You have to fight for your rights… The Human Rights and Anti-Discrimination Bill v the World #auspol
Following a ‘victory’ against a particularly controversial provision of the Human Rights and Anti-Discrimination Bill, News Ltd and various ‘think tank’ trolls are hell bent on destroying the entire thing.
The debate is deplorable, but took on a fascinating element last week when Michael Sexton, writing in The Australian, made a rather peculiar claim:
In recent weeks former High Court judge Ian Callinan and Victorian Attorney-General Robert Clark criticised the draft federal legislation that would have made unlawful a range of conduct that was considered by the so-called victim to be offensive or insulting. ABC chairman James Spigelman made similar criticisms late last year. It now seems that these provisions of the draft bill will be withdrawn and reformulated.
For some years, however, commentators including James Allan and Janet Albrechtsen have attacked existing state and federal laws that make publications unlawful on the basis of notions such as insult, ridicule or offensiveness. I have written a number of pieces myself on the problem of these concepts in legislation.But where is the response from those in favour of these laws? There hasn’t been one. Yet we know that there is no shortage of persons in influential positions who do favour these kinds of laws. The fact that there is such legislation on the statute books at the federal level and in most states and territories indicates that they were pushed through the parliamentary process by powerful lobby groups. [Source]
Powerful. Lobby. Groups.
To a certain extent, he is correct. There’s a bit of a gap between public discussion of legislation and the shadowy world of the influential people discussing the legislation. Similarly, however, there’s a gap between the public discussion of, say, climate change and the world of people who research and study climate change. There’s also a gap between the public discussion of health regulation and the underworld of people who actually manage health regulation. It turns out that the serious people having serious discussions about the Bill aren’t the megaphones trolling the public for circulation and link bait.
I bet you’re shocked, aren’t you?
Sometimes the public debate becomes so toxic that there’s no way for the shadowy figures to manage the processes effectively. See, for example, the Henry Tax Review, the MRRT, the first Carbon Tax Scheme which the Greens and the Coalition tanked, &c., &c. See also the provision in the Bill which was roundly attacked by a number of megaphones.
The provision was clause 19 of the draft bill:
19 When a person discriminates against another person, and related concepts
Discrimination by unfavourable treatment
(1) A person (the first person) discriminates against another person if the first person treats, or proposes to treat, the other person unfavourably because the other person has a particular protected attribute, or a particular combination of 2 or more protected attributes.
Note: This subsection has effect subject to section 21.
(2) To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:
(a) harassing the other person;
(b) other conduct that offends, insults or intimidates the other person.
It’s that last part which made commentators — from both sides of politics — freak right out. The concern was that there ought not be ‘a right not to be offended’ and that this would have an unacceptable ‘chilling’ effect on ‘freedom of speech’.
We’ll get to those claims individually in a moment. The first question is: did they read the draft Bill correctly?
Behold! Clause 23:
23 Exception for justifiable conduct
Protected attributes to which this exception applies
(1) The exception in this section applies in relation to all protected attributes.
Exception for justifiable conduct
(2) It is not unlawful for a person to discriminate against another person if the conduct constituting the discrimination is justifiable.
Clause 23 then outlines a whole host of reasons why you might insult or offend somebody. In other words, insulting or offending a person is only unlawful when it is not justifiable conduct. It’s not an attack on ‘freedom of speech’. It’s not a ‘chilling’ of free speech. It’s plucking the weeds at the edge of the garden where the hundred flowers are blooming.
As a conservative, this is exactly what I want in an anti-discrimination bill. I don’t want shock jocks and weirdoes taking pot shots at people for the sake of ratings. I don’t see why a marginalised person in our community should be forced to feel insulted or offended in order to protect the freedom of speech of the wealthy, powerful megaphones.
So all the people who whinged and complained about clause 19 were really speaking out in favour of unjustifiable behaviour. The freedom to offend and insult somebody unjustifiably is more important than promoting a civil society. Many of them wouldn’t know that they’d asserted this position because most of them got to clause 19, stopped, and wailed as loudly as they could.
A mature concept of the freedom of speech is not one where any person can say whatever they like. We already agree about this. I can’t defame you. I can’t say things which unjustifiably hurt your financial interest. Despite recognising that I can’t hurt your financial interests without a good reason, people do not recognise that I can’t hurt your feelings without a good reason. It is zany, weird logic that only persists because the same people crying about infringements on freedom of speech are the same people protecting their financial interests.
I can’t hurt you physically (there are laws restricting my Freedom to Strike; a dreadful chilling of my Freedom to Punch) but I can hurt you emotionally. It’s the same reasoning behind ‘Mental illness isn’t as real as a physical illness’. We refuse to consider them analogous.
But what it all should come down to is consent. When I want to interact with you, I should seek your consent or have a good reason to interact in a particular way without your consent. I should not be empowered to treat you however I want without regard for how you wish to be treated. Jesus got it wrong: don’t treat others as you wish to be treated — treat others as they wish to be treated, unless they’re being unreasonable.
