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.
Guy Rundle is Crikey's correspondent-at-large. He was co-editor of Arena Magazine for 15 years, and has written four hit stage shows for Max Gillies, two musicals, numerous books and produced TV shows including Comedy Inc and Backberner.