Monday, November 12, 2012

Anti-Discrimination Change Requires More Scrutiny

(See also later article An Open Letter to Brian Wightman)


Advance Summary:

1. A proposed amendment to Section 17 of the Tasmanian Anti-Discrimination Act, designed to address bullying, is flawed by appearing to carry unintended consequences for political speech and lacking appropriate, explicit and prominently-debated exemptions in this area.

2. The proposed amendment should not be passed by either House of Parliament in its present form.

Skimming the Sunday Tasmanian, which I buy mainly for the TV guide, I came across a piece on pp. 74-5 (sigh) by Simon Breheny. (This is now online here.) The piece argued that proposed changes to the Anti-Discrimination Act will curtail free speech in Tasmania, mainly by greatly extending the grounds on which it is an offense to "offend, humiliate, intimidate, insult or ridicule" someone. 

This piece had many signs of something I should not expect to take too seriously.  It was headlined "Attacks on free speech" (the sort of headline that usually indicates simplistic and invalid tabloid melodrama.)  It was written by a law-student "lobbyist" for the Institute of Public Affairs (a self-described "free-market think-tank" with a dubious historic form guide), and worst of all it tried to curry sympathy for Andrew Bolt.

No Sympathy For The Drivel

Bolt, in a well known case (link to full judgement), was found to have breached the Commonwealth Racial Discrimination Act 1975 by making offensive racial comments about what the court called "fair-skinned Aboriginal people".  The Commonwealth Racial Discrimination Act includes protections to cover comments made:

"reasonably and in good faith""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 " in making or publishing:[..]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."

The judgement, long but well worth a detailed look anyone interested, basically found that the legal problem was not what Bolt had said but with the way in which he had said it.  Bolt's pieces on a very sensitive issue were found to contain "errors of fact, distortions of the truth and inflammatory and provocative language."  That's putting it mildly; a full reading of the judgement (eg sections 394-417) shows that Bolt's handling of the facts supposed to underlie his claims was just a trainwreck.  Had he done his research thoroughly and then considered his findings carefully, there would have been no problem with him presenting such conclusions.  Except then, of course, he would never have drawn them.

And for that reason I have no sympathy with Andrew Bolt on that one at all.  I am not one of those who believes that freedom of speech should extend to the right to say whatever you like, however offensive or extreme, without any care for the facts of the matter.  I don't see Bolt as a martyr for any form of free speech worth defending, and I think he's lucky he was only ticked-off under the Racial Discrimination Act rather than being sued for defamation by his targets.  Tony Abbott's populist proposal to repeal the law that told Bolt to do his homework is just more evidence that what should really be repealed is Abbott's leadership.

Great Expectations

So, with a negative attitude towards the Breheny piece well established, I expected that when I read up about the matter I would quickly find out it was all another right-wing beat-up.  Knowing that laws of this kind tend to carry appropriate exemptions for free speech, I expected I would find them easily enough and on that basis determine that the Breheny article was just a load of hooey.

This, however, was just not the case at all.  And while Breheny's arguments about Andrew Bolt are twaddle and his political company even more dubious than mine, I think that there is truth in what he says. Or if he's wrong, the Government has at least communicated the changes it proposes poorly.

To explain why, it is necessary to refer to the detail of the proposed amendments.  The new bill can be downloaded here (in PDF format) and the law it would amend can be found here .

The Current Framework

The current Anti-Discrimination Act addresses discrimination on the grounds of a long list of attributes in section 16.  There is a long list of exemptions for circumstances in which discrimination is allowed.  For instance, there is an exemption that allows sporting bodies to discriminate on the grounds of age by breaking entrants into age groups.

Here is the full list of attributes that are presently covered:
(a) race;
(b) age;
(c) sexual orientation;
(d) lawful sexual activity;
(e) gender;
(f) marital status;
(fa) relationship status;
(g) pregnancy;
(h) breastfeeding;
(i) parental status;
(j) family responsibilities;
(k) disability;
(l) industrial activity;
(m) political belief or affiliation;
(n) political activity;
(o) religious belief or affiliation;
(p) religious activity;
(q) irrelevant criminal record;
(r) irrelevant medical record;
(s) association with a person who has, or is believed to have, any of these attributes.
Section 17, entitled "Prohibition of certain conduct and sexual harassment", currently holds partly that:

"(1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (f), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed."