This is what clause 23 does. It says: ‘People have a right to participate equally in society without feeling like they’re under attack. If you want to perform an act which would upset or offend another person, you should have a pretty good reason for doing that.’
But we can’t have this conversation with Michael Sexton or others in the public arena. Why? Because the public doesn’t want to be told that, really, it ought to behave and be nice to each other. The libertarian right and the anarchic left want the right to destroy civil society, to marginalise, and to be offensive. That’s because the libertarian right and the anarchic left are all but run by mirror-image man-children. It’s the same problem we have with Internet regulation: ‘But what if I really want something that I’m not allowed to have? Whaaaaaaaaaambulance!’
The draft Bill was great. Now the Attorney-General’s Department is trying to get around the public smear campaign. But News Ltd and the Think Tank Trolls can smell blood. They savaged a really excellent provision and now they’re seeking to tank the rest…
I usually put some song lyrics in the title. A few times now I’ve discussed issues where the fear of looking too glib has meant that I can’t go with that convention. This is another of those.
First things first, I do not understand why civilians can purchase any kind of gun. Even for farmers. When I was a kid, we had guns on the property. They were used twice: once to deal with a snake, another to deal (unsuccessfully) with a fox. What sort of moron uses a gun to deal with a snake? My father. As I grew up, only the weirdo kids at school were into guns. They were exactly the kind of people that you didn’t want anywhere near guns. ’Maaaate, we shot a defenseless creature. Awesome.’ Although I know significantly fewer farmers now that I’m an employable nerd, the ones that I do know don’t have guns. Or any interest in them. In conclusion, why are guns able to be purchased by individuals?
Second things second, the shooting at the primary school was horrible. I’m not usually the kind of person who gets emotionally affected by news reports, but this one made me feel ill. There was nary a minute between seeing the item flash up on my newsfeeds before people went immediately to their stock standard battle positions regarding the Second Amendment. What is it? Are we that eager to have opinions about things? Do we have such an incredible need to find somebody to blame (apart from the obvious person)? It was just utterly vulgar.
Yesterday’s atrocity is yet further evidence why Australia should not adopt a Bill of Rights.
In 1996, the Howard Government was able to pass legislation to severely restrict the sale of firearms. It was able to do this because there are very few restrictions on Parliament’s ability to pass legislation (provided there’s a head of power to do so).
When the drafters thought up the Second Amendment, they had no way of knowing that it would result in the school shooting. No way at all. When legislation is passed, it’s taken out of the author’s hands and into the legal ether of the court system. It takes on a life of its own. Some people might argue that this is a good thing: the Refugees Convention, for example, is doing things that the people who wrote it could not possibly have foreseen. Other people (like me) look at this with a great deal of suspicion. If the legislation is taking on a life of its own, how is it being controlled? In whose interest is the legal principle morphing?
For most laws, there’s an easy remedy to this problem: pass a new law! Intellectual property law is throwing up weird outcomes? Law reform! Contract law is throwing up weird outcomes? Law reform! Too many individual pieces of human rights legislation? Omnibus law reform!
It’s bits of legislation which are difficult to change which throw up huge problems. The Refugees Convention extends rights to asylum seekers tacitly. Most of our problems in the debate is a result of people being imprecise with terminology. If the Refugees Convention were easy to amend, it could be clarified to extend rights to asylum seekers. Instead, we know that if the Refugees Convention were proposed today, nobody would sign it. As a piece of legislation, it’s immutably stuck in the past.
Constitutional laws are similarly problematic. Take section 25 of the Constitution:
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
I still remember the ‘WTF?’ face I pulled when I first read that section. Holy crap, it looks horrible. Disqualifying races from voting? Oh, those racist white male drafters of the Constitution. What a bunch of racists.
It turns out that the person who proposed the section, Andrew Inglis Clark, was a progressive visionary. Section 25 was a way of motivating States to be non-discriminatory in their electoral laws. If the law of any State discriminates against a race in their electoral laws, the State will be penalised when it comes to representation in Parliament. It’s really clever.
If you read the YouMeUnity document, you don’t get that background. I guess ‘Be Informed’ just means ‘Here is the information we want you to have’. Informed referenda are, it seems, overrated.
Section 25 now looks like a weird bit of historical quirk. Do we still need this protection in the Constitution? On the other hand, do we gain anything by removing the protection? All interesting ideas that you won’t find explored on the websites of people interested in the proposed referendum.
Other sections of the Constitution have played out strangely and, indeed, completely contrary to what the drafter (or, especially, Sam Griffith) thought they would. Consider s51(xxxv):
conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State
Until the Engineers’ Case, nobody would have thought that this line would signal an end to implied intergovernmental immunities.
Sir Isaac Isaacs sure showed them.
Short of a referendum, Sir Isaac Isaacs breathing life into the conciliation and arbitration power will be the moment where the course of Australian law changed. Sure, he got it right on this occasion (screw the States) but this could have gone in an entirely different direction.
