Takes to the sky like a bird in flight… Are ‘religious’ and ‘human’ rights in conflict?

Inalienable human rights are the phlogiston of political science.  Sensible people who reject all kinds of superstition, pseudo-science, and quackery happily jump on board the rights train.  Libertarians are the worst at it, to be frank.  They will look at you with a straight face while they deny every conception of community that isn’t ontologically grounded in individuals (lulz) and then will happily assert that individuals have rights that exist prior to the formation of the State and which must, as a matter of fact, be respected.

Hilarious.

There are plenty of psychological experiments where you give people contradictory stimuli (usually visual and sensual) and then watch them squirm as their brains try to rationalise what’s going on.  Here’s one with visual and sound stimuli (the McGurk effect).

It’s rare that you see somebody caught in one of these conflicts as a result of their political philosophy but, when you do, it is a delight.  On The Guardian, Deborah Orr finds herself stuck in a bizarre conflict between ‘human’ rights and ‘religious’ rights.

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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 It now seems that these provisions of the draft bill will be withdrawn and reformulated.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…

The rock cried out, ‘I can’t hide you’… A Skeptic’s Response to #HumanRightsDay #auspol #discrimination

I know it.  You know it.  As a conservative, it’s almost expected of me to say it.  I’d feel bad about saying it, but it undoubtedly true.

Human Rights Day is an excuse for lefties to pretend that their assertions are objective facts.

The past two years have taught us a little bit about the word ‘Rights’ and how it’s wielded like a weapon against heretics.  If libertarians ran the Australian Human Rights Commission, you’d see greater emphasis on property rights.  The true champions these past two years are those martyrs who suffered for freedoms against the Nanny State and other forms of regulation.  Andrew Bolt was persecuted by the draconian and illiberal Racial Discrimination Act, yet remained resolute about the importance of freedom of speech.  Tim Wilson championed the intellectual property rights of tobacco companies against acquisition by a non-acquiring State.

And so on and so forth.

We are correct to think we’re better off without those lunatics in charge of the asylum, yet we would be incorrect not to spot the problems with the current arrangements.  The Sydney Peace Foundation, for example, gave their highest award to Julian Assange — a person who’s made it his life quest to make diplomacy more difficult and who refuses to face sexual assault charges.  Ron Merkel, the lawyer for the plaintiffs in the case against Andrew Bolt, won the 2011 Human Rights Medal — the Human Rights Law Award went to the legal team involved in the ‘Malaysia Solution’ court case.  And Phil Lynch of the Human Rights Law Centre lists increased deference to the United Nations as a success of the human rights movement.

It might amuse a few of my readers that the Department of Immigration and Citizenship is a major sponsor of the awards…

It is impossible to detach the idea of celebrating human rights from ideology.  The way we talk about rights necessarily imports our assumptions and intuitions.  The libertarians import ideas about the individual; the progressives import Rawlsian ideas about protecting the disadvantaged.

But unless you share those assumptions, no conversation is possible.

There’s a strong parallel between this conversation and the conversation about religion in politics.  Howard Schweber made a great point in a lecture about the Republic of Reason: we can have a common society with laws and enforced norms because we don’t have private facts taking on authoritative force.  Religious facts that weren’t shared with others were unreasonable and thus crippled the Republic of Reason.

But he then went on to import the idea of rights into his theories about how the State should work…

As a person who is completely atheistic when it comes to rights, this idea espoused by both groups mentioned above is entirely alien to me.  There isn’t a common ground for the discussion to take place when one group thinks that these magical pixie-dust constructs called ‘rights’ are inalienable to a person and entail particular behaviours towards that person.  Thus we get to the position of turning our assertions into objective facts.  ‘No, no,’ I’m told, ‘Rights really do exist and the government is bad for doing everything that it’s doing because of human rights.  Check out this awards ceremony.  Would this awards ceremony exist if rights didn’t exist?’

When Australia Federated, the lack of a Bill of Rights was a sign of how modern and progressive our Constitution was.  I still hold that view.  We have a system of parliamentary sovereignty where the protection of human rights is the job of parliament — not the job of the courts.  Importantly, under the current system, both the libertarians and the progressives are on an equal playing field: they have to convince people to vote for representatives who will pass laws in their favour.  If progressives feel that not enough has been achieved, then they are admitting that they haven’t done enough to convince ordinary Australians to get on the rights bandwagon.

Human Rights Day is a celebration for the other side of politics.  It gives them a platform to get some media exposure to test how interested the broader public is in their campaign to normalise their particular view of rights.  But the public mood on issues such as asylum seeker policy suggests the the human rights movement is suffering the excesses of ivory tower syndrome (and, as an inhabitant of my own personal ivory tower, I’m certainly not one to throw stones).  Perhaps naming a swimmer as a human rights hero (I didn’t quite understand the link) was an attempt to bridge the gap.

The concept of human rights had done enormous good in the world, but the conversation isn’t going to go anywhere while advocates refuse to engage with dissenters.

I like to wait to see how things turn out… but we had the better constitution

There were lots of strange claims surrounding the recent report into whether we should have a Bill of Rights in Australia.  The strangest of these were those which compared us unfavourably to the United States.  In the U.S., it was claimed, the citizens enjoy the benefits of a vast array of rights which are completely and totally denied to Australians.

It is sad that we seem to be so keenly aware of the United States’ Bill of Rights and yet so ignorant of history.  There are such excellent examples of how the Australian system afforded much better protection of our rights than were ever recognised in the U.S.

In the 1950s, for example, the Menzies Government passed legislation to outlaw the Communist Party of Australia.  In quite an amazing judgement, the High Court of Australia declared that the provisions of the Communist Party Dissolution Act 1950 were invalid in whole.  Menzies tried to get around this with a referendum but failed.

Compare this with a similar situation in the United States.  The Communist Control Act 1954 was passed and several other Acts were updated to provide more legitimacy for what had become McCarthyism.  Despite several cases going before the Supreme Court, SCOTUS never protected the rights of citizens to hold pro-Communist/Socialist beliefs.

The U.S. system works by defining rights — despite handwaving in the 9th the fact that it’s not limiting the number of rights apparently held by citizens.  In Australia, we don’t.  We have a judicial system which uses a commonsensical attitude which prevents legislatures from ‘gaming the rules’.  As McCarthyism demonstrated, the same was not true in the U.S.  Why, then, we would idolise the Bill of Rights completely baffles me.

I’ve heard a rumour from Ground Control. Oh no, don’t say it’s true… And ‘dog whistles’ aren’t just a right wing thing

Australian Policy Online is usually rather a good read.  Susan Ryan‘s recent article on the Australian Charter of Rights is instead notable for not being rather a good read.

Fortunately, the problem is easy to explain.

1. Ryan’s argument is that The Australian contains poor opinion pieces.

2. Just about everybody who can read agrees.

C. We should have a Charter of Rights in Australia.

Unfortunately, the conclusion doesn’t follow in any meaningful sense from the premisses.  The thing with these sorts of debate is that logic no longer matters.  You either agree that vulnerable people need protection, or you agree with everything that The Australian says.  Somehow — as if by magic — ‘vulnerable people need protection’ turns into ‘Australia must have a Charter of Rights’.  Basically, something needs to be done, this is something, therefore this needs to be done.

The problem with a Charter of Rights is that it doesn’t extend enough protection to the vulnerable and provides an opportunity for them to be screwed over instead.  Consider, for example, how frequently the Bill of Rights in the U.S. has been hijacked for the interests of the powerful (gun lobbyists, corporations, &c.).

Why do we want to give the wealthy more opportunity to secure legal privileges? Continue reading