From Industrial Relations to Personal Relations:
The Coercion of Society

Discrimination at Large

Dr Colin Howard

Ray Evans announced the theme of this conference in a notice dated 23 September 1994. In case the theme, "From Industrial Relations to Personal Relations--- The Coercion of Society", was not self-explanatory, the notice continued as follows, and I quote:

This theme has suggested itself because the various industrial tribunals have taken it upon themselves ... to make rulings upon matters which are normally the preserve of families, or churches, or other independent institutions in society. The use of anti-discrimination powers in order to force people to enter working relationships which they would otherwise not have entered, or to compel people to continue with employment arrangements which at least one of the parties wishes to terminate, is an obvious example ...
Parental leave, child care facilities, ... the overriding of religious schools on their employment policies, are all elements of this new ambit claim for platonic control over our lives.

Ray's choice of the adjective "platonic" for that last remark is spot on. The corporatist philosophy of fascism finds its intellectual origins in Plato's fantasy of a dirigiste ideal world.

The point I want to make today is that the intrusive industrial phenomenon to which Ray refers does not exist in a vacuum. It is a natural product of the current social and political climate. It reflects a dismal and continuing decline in moral courage in this country. The signs are not lacking. What they have in common is a retreat from the proposition that individuals should be responsible for their own decisions and actions.

That is not all they have in common. The expression "warm inner glow" has become popular among commentators who, like myself, view the trend away from personal responsibility with alarm and despondency. The reason is that it catches the essence of a particular attitude towards society with unusual precision.

This attitude is characterised by a marked preference for feeling good rather than doing good. It dislikes facts that prevent the beholder from feeling good. That is not surprising. We all like feeling good and we all dislike facts that deprive us of that pleasure. But what matters is how we react to those facts.

Some people become skilled at pretending that facts they do not like do not exist. Like Pangloss in Voltaire's Candide, they are often mistaken for optimists. If you want a contemporary example, drive along the Great Ocean Road from Anglesea to Lorne in Western Victoria and observe how many householders have apparently learnt nothing from the 1983 Ash Wednesday bushfires, and the consistent advice of the fire authorities, about clearing fuel foliage. As a general proposition however there is at least one good feature of the attitude of such people. It is that although they do nothing to improve society, at least they do nothing to make it worse. They do not suffer from the sin of hubris. They simply cannot face facts.

Others accept the facts and try to accommodate themselves to them. This can take a variety of forms. One is to decide that, regrettable though the situation is, nothing much can be done about it. Another is to promote comparatively minor reforms on the basis that they cannot do much harm and are worth a try. A third is that the situation should not be tolerated and that something should be done about it.

People who fall into this third category include many who do not rest content with their beliefs on the matter but try to do something practical about promoting sensible reform. I am anxious to make that point clear. I do not wish it to be thought that any of the criticisms I shall make shortly of people who pose as reformers, but have quite different motivations, are directed at those valuable members of society who daily devote much time and often unrewarded effort to trying to improve things.

Whether they act on their beliefs or not, people who fall into the three categories that I have just identified share a characteristic which is important to my theme. It is that, whatever their individual motivations, they do keep their eye on the facts. They are not navel gazers or mere seekers after power or fame.

Above all, they are not primarily interested in making themselves feel good. They act out of conscience and a sense of responsibility. They are concerned with situations outside themselves, not with self-interest. Of course they are pleased if their efforts produce a good result, but merely to be pleased with themselves is not their primary motivation.

There are however yet other people who similarly accept the facts, and do not like them, but whose reaction to them is fundamentally different. What these people object to is the state of not feeling good, not the actual existence of whatever it is that is preventing them from feeling good. This leads them to take, or espouse, measures which make them feel better regardless of the effect on the facts.

It is these people who are preoccupied with the warm inner glow. All too often they inadvertently lend support to cynical power seekers who are interested only in facts which can be exploited to further their ambitions. Colloquially they are often called do-gooders because they are capable of doing a great deal of harm, but they might just as well be called feel-gooders. They are particularly prone to destroying the potential of basically decent ideas by distorting them out of all recognition.

Take, for example, the currently prominent buzzwords "equality" and "discrimination". These are difficult concepts at the best of times, and the times are far from the best. By way of introduction to the blatant misuse of these terms at the present day let me recall that there is a native Australian concept of equality which has nothing to do with warm inner glow.

By "native" I do not mean that Australians invented it. Not at all. The idea of equality has always been closely related to the idea of justice. It is many centuries since rebellious peasants in England chanted, "When Adam delved and Eve span, who was then the gentleman?". No, Australians did not create the concept of equality, although it took firm root here. Nor do they seem to me to have been attracted by dogmatic abstractions about people being born equal, being equal in all their talents or being of equal moral worth.

What they did do was adopt a concept that everyone should be judged on his or her own qualities of character, not on occupation, income or position in the social hierarchy. To this they added, not the dogma that everyone should have equal opportunity, whatever that means, but that everyone is entitled to a fair go. To my mind there is a profound difference between these ideas and the self-contradictory nonsense that we have to put up with nowadays under such rubrics as equality of outcome and positive discrimination.

The importance of the native Australian concept of equality is its basis in self-respect. That in turn is attainable only if the individual accepts personal responsibility for his or her own decisions and actions. It is this that is being steadily eroded by the warm inner glow. Take, as an example, equality of outcome. This expression has been particularly prominent in recent years in educational contexts, at all events in Victoria, but potentially it has a far wider range of application.