And that’s the problem with Constitutional rights. You don’t know now how the right will end up being deployed tomorrow. Having a well regulated militia for the security of the State probably sounded like an intuitively obvious assertion back in the 1700s. Today, we’re affected by another gun-related tragedy.
A little more bite and a little less bark… The #Expendables 2 is better than Dark Knight Rises #reviews
According to legend, there was a day when a man from a prominent family went down into his basement to find the collected works of Aristotle. He dusted them off and discovered that they had been damaged slightly. Undertaking to restore them, using only the tools available to him in the first century before the common era, Apellicon ensured that the works of one of humanity’s greatest ever philosophers would be available for future generations.
I wonder if this is how Richard Wenk and Sylvester Stallone felt while writing The Expendables 2? It’s a revival of everything that made early ’90s action films so wonderfully enjoyable. I’ve lost count of the number of recent action films which are desperately trying to make some terribly serious political point. In The Dark Knight Snoozes, for example, the sense of fun was eclipsed by the dreary clouds of socio-political commentary. You didn’t have that when I was a kid. The fun action films (rather than the pseudo-historical dramas) were about scrappy underdogs taking on people with diplomatic immunity. Or robots from the future. As a genre developed, we got too bogged down in relating it to the ‘real world’. Oh, it’s not believable to have a naked robot come back from the future to kill the mother of an activists. It has to be about our war with Islam or something. September 11 killed fun action films.
And, yet, here is The Expendables 2. A person waking up today from a twenty year coma would feel perfectly at home with it. When we’re eyeballs deep in movies based on comics, movies based on real wars, and movies based on ‘gritty’ indigestible things, The Expendables 2 is the renaissance of action films.
On the one hand, The Expendables 2 is a dumb action flick. People would (and should) go to the film expecting to see planes flown into mines and motorcycles used as anti-aircraft weapons. Heads explode. People explode. Assorted military vehicles explode. It’s all enormous fun. The part that I liked best about all the action scenes was that nobody thought using a bow and arrow would be better than using a gun.
On the other hand, The Expendables 2 is an exploration of how concepts of masculinity are still closely linked with our concept of justified punishment.
‘Oh, Mark,’ I hear you sigh from the future, ‘You think everything is a deeper exploration of power and state authority. How can this film — whose plot can only charitably be described as “Jean-Claude Van Damme fatally overdoses on cameo appearances” — be an exploration of power and state authority?’
To this, I would reply: ‘My good friend! Bear with me for a few minutes and see the world as I do. Let us share our experiences the same way we would share bread.’
Realising that I was going to tell you all about power and state authority regardless of whether you wanted to hear about it or not (I don’t have very many friends for exactly this reason), you would throw up your hands and allow me to continue, but only on the condition that I don’t make obscure references to books nobody is ever going to read.
Here we go.
The film begins like a racist joke. An Italian-American, an African-American, a Brit, a Swede, and a Anglo-American (with no dialogue) drive custom-built paramilitary vehicles through an impoverished, southeast Asian village shooting everything until it explodes. This battle — which includes the aforementioned motorcyle-as-aircraft-destroyer — sets the tone for the film. The Multicultural Pals invade an enclosed space (an arena, if you will) and shoot things.
No explanation is ever needed for why the protagonists are shooting things. Clearly, there is a crisis and it needs to be resolved. We know we’ve resolved the issue when the mortality rate cripples all local industries.
We discover that the Diversity Dirty Half Dozen are mercenaries. They have been hired to save a wealthy Chinese businessman. We don’t question whether the wealthy Chinese businessman is worth saving, or why so many villagers would be intent on keeping the wealthy Chinese businessman in custody. Those aren’t questions when we’re real men.
In this sense, the film is a power fantasy. People don’t worry about nuance or the legality of armed conflict when they’re thinking about how cool it would be to drive into ‘enemy’ (however defined) territory. All they’re thinking about it how many people they’d need to shoot before they reached their goal. I don’t play many army video games largely because they fall into this category of power fantasy: you shoot your way through until you reach your goal. Achievement unlocked.
Speaking of achievements unlocked, the cameos in this film come thick and fast. One of the most surprising is Ahhhrnold who is, quite frankly, fantastic. Ahhhrnold is the film’s messianic character. The beginning of the film is his resurrection, liberating him from the tortures and torments of his captors. Reborn, he immediately seeks out an enormous weapon (emasculating Old Spice Guy in the process) and then ascends into heaven. In times of need, Ahhhrnold descends from the heavens to save the protagonists — at one point undertaking a katabasis (recalling, of course, the story of Jesus’ descendit ad inferos in the Apostles’ Creed and the Gospel of Nicodemus) in order to free them from the belly of the Earth.
In this sense, the film represents two kinds of intervention: armed intercession and divine providence.
Missing from this picture, as shadowed earlier, is State intervention. There is no concept of the rule of law in this film.
The entree complete and a short palate cleanser with Charisma Carpenter, we begin the main course of the film. Bruce Willis appears and says: ‘I am extremely wealthy and you owe me money, Rambo. There is a jungle. In this jungle is an airplane. On the airplane is a safe. In the safe is a MacGuffin. I want the MacGuffin and you will do what I say because I am extremely wealthy and you are indebted to me.’
