultation tweaking.

    The much vaunted “reversal of the onus of proof” is not that at all - and the political opportunists know it!

    But that leads to a deeper problem for Roxon: the politics has bolted on this one, courtesy of the relentless negativity and relentless ad hominum argument (Brandis has been astonishingly effective - and astonishingly dishonest - in his attack on, not the Bill, but its progenitor, Nicola Roxon.) But the factual distortions and logical fallacies count for little in this battle for the votes of bigots …

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