The debate is deplorable, but took on a fascinating element last week when Michael Sexton, writing in The Australian, made a rather peculiar claim:
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…