Jean-Claude Van Damme, on the other hand, wants the MacGuffin. Van Damme, like Willis, extremely wealthy.
As a viewer of the film, we have to determine quickly and efficiently whom we should support. Who is the rightful owner of the MacGuffin? On the one hand, Bruce Willis is wealthy but — equally validly, one might think — Jean-Claude Van Damme is wealthy. It’s difficult to choose.
Fortunately, Stallone and Wenk help the audience in its decision: Jean-Claude Van Damme delivers a short monologue about how much he loves Satan.
Where we have already established two mandates of authority — of arms and of heaven — Van Damme makes the perfect villain. He has a small army in his employ (just like Willis) and he is the avatar of Satan (the antithesis of Ahhhrnold). Where ordinary people would seek the decision of a competent authority, the paramilitary which didn’t pledge its allegiance to Satan relies on its individual moral authority to punish Van Damme for taking the MacGuffin (which they first stole from the airplane).
At its heart, the film is about the libertarian self-reliance to punish those who wrong us. Committing the author fallacy for a moment, this should not surprise us. Stallone is a Republican. Ahhrnold is a Republican. Chuck Norris is a Republican. Bruce Willis is Republican-sympathetic. And so on and so forth.
State authorities are mentioned twice. The first mention references a bureaucratic bungle regarding landing permits. The second mention notes that Uncle Sam shot a kid’s dog. This film glorifies rough music, and is nearly propaganda for the right to bear arms. The characters don’t look to others for justification; bootstraps!
Women are similarly dismissed in the film. Although one of the main characters is a woman (who is only allowed on the team after Stallone says: ‘I don’t work with women.’), anything she placed in the context of her gender. Consigned forever to sit at the kids’ table, she will be seen killing one or two combatants in between scenes of the male characters slaughtering insurgents wholesale. They come upon a village of women who shoot at them, mistaking them through wacky mishap for Jean-Claude’s crew. After two shots are fired, the main characters realise that women can’t shoot things and — to quote one of the characters — ‘the safest place would be directly in front of their guns’. Women don’t blow up things. Women don’t take matters into their own hands and sort them out with slaughter. Women don’t take arms against a sea of troubles and by opposing end them.
And the only non-combat woman is a cheating nag.
There is also, as mentioned earlier, a strong link between several of the male characters and their weapons. We hear several times about how much one character adores his knuckle-dusters. Old Spice Guy really loves his big gun and is reluctant to offer it in supplication to Ahhrnold Jesus (he really loves his big gun). Chuck Norris is a ‘lone wolf’ who sometimes ‘runs with the pack’. One male character jokingly refers to the others as ‘ladies’. There is a constant repetition of their masculinity and how important it is to their self image.
It’s also this machismo which relates to the earlier narrative about self-reliance and fighting your own battles. Their attacks on Jean-Claude Van Damme and everybody associated with him are not justified on legal grounds; they are justified because our heroes are right-thinking men who can fight their own fights. Through an expression of violence, Stallone and co. are asserting their ability to defend their inalienable rights to whatever it was in the safe.
In conclusion, if Jean-Claude Van Damme had neither delivered the ‘Satan is my co-pilot’ speech, he would have been indistinguishable from the guy paying the ‘good guys’. Although Jean-Claude Chun Li-ed a knife into some guy’s chest, Team Stallone had just finished executing a village of randoms four minutes earlier. It says something that we’re expected to care more about the one guy than we are about the hundreds of villagers. This should make us question the subtext beneath the film and the extent to which we are encouraged to consider their acts just simply because they’re so very manly.
But go see the film. It’s great. Best action film of 2012.
I’m still confused about the ’2′ bit in the name. Is it sort of like how the first season of Blackadder was called ‘Blackadder: Season 2‘?
In ABC’s The Drum yesterday, Margaret Simons continues to make very strange comments about section 18C of the Racial Discrimination Act. Admittedly, Simons is known for making strange comments in this space, having once championed a ‘Pub Test’ for newspaper content: if you can hear it opined in a pub, you should be able to read it on the front page of a newspaper.
I even agree with Abbott about the obnoxious nature of Section 18C of the Racial Discrimination Act, which was used against an Andrew Bolt column. The Bolt piece was a nasty and sloppy piece of commentary, but it should not have been illegal [sic]. [Source: Simons, 'Media regulation: Abbott speaks sense and nonsense', ABC The Drum]
Simons — along with people like Jonathan Holmes, Chris Berg, the IPA trolls, and Tony Abbott — are outraged at the idea of a ‘hurt feelings’ test. 18C makes it unlawful to be frank and fearless with your freedom of speech which, of course, must be identical to the freedom to offend. The assumption is that 18C of the Racial Discrimination Act is a way for people with thin skins and hypersensitivity to silence people who make them cry.
Utter, utter nonsense.
