Discriminating about discrimination

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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Gummo Trotsky
2022 years ago

Excellent post Ken.

Anecdote: a friend went through the HREOC process a few years ago, as a complainant in a case of discrimination on the basis of disability. In the end, she took the HREOC mediator’s very sensible advice about her boss: move on, get on with your life, and forget about the arsehole. I suspect that it may surprise the HREOC demonisers to hear that HREOC sometimes gives complainants advice like that.

Oz
Oz
2022 years ago

I can’t believe a sensible bloke (as you seem to be) would wear green or red undies. Don’t you have blue? Seriously, I sometimes wonder at the value of the anti-discrimination approach to employment for example. If an employer is dumb enough to refuse employment to a good person for racial, religious, sexist etc reasons, surely the market can sort that out? The business goes broke. Good people make a business better and that employer prospers. I don’t think there’s a need for government intervention in that process.

Robert
2022 years ago

Oz, if you think the market gives a shit whether a certain proprietor is racist, you’re badly mistaken.

bargarz
2022 years ago

Thanks Ken – very informative stuff.

Patrick
2022 years ago

Robert,

The market doesn’t “give a shit whether a certain proprietor is racist”. But the market really, really cares whether you have good staff. If proprieter A refuses to hire anyone except blue eyed blonde lesbian muslims and proprieter B hires whoever is best at the job, regardless of colour, creed or sexual preference, then A will have to get a lot of sub par staff in order to make the numbers. There will be a lot of incompetent and lazy gits who only got the job because they met the requirements. (See New York Times)

The market will then proceed to make B much richer than A.

HOWEVER if A was less particular, and only chose Blue Eyed Blondes and was prepared to compromise on the other factors, then he would have a much larger choice. He could probably find enough OK staff to remain in business. Sure B may have even better staff, the Indians and Chinese hetrosexuals being 30% more productive than A’s staff, but A will keep going for a long while yet.

And in a society where it isn’t just A, but also C,D,E,and F who share A’s predjudice, people without Blue Eyes and Blonde hair may find themselves out of work through no fault of their own.

Now in 20 years time, B will have grown to take 80% market share because of the consistantly better staff, and then all will be OK. But until then, life will be unfair.

I’m not sure where I am going with this.

Oz
Oz
2022 years ago

Robert,
I’ve only come back to this after a long day, Patrick has really said it. The employer who makes foolish employment decisions and employs only blue eyed trolley dollys, refusing to employ brown eyed marvels, will have a business which is less efficient than the competition and inevitably goes broke. Government doesn’t need to intervene in that because natural business selection will take care of it. That means less of my taxes have to be used for something that the market can look after. My taxes can then go to something more useful, or even better, the buggers can leave it in my pocket in the first place and I can make up my own mind what to do with it.

Gummo Trotsky
2022 years ago

Patrick,

Nowhere is my guess.

I doubt that the HREOC gets a lot of complaints about discrimination in the job selection process – whether it’s discrimination in favour of blue eyed blonde lesbian muslims or brown eyed dark-haired Freemasons. The most that a rejected job applicant gets told is that they were unsuccessful and, unless you have information on the other candidates, raising a discrimination complaint against an employer who has knocked you back is probably a waste of time.

Where HREOC can be effective is in the area of discrimination and other forms of harassment that take place within organisations: when for example, the most competent salesperson on the team notices that for some reason, the boss takes a week to sign off on her bonuses while it only takes him two minutes to rubber stamp the paper-work for her male colleagues. Then there are the various forms of petty bastardry that an imaginative arsehole can come up with to make the working day of one of their subordinates a misery.

In an ideal world, the effects of this kind of behaviour would show up in the company balance sheet, thanks to market forces. The trouble is, market forces ain’t that smart or informed: consumers of goods and services make their decisions on the basis of their own needs, and the quality on offer, not an organisation’s reputation for treating its employees right. If you can get away with treating employees like shit and still make a profit, the market is just going to let you get on with it. If it actually costs extra to treat employees fairly, then treating employees like shit actually gives you a competitive edge. So B may not capture that 80% market share and life goes on being unfair.

Which pretty much puts paid to Oz too: in most areas the market can’t deliver fairness, merely something approximating to economic efficiency. If you really want fairness, you’ll just have to resign yourself to being a little out of pocket on the tax front. Living in a civil society is a bitch sometimes ain’t it?

cs
cs
2022 years ago

Yes Ken, I guess it’s implicit, but the term really should be “anti-unfair-discrimination”.