...meaning that  offensive conduct towards a person on the grounds of their gender, marital or relationship status, pregnancy, breastfeeding, parental status or family responsibility is not on.

Section 19 deals with incitement of hatred and requires that:

"A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of:
(a) the race of the person or any member of the group; or
(b) any disability of the person or any member of the group; or
(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or
(d) the religious belief or affiliation or religious activity of the person or any member of the group."
The critical part here is that Section 19 carries an exemption, which is found in Section 55:

"The provisions of section 19 do not apply if the person's conduct is –
(a) a fair report of a public act; or
(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or
(c) a public act done in good faith for –
(i) academic, artistic, scientific or research purposes; or
(ii) any purpose in the public interest."
This sort of exemption would have protected Andrew Bolt had his work been even remotely careful.  But it does not apply to Section 17.

The Proposed Changes

The proposed changes do many things beyond the issue of concern in Breheny's article, but here is the one that matters.  It is proposed that Section 17 be altered to apply to all the items in section 16, not just the ones it is currently limited to.  (Section 16 would also be expanded to include "gender identity" and "intersex".)

So, if the change is accepted, the law will hold that a person "must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person" on grounds that include:

(m) political belief or affiliation;
(n) political activity;
(o) religious belief or affiliation;
(p) religious activity;

(I have listed these as the most contentious examples.)

Now, perhaps this would be OK if it was covered by similar, but hopefully much looser, exemptions to those applying for Section 19.  Even a simple extension of the existing section 55 to cover section 17 as well as 19 would be a start.  So I looked all the way through the full text of the proposed amendments for the appropriate exemption, carefully, repeatedly ...

...and didn't find it.

The obligatory caution applies that I am not a lawyer. But in the course of editing a magazine, moderating three internet forums, running various chess associations and so on (add now running my own website!) I've very often needed to wade through anti-discrimination laws in search of a quick guide as to what they do or don't prohibit. 

And it's my view that a law that appears to create such broad prohibitions, apparently without appropriate exemptions, is fatally flawed (even if it turns out that those exemptions are in some way present or implied, or would be read in by a court based on the law's intended purpose.)  If the exemptions really are there, then law of this kind needs to be so explicit and clear that a person who has a need to apply it frequently, can get a fair idea of what it means without needing to run off to the ADC or a lawyer for an opinion. 

I therefore think the State Government should take this one back to the panel-beaters, and bring it back when it is fixed and when everyone can see in clear plain English that it is fixed and that sound protections for reasonable or even rather scruffy political speech have been included.  Or failing that, perhaps the Government could eat some humble pie and accept a Liberal amendment on the matter. 

Why Are These Changes Proposed?

There's no reason to believe that the Government's intention in proposing these changes is to overhaul the fabric of permitted speech within Tasmania.  Rather, their genesis lies in the problem of bullying.

Bullying (including genuine online bullying) is a very serious and real problem which unfortunately lends itself to hysterical simplistic responses and media-driven morals panics. These have been especially pervasive this year, after some people discovered to their horror for the first time that there are such things as Trolls. The changes are explicitly linked to this problem by the Attorney-General, Brian Wightman, in this press release :

"Importantly, the changes will also improve protection for vulnerable Tasmanians who are worried about bullying, whether in the workplace, at school or on-line.

 The amendments will expand the prohibition on conduct which offends, humiliates, intimidates, insults or ridicules another person.

"The prohibition will be extended to conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of race, age, sexual orientation and disability.

"This is an important step forward in protecting workers, students and others from bullying."

The media release does not mention just how extensive the changes are (cherry-picking the least controversial ones) and nor does it consider the possibility that they might have an impact beyond "bullying".   Extending section 17 to cover most of the attributes in section 16, including those listed by Wightman, would not be a problem - and indeed would make a lot of sense given the arbitrariness of the current selection in s. 17.  It is the potential for these changes to impact - or to even be perceived as impacting - upon religious and political speech that is the issue here.