Let’s go back to the Act itself:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. [Source: Racial Discrimination Act 1975 (Cth) s18C]
So there are two prongs to an unlawful act under 18C. First, you perform an act in public which a reasonable person would think is likely to upset a person or a group. Second, the act is motivated by the ‘victim’s’ race or ethnicity, &c.
It’s not just a hurt feelings test. It’s a ‘don’t be a jerk’ test. Unlawful acts are only those which are reasonably likely to upset somebody and which are motivated by race/ethnicity.
But that’s not even the full story. Check out 18D:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. [Source: ibid. s18D]
Where 18C outlines what an unlawful act would be, 18D provides a defence for upsetting a person (or group of people) based on the colour of their skin. 18C and 18D together say, ‘People shouldn’t feel humiliated for the colour of their skin and, if somebody does humiliate them based on the colour of their skin, they should have a really good reason for doing so.’
There’s an important underlying philosophy to 18C and 18D. We are supposed to live in something like a ‘Republic of Reasons’. In order for me to do some harm to you, I need to have your permission or a really good reason to do it. For our social order to function, we rely on a problematic notion of consent to inform the extent to which one person interacts with another. This is what’s being reflected in 18C and 18D. People of all skin colours should be able to enjoy the fruits of civilisation without being subject to ridicule and humiliation. And if they are ridiculed or humiliated, there better be a damn good reason for it.
The real question here is not whether 18C goes too far. The question is whether it goes far enough.
Simons is correct when she says Abbott makes sense in places, she just incorrectly identifies those places. As I’m an atheist, it will probably shock readers to know which part I think he gets correct:
If it’s all right for David Marr to upset conservative Christians, why is it not all right for Bolt to upset activist Aborigines? [Source: Tony Abbott 'The job of government is to foster free speech, not to suppress it' The Australian]
The question (if questions can have a truth-value) is correct. Why is it all right for David Marr to upset conservative Christians? If we apply the same reasoning from before (about being in a Republic of Reasons) then there should be some good reason for Marr to ridicule or humiliate a section of society based on their religious beliefs. Indeed, that goes for a lot of the pop-atheist crowd who seem to think they’ve got some God-given right to ridicule and humiliate Christians just because they have different beliefs.
You could argue that people choose their race but don’t choose their religion. Not only is this naive (most people don’t choose their religion) but it also fails to grapple with the point. Why does choice matter? Why shouldn’t people be able to choose what they like without being ridiculed or humiliated for those choices? I’m on ‘Team Non-Biologically Determined’ when it comes to the question of sexuality, but I’m also on ‘Team If You’re Attracted to The Same Sex but Don’t Have the Gay Genes You Have Made An Awesome and Perfectly Legitimate Choice and Nobody Should Question Make You Feel Bad for That’. It’s not choice vs non-choice; it’s respect vs disrespect at play here. In a sense, opponents of 18C are asking us to respect the choice of people to humiliate and ridicule others based on their race. People who don’t want to extend 18C to religion are similarly asking us to respect the choice of people to humiliate and ridicule others based on differences of belief.
Which brings us back to Simons. Simons believes that we should have legislative room to be disrespectful to each other without the consent of the person being harmed. She couches this in the entitled and undergraduate language of ‘freedom of speech’. It is clear that, if we want to live in a Republic of Reasons, we need a more mature model of this freedom, especially when it affects the apparent right of others to engage in society unmolested.
It’s rare for somebody to begin a blog post with ‘I’m probably incorrect but I can’t work out why…’ and yet here we are, folks. Here is a bit of contract theory where I’m sure I must be wronger than wrong and yet I can’t work out why.
On Sunday, Kate Galloway wrote about the NSW Supreme Court’s decision in Ashton v Pratt. The details of the case are pretty much of the ‘Lifestyles of the Rich and the Famous’ kind. The story goes: Richard Pratt is fabulously wealthy and travels about the place sans his wife. He meets an escort, Ms Ashton, and — in a supposed exchange read into the decision which definitely needs to be poorly acted by Home and Away starlets — says to her: ‘If you stop being an escort and “concentrate on my needs and wants” (mistress), I will give you a swag of cash.’
The best line of that exchange: ‘after all, I am Richard Pratt, one of the richest men in Australia’.
The court found:
Ms Ashton’s case in contract fails – although the terms of those arrangements were not too uncertain and incomplete to amount to a contract – first because Mr Pratt and Ms Ashton did not intend to enter into binding and enforceable legal relations, and secondly because public policy denies enforceability to any such contract as alleged. [At 88]
The second part of this decision is what interested Galloway:
Although the Court found there were insufficient indicia of a contract (ie the arrangement lacked intention to create legal relations) Brereton J nonetheless turned his mind to whether such an arrangement could theoretically be enforceable, or whether it would be against public policy. The public policy in question was rendering void and illegal, contracts that are ‘sexually immoral and/or prejudicial to the status of marriage’. [Source: Galloway, 'Sex & Immorality: The Court's Take'
Public policy is a weird bit of contract law. It basically says that there are some contracts which would be repugnant to community standards to enforce. Ordinarily, public policy problems shouldn't arise because people don't really make a habit of entering into contracts which offend standards of decency.