Oz
Oz
2022 years ago

Hey, no-one “puts paid” to me Gummo … I follow my course with the security and precision of a sleepwalker.

Gummo Trotsky
2022 years ago

Tripping sleepwalkers is my favourite sport.

Robert
2022 years ago

Cheers, Gummo. Nice explanation.

Yobbo
Yobbo
2022 years ago

Gummo: Your argument assumes that the worker has no recourse other than government action in the case of unfair treatment. This is false.

The worker can always shop his/her labour around to another buyer, where they will be treated more fairly. Of course, the government tries to constrict these types of market forces by applying draconian regulations to hiring and firing of employees, effectively making it economically unfeasible for the market to work in favour of the employee.

It’s usually cheaper for the employer to continue to employ an average worker than to replace him with a better one.

Gummo Trotsky
2022 years ago

Yobbo,

Your attempted refutation makes the common economist’s mistake of abstracting away too much. The situation you describe may occur if the worker in question has specialist technical skills which are currently in high demand, or if general unemployment has fallen below the baseline frictional level. Thanks to Taylor, and a few others, the majority of jobs in modern economies are actually designed to be performed by an average worker, with a minimum degree of training., This remains the case in areas such as retail and clerical and administrative occupations.

This country has had an unemployment rate abovce 5% for the past two decades: currently for every job vacancy advertised there are 7 people looking for work, leaving factors such as skills out of account. In such an environment, your statement that a worker can always shop around for another job if he doesn’t like his boss is touchingly, if a little naively, optimistic.

mark
2022 years ago

And here I was thinking it was only Marxists who treated their political leanings like a religion…

Have faith in the market. The market giveth, and the market taketh away — it has its reasons, which are ineffable. Libertarians and economic rationalists! Capitalism is a meritocracy! Do not worry about fairness: the Market Will Provide.

Oz
Oz
2022 years ago

“Fairness” and “justice” are matters of perspective. What you think is a fair way to spend our taxes (which includes mine) may not be a fair thing to me. Good governments expand the range of private choices (ie the market) as much as possible, while a bad government taxes heavily and over-regulates (via such agencies as HREOC) in order to impose the ideas of a few people on the rest of the population. It’s not true to say or imply that markets are wild and undisciplined. A market transaction is entered into voluntarily and both parties profit – a win/win outcome is the result. The alternative is a command transaction, a win/lose outcome. I believe that in any given situation a large number of self-interested individuals without power over other people is infinitely more likely to come up with fair and just results than a very few self-interested politicians and bureaucrats with power over other people. No-one manages their affairs without making some mistakes, but at least each person is a better judge of his own affairs than the most diligent bureaucrat. And while markets sometimes fail, command economies and societies fail more often and more spectacularly. I think my point is that nothing delivers perfect outcomes, but the least-worst is to inform people’s discretion as much as possible, then leave them alone. It’s not a cop-out, it’s not ignorant, the facts are that it’s the best way to do it. Market economies are more prosperous and more fair and more pleasant to live in than command economies.

Gummo Trotsky
2022 years ago

Let’s take Oz’ last post and apply the ideas in another area. Last week on Melbourne radio, Jon Faine was making a meal over an unnamed roofing contractor who was taking deposits (of several hundred dollars) for work that he didn’t go on to do. In this particular market, tradesmen are in such short supply that it has become common practice for customers to put down a deposit on the job to secure future services.

Most of us would probably agreee that accepting the deposit then not doing the work is a shonky practice, and “unfair”. However this is a “matter of perspective”: the tradesman concerned appears to have a different perspective on the matter. he would also, I suspect, object to bureaucrats (Consumer Affairs), interfering with the way he does business.

And, of course, the bureaucratic interference in the market is unnecessary: through the circulation of information in the market place, consumers who lose money through transactions such as these (let’s not call them victims please – that implies a moral evaluation of the parties to the transaction, which may not be appropriate – all we can say objectively is that they entered into a transaction which did not return the value they expected – that is, they made a mistake) will inform others, who will become wary of dealing with firms who engage in these practices. In the long term, such firms will go bust, leaving the market dominated by “honest” operators. Once again, life is “unfair” in the short-term, but over the long term, the market sorts itself out.