We see the same with this brief exchange where Liberal MLC Vanessa Goodwin says "These changes are so over the top they could potentially put newspaper cartoonists, political journalists and letter writers out of business". Brian Wightman is paraphrased as saying the government is "simply extending the provisions of the 1998 Anti-Discrimination Act" and quoted as saying "These amendments are an important step forward in protecting workers, students and others from bullying."

But Wightman hasn't answered the question (or if he has, he hasn't been quoted on it.)  What we have in this little exchange is a false dichotomy: the law does good and does it via a simple mechanism, so there cannot be a problem.  Logically, however, there is no reason why Goodwin and Wightman cannot both be essentially right.  The law may be well-meaning and effective at controlling bullying (although I doubt that anyway - bullies can just switch to other subject matter) but it may at the same time have unintended consequences created by what looks like sloppy drafting.  Perhaps courts would take into account the intended purpose and confine their attentions to bullying, but even so, a law that claimed to prohibit "any conduct" of certain kinds, while actually only prohibiting some, would be confusing.

I have also found this, which is the Attorney-General's detailed rationale for introducing the new changes.  In it, the Attorney-General:

* argues wrongly that "there is nothing to distinguish the two groupings of attributes from one another" (referring to those covered by the current section 17 (1) and those in section 16).  What he ignores is that while most of the attributes are similar, and while none should form a basis for in-person victimisation, some introduce special issues because of their potential to impact on public political and religious debate, and for that reason must be treated carefully.

* argues that "Much of the conduct prohibited by section 17 is the kind of conduct that people refer to as bullying.", while ignoring that some of it following the proposed reforms will certainly not be "bullying" as such.

* argues "There will no doubt be those who would suggest that to prohibit conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of religion is tantamount to a restriction on free speech. It is interesting that the same argument is not mounted when people are being protected from being humiliated or insulted because they have any of the attributes already listed in section 17."

Well, of course it isn't mounted, because ridiculing a person by name because they breastfed their baby on a bus or spend time looking after their grandparents isn't a major issue of political speech, and is more an issue related to person-to-person nastiness.  Whether we should be allowed to ridicule or insult someone on the grounds of their political views, on the other hand, is clearly a political issue, and in my view quite a major one.

* at no stage discusses the need for normal exemptions to the broadening of section 17 or any other safeguards it might require.

Why I Care About This

I believe - quite strongly - that some political views just are ridiculous, and that rather than trying to ban those views or give them more time of day than they deserve, the best way to deal with them is ridicule.  (Politicians show every sign of believing this too, of course - they ridicule each other on the basis of political beliefs on an almost daily basis).  

Anyone who, for instance, still supports the jailing of men who have consensual sex with other men  (a punishment in theory available in Tasmania until as recently as the mid-1990s) is the holder of a view that is so offensive and illiberal that it does not deserve to be treated with respect.  In my view it is wrong to adopt a kid-gloves approach to debating such a view as if it was just another reasonable option for a liberal-democratic society and a person espousing something so offensive and ridiculous deserved to have their feelings wrapped in cotton wool.  We should be allowed, beyond a shadow of a legal doubt, to call a homophobe a homophobe.

We should also recognise that sometimes political views are based on claims that are just false.  Yet if I strongly point out that some climate-change denier or extreme green simply has their facts W-R-O-N-G and their deeply-held political beliefs are just unfactual, disgraceful, pointless and stupid, they may say I'm hurting their feelings and bullying them, and take me to the Anti-Discrimination Commission.  They may well do so even if they started the exchange of insults and I'm just giving them back what they deserve.

It's amusing that in this matter I find common cause with "religious" groups like, for instance, the self-styled "Australian Christian Lobby".  Reading between the lines, the ACL is worried that more changes of this kind will make it hard for their members to say harsh and silly things about gay people.   I am concerned that more changes of this kind could make it hard for me to say harsh and not at all silly (indeed resplendently true) things about particular members of the Australian Christian Lobby.  (Among others!)