It's such a weird area of contacts that I had to go back to the textbooks to make sure I had all my ducks in a row. There are some great quotes about public policy because the idea of courts being able to determine whether a contract was, when it gets down to it, immoral spooked a lot of judges. In an 1824 English case, Richardson v Mellish, Burrough J calls public policy 'a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy takes away the autonomy of people to enter into agreements which they find accord with their moral values and surrenders that decision to the courts. Over time, judges became so spooked by the idea that they halted its development in common law. In another English case, Janson v Driefontein Consolidated Mines, Halsbury LC rejected the view that 'any court can invent a new head of public policy.' This reasoning led to a decision by an Australian judge, Windeyer J, in Brooks v Burns Philp Trustee Co Ltd:
The House of Lords has said that it is not for courts to create new heads of public policy. [...] The proposition continues to excite controversy among those who doubt whether the fertility of courts in the 19th century has now given way to sterility, resulting from senility, in the common law.’ [Source: Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432; quoted in Paterson, et al. Contract: Cases and Materials]
And yet here we are in 2012 with a case which shows public policy considerations are alive and well. In this instance, the contract was considered unenforceable because it was sexually immoral.
Galloway argues that prohibiting contracts which are deemed sexually immoral by the courts is problematic.
A feminist reading of this case might identify that the Court framed its inquiry around the ‘social’ and sexual (ie private) nature of the arrangement. In positioning Ms Ashton’s claim as private, it existed outside the law. This reveals how contract law privileges the so-called objective, rational, autonomous public face of the market place – for it is these arrangements that will be enforced by the law while others within the domestic or social sphere will not. [Source: Galloway, op. cit.]
But I’m a bit worried by this reasoning. There’s already a shaky understanding in contract law that courts don’t like to mess about in family matters: Balfour v Balfour ran with this idea that, because a contract is formed when the parties intend to create a legally enforceable agreement, agreements between spouses (and, by extension, family members) weren’t obviously contracts. If I say to my brother, ‘Hey, Ian. You can crash on my floor when you visit’, I don’t expect him to sue me if, for whatever reason, it turns out that him crashing on my floor is impractical. When I go about my social interactions with my family, I don’t think that it’s obvious I’m creating all kinds of legal obligations. I might create moral obligations. I might be considered to be a terrible person if I let my brother down by forcing him to stay at one of the many Canberran hotels when he comes to visit. But I don’t think I’m a legally culpable person.
At the heart of this, I don’t like the idea of my life being reduced to legal interactions (in the same way, I worry when libertarians tell me that my life is merely a collection of economic interactions).
In The Hidden Gender of Law, Graycar and Morgan cite Atkin LJ: ‘Each house is a domain into which the King’s writ does not seek to run, and to which his officers do not seek to be admitted.’
But people disagree with this idea.
Again in Graycar and Morgan:
[T]raditional feminist arguments raise concerns about the private sphere as notionally unregulated, for example, in suggestions that ‘the legal system’ has traditionally failed to respond to violence against women in their homes. Not only has this approach meant an over-reliance on an analytical tool that fails to encompass the experiences of many women [...] but Lacey suggests that some feminist critiques imply that privacy ‘has nothing to recommend it to women.’ [Source: Graycar and Morgan, The Hidden Gender of Law, p 20]
Unpacking the gist of the argument: if there’s an area of social interaction ungoverned by law, then there’s an area of social interaction where the socially disempowered have a means of redress for wrongs. This seems to be where Galloway’s argument is heading here:
The law reveals its gendered nature in presuming that a person will delineate their life in a work/home dichotomy. In contrast, in the private sphere a person might see work and family as mutually defining. This would however fall outside the consideration of the law. In this way, the processes of contract law subtly privilege that which inhabits the public domain to the exclusion of inhabits the private. [Source: Galloway, op. cit.]
As I’ve mentioned at length elsewhere, I don’t identify as a feminist. Although I can see Galloway’s point — that people in the private sphere might have a need to seek legal remedies to problems, and that the law does not empower people in the private sphere to overcome differences in power — I’m still not sure legalism should creep into private interactions. Then again, I might just be intuiting this because I’m in a privileged position as a conservative white male.
But more to the point, are we sure we want to argue that contracts which establish ‘mistress contracts’ should be enforceable in the courts?
In this example, Ms Ashton would have benefited from the contract being enforced. She was the mistress and held up her end of the contract; therefore, Mr Pratt’s estate should fulfil its end.
But what if Ms Ashton did not benefit from the contract? The agreement between Ashton and Pratt didn’t include an exclusivity arrangement, but it might have. The agreement might have been: ‘I am Richard Pratt, one of the richest men in Australia, and I want you, Ms Ashton, to be my mistress. When I’m in Sydney, you will provide me with sex. You won’t have any other partners beside me. In return for sex and exclusivity, I will give you a swag of cash.’ It would be strange if Pratt tried to have the contract enforced if Ms Ashton had extra-extra-marital affairs. It feels like it would offend basic norms of morality for the court to enforce the contract.
