Gareth Parker is back on deck and blogging full steam ahead. That’s a relief, I feared for a minute that we might have lost one of the ozplogosphere’s leading young talents. Anyway, Gareth’s too young to have a midlife crisis. Despite his blogging sabbatical, however, Gareth’s readers managed to produce an extremely interesting comment box discussion on racial vilification and the Human Rights and Equal Opportunity Commission while he was away. I’ve blogged at some length previously on Australia’s federal racial vilification laws (Holocaust denial and freedom of speech and Rapping on race).
The most eloquent summary of why racial vilification laws are more democratically obnoxious than racial vilification itself comes from the US Supreme Court, which said (in R.A.V. v City of St. Paul 505 U.S. 377 (1992))
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. …
Justice Jackson described one of our society’s defining principles in words deserving of their frequent repetition: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” …
“To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.””
However, although prohibition of racial vilification, however hedged with safeguards for “reasonable” exercises of free speech, is simply unacceptable in a liberal democratic society, I don’t think the same can be said for HREOC’s broader anti-discrimination functions. Steve Edwards is a thoughtful young blogger who seems to have a bee in his bonnet about HREOC, and it seems to be a much more general grievance than just its racial vilification powers. This technicolour passage is a typical example:
That despicable cabal of neo-fascists, the Human Rights and Equal Opportunity Commission has shown its usual disdain for the public interest over the last two months. Never before has its greed, power lust and naked self-interest been on display, as this self-serving clique desperately clings to power despite the efforts of the Howard Government.
In fact, the Howard government recently appointed highly regarded Federal Court Justice John von Doussa as the new HREOC President, suggesting that at least some Ministers still regard HREOC as rather a more important institution than Steve does.
HREOC’s principal functions involve receiving, investigating and attempting to mediate complaints of discrimination based on race, gender, sexuality or disability, in areas ranging from employment and provision of goods, services and accommodation, to membership of sporting and social clubs. An institution that seeks to minimise the incidence of these sorts of discimination strikes me as entirely compatible with liberal democratic principles (indeed a quite important part of them), even though right wingers sometimes gripe about the enforced “political correctness” of such notions.
Steve Edwards seems to see HREOC as an illegitimate “kangaroo court”. Certainly HREOC also has a formal hearing function, but it can’t make formal, enforceable decisions because the High Court held in Brandy’s case (1995) that this would infringe the constitutional separation of powers doctrine (in that HREOC is not a federal court). HREOC determinations have no formal, binding legal effect, and can only be enforced by proceedings in the Federal Court, where a complaint must be sustained with the protection of all ordinary rules of evidence and court procedures.
Steve also seems to regard HREOC’s mediation or alternative dispute resolution procedures as suspect or illegitimate. However, the modern trend even in most court systems is to require litigants to attempt to settle their dispute by conciliation or mediation before embarking on a protracted, expensive courtroom battle. No compulsion is involved, and parties are free to insist on making the lawyers rich and having their day(s) in court if they want. The same is true of HREOC.
That isn’t to say that I’m completely uncritical of HREOC and its State-based anti-discrimination counterparts. Far from it. My experience is that a quite high proportion of anti-discrimination complaints are trivial in the extreme, emanating from chronic whingers who have nothing better to do than complain about every tiny problem in their sad and lonely lives. When I relieved as Director of Law and Policy at the Northern Territory Anti-Discrimination Commission for 6 months in 1999 (as a favour to then Commissioner Dawn Lawrie), I reduced the Commission’s caseload by something like 2/3 simply by making use of the powers that exist in all such legislation to summarily reject complaints that are frivolous, vexatious or lacking in substance. The Commissioner was happy, although the chronic whingers certainly weren’t. The problem with most anti-discrimination legislation is not the statutory framework itself, but the fact that such organisations tend to attract staff with “bleeding heart” mentalities. What they really need is more ruthless bastards like me!
Another problem with anti-discrimination legislation is that in one sense it attempts to punish “thought crime”. How do you prove that a person has acted in a particular way because of another’s race, gender or whatever, unless the perpetrator has been ill-advised enough to say so? The inevitable result is that such regimes usually only catch people who are too stupid to keep their mouths shut about why they’re refusing to rent you a flat (or whatever), or where the circumstantial evidence is overwhelming. The latter will usually only be the case where a practice is systemic and widespread. Individual “private” acts of discrimination usually won’t be provable unless the respondent says or writes something unwise.
The final problem relates to the fact that discrimination is central to all our lives. Every single conscious decision we make involves discrimination. I discriminated between the green undies and the red ones when I got dressed this morning, and so on. Anti-discrimination legislation involves a universal decision by Parliament that particular bases for discrimination in specified situations should be regarded as impermissible, because the legislators judge that the prohibited considerations are not sufficiently reasonably causally related to the class of decision being made. The problem is that sometimes that simply isn’t true. Sometimes racial, religious, gender and other factors may be undeniably relevant on any rational basis. To take a topical example, the great majority of terrorists threatening the western world are Muslims. On the other hand, the great majority of Muslims are not terrorists or even terrorist sympathisers, and it’s unfair to them as individuals to treat them as though they were. Ultimately a judgment has to be made as to where the line should be drawn between fairness to individuals and the safety of the community. And the more unsafe people feel, the more likely they are to ignore anti-discrimination laws or view them as obnoxious “politically correct” impositions.
The problem with that equation is that politicians shamelessly exploit and fan community fears through “law and order” campaigns which cause many to have an exaggerated perception of the extent of the threat. Of course, that’s precisely what John Howard did with the Tampa/children overboard exercise in the leadup to the last federal election. We clearly need bodies like HREOC to protect individual rights in a democratic society, as long as they’re run by moderate, experienced people like Justice von Doussa rather than politically correct authoritarians with ideological axes to grind.