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 It now seems that these provisions of the draft bill will be withdrawn and reformulated.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

Sun in the sky, you know how I feel… Why @MargaretSimons is wrong about RDA 18C #auspol

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.