Because the contract seems to favour Ms Ashton in the original example, we might be tempted to think that the court is imposing its ye olde morality into contract law. But I think we would be appalled if the contract didn’t favour Ms Ashton and Pratt’s estate were trying to have it enforced by the courts. I think it’s the same revulsion we feel when people try to restrict access to divorce to permit ‘at fault’ divorces only: it’s not really the court’s role to get involved in people’s sex life. These ‘mistress contracts’ invite the court in for a ménage a trois of contractual bondage.
I quite like that last sentence.
I feel as though something is wrong with my reasoning. Am I relying too heavily on my intuition of the private as a justifiably unregulated space? Am I too quick to think that mistress contracts are repugnant, and that more people would agree with me if the contract disadvantaged the woman?
If nothing else, am I correct that the ’fertility of courts has now given way to sterility, resulting from senility, in the common law’ quote is really awesome?
It looks like I’m going to write an entry criticising every piece in the book… Oh dear. At some point, I should get around to Eggs_Maledict’s request to explain what I like about conservatism. Every time I sit to write that entry, I get a bit lost and need to reframe the argument. Look forward to it.
In the mean time, we have ‘Religion and the Law in Australia’, written by Clarence Wright. In fairness to this guy, he hasn’t made any beefed up claims about himself (like the other two authors) and seems to have been included in this anthology by virtue of being friends with the editor (they’re both Brisbane atheists). Later, the anthology will include Tim Minchin’s poem about a dinner party, so I think we’ve given up on considering this anthology to have much in the way of intellectual merit.
But let’s give Wright’s article a chance to shine…
He starts off with Thomas Aquinas’ account of ‘natural law‘ but mangles a bit to get to his conclusion:
This religious and unsophisticated ideal of just law resulting from ‘God’s’ direction, through his Holy Text, the Bible, no longer serves a significant influence on jurisprudence. [Source: Clarence Wright, 'Religion and the law in Australia']
Phew. If we accept Wright’s reading of Aquinas (which we shouldn’t, but whatever), then we atheists have nothing to worry about. This religious ideal is no longer a significant influence! Hooray and hoorah. Victory to us.
Wait… why is his conclusion on the second page of his article?
Damn. It was a trap.
I intend here to examine the record of legal development in Australia to better understand how religion has influenced our society. [Ibid.]
So all that waffle about Aquinas was just showing off? Okay…
In commencing the main body of his article, Wright sets the tone with his opening line:
The first laws of Australia were developed by the first Australians, who arrived on this continent more than 40,000 years ago (some 34,000 years before ‘God’ created the universe). [Ibid.]
Hurr hurr hurr. It’s funny because Christians believe that God created the universe 6,000 years ago. Hurr hurr. Like all of them. Go ask a Christian when they think that the universe was created and they’ll all say ’6,000 years ago, in October’. That’s because they’re dumb. Hurr hurr.
Do you know what’s really dumb? Citing Jared Diamond’s Guns, Germs and Steel as the source for that factoid. You’d have to be a complete moron to do that, wouldn’t you? Lo and behold, the footnote (number 6) links the 6,000 year old universe thing to Diamond’s Guns, Germs and Steel.
I might be being uncharitable here. It might be that the footnote is in the wrong place (mostly because I don’t remember Diamond mentioning the 6,000 year old universe thing) in which case Wright is just stupid for making the unnecessary comment and stuffing up his footnotes, but whatever.
There’s a short passage on the application of Blackstone’s Commentaries to Australia (terra nullius) and the tenuous link to religious justification for spreading Christianity is vaguely mentioned. Nothing meaty is really discussed or analysed.
Wright jumps immediately to the writing of the Constitution but swerves after introducing the scene to discuss the U.S. Constitution. After name dropping Sam Harris and Thomas Jefferson, he gets back to the above-mentioned point of the article: Australian law and religion. Section 116 of the Australian Constitution looks an awful lot like Article VI, Section 3 of the U.S. Constitution. Woooooooo.
Wright jumps from there to a confusing account of Adelaide Company of Jehovah’s Witnesses vs the Commonwealth. He drops a few quotes hither and thither before jumping to an American case, then another Australian case. The point?
Thus, the Commonwealth continues to provide funding to the states, which eventually migrates to the religious education of children throughout Australia. [Ibid.]
Oh… And this a bad thing, right? You can tell that Wright thinks it’s bad that public funding goes to religious schools in Australia, but he never bothers to show why (nor did Max Wallace’s article). It’s just assumed that it’s bad and this unexamined assumption prevents any meaningful analysis of religion’s influence in Australia.
Bafflingly, Wright ‘turn[s] the focus [...] to areas of remaining inequity in our legal system that relate to religious organisations.’ This is, remember, an essay ‘examin[ing] the record of legal development in Australia to better understand how religion has influenced our society’. Now it’s outlining inequity in our legal system that relate to religious organisations. Are these the same thing? Does religious influence ipso facto mean inequality in the legal system? Who knows? Certainly not Wright.