Aligning with the ACL about something for completely opposite reasons doesn't bother me.  What does bother me is that it appears, for one of very few times ever, that a Tasmanian Government is actually set on passing something that's such a mess that I really hope the Legislative Council fixes it.  And given my usual view that the LegCo's electoral system is laughingstock that needs massive electoral reform or else abolition, and that the LegCo has vast power but no actual mandate for anything all that contentious, this is not a conclusion that I like, at all, being dragged to.

LegCo Conservatives In A Bind

I am slowly working on a detailed analysis of the reasons given by the eight Legislative Councillors who recently voted against a bill to introduce state-based same-sex marriage, and this may be published at some stage in the future.   But no-one needs a detailed analysis to know that many of the MLCs opposing the Bill spoke against it on the claimed grounds that it might cause a High Court challenge which might be costly (oooh, a whole six figures, maybe ... but I digress ...).  

They expressed this view even though it was not clear who would have standing to bring such a challenge (meaning that there were differences of opinion over whether one would occur at all) and even though it was disputed whether a challenge would succeed. 

But you don't need to know very much about Australian law at all to know that the Australian Constitution provides a degree of "freedom of communication on matters of government and politics", as explored in Lange v Australian Broadcasting Corporation for example, and as the judgement I linked to above noted.  And indeed as Bromberg J put it in the Bolt judgement:

"Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal."

If this Bill goes to the LegCo, those who voted against same-sex marriage arguing that it could create a High Court challenge which might succeed, will be confronted with legislation that is obviously begging for one.  If they are going to display any consistency whatsoever then surely this is going to be in for some serious amendments.

Some Miscellaneous Comments 

While we are on the subject of bullying, those seeking to control online bullying also need to take a look at its alter-ego.  With the rise of morals panics about online bullying has come a tendency by some online posters to classify anything and everything they do not like in online debates as "bullying".  Much of the time this is even done insincerely, as something that is closer to (but not) bullying than the comments it is directed atA poster trolls somebody, the other poster flames them back, then the initial troll calls the flamer a bully.  There are instances where the "bully" card itself is used as a something approaching harassment (another word also too often taken in vain in online debates) and, while I don't think false bully calls need banning, there is a need to educate the community that the "bully card" is a problem in its own right and not all who cry "bully" are telling the truth.

Also,  I've long thought anti-discrimination/vilification law is arbitrary and clumsyThere are many categories, such as membership of a youth subculture, that are not considered to be worthy of protection under such laws, even though there have been some quite horrific cases that have shown that they deserve to be.  On a more mundane level, inappropriate discrimination against people on account of how they dress or whether they look shady is still rife, but in the too-hard basket.  The lists can be as long or as short as they like, but they will always play favourites and be inconsistent, and someone determined enough to discriminate against or vilify someone will always be able to find a pretext that isn't listed.  Perhaps it's time we looked for a framework that instead of prohibiting discrimination on a massive list of grounds simply prohibited it on the grounds of "anything that isn't bloody relevant".

And finally, the Tasmanian legislation still hasn't explicitly caught up with the problem of discrimination/vilification on false pretenses.  In the mid-1990s on and around campus, as an androgynously-dressed slender (not anymore!) male with copious long black hair (ditto, see About page for evidence), I copped a ridiculous amount of abuse, and in some cases vilification, on the false assumptions that since I looked a bit girly, didn't swagger like an Abbott, and was single at the time, I was obviously gay.  (And not just plain vanilla-gay either, but, as one of my pet graffiti stalkers had it, a "reaming anal rector with desires to bed down little boys", whatever that may mean.)  Anti-discrimination laws should not only target people who discriminate on certain stated grounds, but also explicitly target people who discriminate on the false assumption that their target has one of those attributes.

And force them to take identification lessons too.

Update added 1/12: Following comments by Brian Wightman while speaking on the amendment in Parliament, I now believe there is reason to hold that the government is well aware that this goes well beyond bullying and does reshape political speech in Tasmania - see article here ]

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