[I]n litigation, the financial resources to retain high-quality legal representation that quickly deals with legal issues are highly preferable, if not necessary, for success.
Religious organisations have significant resources [...]. This degree of wealth and power of religious organisations is often applied for the purpose of retaining top legal teams to appear in courts on matters which are important to their faith. [Ibid.]
Do you know who else has significant resources? Companies. That degree of wealth and power of companies is often applied for the purpose of retaining top legal teams to appear in courts on matters which are important to them. Do you know who else has significant resources? Governments. That degree of wealth and power of governments is often applied for the purpose of retaining top legal teams to appear in courts on matters which are important to them. Do you know who else has significant resources…
It’s not like the religious organisations are doing something wicked and terrible. They, like everybody else, are able to defend themselves in court using whatever resources they have to do so. It’s terrible that people can buy legal services like this but this isn’t due to the influence of religion in Australian law. This is due to capitalism in Australian law.
Wright then outlines a case where the Exclusive Brethren won a Family Court case against an unrepresented father (‘we should be careful not to be critical of an unrepresented father’s efforts against a seasoned and experienced legal team’, says Wright). Surprise, surprise. People who hire lawyers are more likely to win their lawsuits than people who represent themselves (especially in Family Court. Holy hell, what was the guy thinking?).
Wright concludes the passage with:
While it would be tempting to criticise Justice Brown’s decision, that decision is the correct application of the relevant law. [Ibid.]
Hang on… So his complaint is that terrible things happen when the law is applied correctly because religious institutions can pay for lawyers? Again, the passage has so many unexamined assumptions and no real analysis.
Wright then moves quickly on to another case which makes utterly no sense. In a nutshell, an unmarried woman wanted IVF and successfully claimed that the Victorian law which prevented her from having IVF was inconsistent with the Commonwealth law. A group of Bishops didn’t like this decision and hired some lawyers. The High Court dismissed the submissions from the Bishops.
Hang on… What is this passage supposed to show?
Thus, the role of social conscience of a nation as it relates to an individual’s dispute does not fall upon the Church. [Ibid.]
Oh… Good? Hang on… Wasn’t this an essay about the inequity of our legal system in regard to religion? Or was this an essay about the influence of religion on Australian law? Either way, how does this relate to either of those aims?
It doesn’t help that Wright often gets confused. Half way through discussing the IVF case, Wright says:
Dempsey discusses various submissions regarding this position [...]. Dempsey would disagree [Ibid.]
Who is this mysterious Dempsey and why do we care if he agrees? Only Clarence Wright knows. The footnotes appear to link to the author of a journal article.
In his conclusion, Wright goes back to mentioning Aquinas for no apparent reason. Then he hops on to a calling of arms for atheists:
We should be prepared to criticise religious groups exercising the law [by using their wealth], whether that is democratically — through our electoral rights and contact with elected representatives — or through public support or criticism of judgements made through our courts. [Ibid.]
So we should get politicians to lean on judges or we should criticise judges ourselves?
It just doesn’t make any sense…
In case it isn’t already obvious, don’t buy this book (The Australian Book of Atheism). It’s utterly dreadful.
Okay, I haven’t updated this in a while because I’ve been fairly solidly buried in work, study, and play. I am procrastinating and, thus, we get an update.
There is a legal principle in common law systems that people — generally and normally — behave reasonably. The idea is that every person is rational — or ought to be rational — and that they behave in a generally rational way. Those people include legislators and, when they write up statutes, it’s presumed that they did so in a reasonable way. Those people also include parties to contracts and, when they form contracts, it’s presumed that they did so in a reasonable way. Those people also include people who are criminals and, when they perform some criminal acts (the ones involving mens rea), it is presumed that they knew that they were performing some act which a rational person would condemn.
It’s called the objective test and it posits some hypothetical person — ‘the man on the Clapham omnibus/Bondi tram’ — and asks ‘What would he think?’
What’s curious about this reasonable person is that he is invariably white, male, and educated. This is due to a wonderful feature of our thinking called ‘normativity’. It’s where we consider the default — ‘normal’ — position to be that which is most dominant in our social framework. In common law countries, this is invariably white guys. So the default perspective is that of a member of the hegemony.
In a lot of cases, this doesn’t cause too much hassle. It’s not unreasonable to think that in the vast majority of instances, what I consider reasonable and what a member of a minority considers reasonable will overlap considerably. But what about instances where they don’t overlap?
Consider one of the historically interesting aspects of contract law: consensus ad idem. Literally, ‘agreement about the same’. It’s often parsed as the bit of a contract which involves a meeting of the minds. The idea is that a contract is formed by voluntarily agreeing to be bound by a promise.
If it later seems that there’s disagreement about the terms of a contract, instead of extending consensus ad idem to its logical conclusion — that there was no consensus because there is clearly disagreement — Australian courts appeal to the man on the Bondi tram to explain what the terms mean. No longer is the contract a voluntary assumption of responsibility, but it’s an obligation placed upon you by acting in a way which an hypothetical third person would interpret contract-forming.
And that’s weird.