Suppose people in a State education department are unhappy about examination results in secondary schools. They are perturbed because, in their view, examinations discriminate in favour of the cleverer children by revealing their superior ability. This is seen as unfair because it makes life even harder for the less clever children than it would be anyway. The constant reminder that they are not the cleverest diminishes their self-esteem, which is perceived as more important to them than it is to the cleverer children.

The argument is advanced also that those who come from non-English speaking backgrounds (signified by the acronym NESB) are probably not less clever at all but just have more obstacles to overcome. In the departmental view this too is unfair and probably leads to all kinds of social problems as well. At this point some anguished soul who cannot bear another moment of torment about examination results decides that what is wrong with the system is that the concept of equality is being applied in the wrong place.

The children all have equal opportunity to sit the exams but, for one reason or another, they do not all have equal opportunity to come top. This means that the initial equality is illusory. The difficulty however would disappear if equality were applied instead to the results of the exams. Then everyone would come top of the class. The fact that everyone would also come bottom of the class can be dismissed as ideologically unsound.

Let us see what has happened here. The line of thought starts with the accurate perception that competitive examinations in mass education, whilst yielding a body of reasonably reliable information about comparative ability, do have the unfortunate feature of leading all too many people to accept the results as a measure of moral worth.

Successful examinees are highly praised and rewarded with prizes. Those at the bottom of the class are regarded, and all too often regard themselves, as inferior. In one form or another dunces cap theory may emerge: the dismal idea that the less successful will be encouraged if they are exposed to the derision of the rest.

Such a situation understandably troubles the conscience of people of goodwill. On the one hand the successful deserve praise for their achievement in coping well with the examination. It is unfortunate perhaps that the achievement is too often seen as coming top, or near to it, rather than the high standard of scholarship attained, but that is not the fault of the examinees.

The problem to be tackled in no way requires taking something from the successful but devising methods of persuading the less successful that they are not unworthy. Their potential skills may not be adapted to a written examination, or they may just not be very bright. But whatever the problem, constructive methods of encouraging their self-esteem should be sought.

Contrast this approach with the scenario that I sketched a moment ago. The troubled people of goodwill have kept their eyes on the facts and produced a constructive and potentially fertile idea. In Australian terms the source of that idea was the concept of the fair go: that children and young people who do not cope well with formal competitive examinations deserve an opportunity, if possible, to prove their worth in other ways. The same concept requires that this not be done at the expense of successful examinees.

The feel-gooders started from the same position as the people of goodwill but promptly distorted the concept of the fair go into an egalitarian caricature. In my view they did so because it represented the quickest way of attaining a warm inner glow about all the good they claimed to be doing. The fact that they were on the way to making a genuine educational problem not better but far worse escaped them because they averted their eyes from the actual facts of the situation as quickly as possible.

If there is anyone here, perhaps from interstate, who thinks I have been making all this up, let me assure them that I have not. I have merely summarised what went on in Victorian State secondary education circles for about a decade under ALP governments. The people I called the feel-gooders propounded, and tried to force on everyone else, the theory of what they called equality of outcomes. The consequences, had they been successful, would have been disastrous. Indeed, to some extent they came to pass. A rush, by parents who could afford it, to move their children into private schools was predictable and duly took place, an ironical outcome for self-styled egalitarians if ever there was one. Children whose parents could not afford it felt more discriminated against than ever.

The CHIP Foundation, which exists to promote the dissemination of knowledge about gifted children, for years encountered great difficulty in getting any funding at all. Its records reveal cases of children of genuine ability becoming discouraged and sometimes deeply emotionally disturbed. The major universities were quick to point out the looming repercussions on selection procedures and the fact that they were not equipped to re-educate large numbers of teenage illiterates.

In short, even partial success for the feel-gooders and their fellow travellers was a major disaster. Total success would have assumed the proportions of a national catastrophe. I should like to believe that even if they could not teach, they might by now have learnt a lesson, but I doubt it. Minds that can seriously advocate equality of outcomes are, I fear, not readily changed.

I have dwelt on that example because in terms of my theme today it illustrates the destructive power that the move away from personal responsibility can generate. The educational feel-gooders lacked the moral courage to say, simply and honestly, that competitive examinations are a necessary feature of any effective system of mass education but not a sufficient one. A society which ignores such simplicities and indulges in the luxury of undermining individual self-reliance in the name of a spurious egalitarianism is heading for disaster, as even the mighty USSR found out in the end.

I am reminded, as I often am, of the deft way in which W.S. Gilbert used to deal with social illusions. You may recall that he satirised misplaced egalitarianism in The Gondoliers, summing the matter up in the ditty the refrain of which ran,

"In short, whoever you may be,
To this conclusion you'll agree,
When every one is somebodee,
Then no one's anybody."


I am reminded also of Paddy McGuinness's characteristically succinct summing up, in an article in the Melbourne Age on 26 October 1994, of where we are at with equality. He wrote, and I quote:- "Moreover, far from equality involving equal treatment, it is now argued that inequality of treatment is required in order to produce equality of result." Which brings me to discrimination.

Although anti-discrimination is dignified, if that be the word, with a name of its own, it is only a particular form of the misplaced egalitarianism that I have been talking about. Saying that someone is being discriminated against is the same as saying that she or he is not being treated equally with the rest. This is why discrimination shares with equality the characteristic of being a difficult and often self-contradictory concept. Nowadays it is similarly misapplied. I quote Mr McGuinness again, from the same article. He has just mentioned an increasing tendency in the United States (and he might have added the European Union) to find ways of giving minorities more voting power in legislatures. He continues, "Schemes for multiple voting or weighted votes or blocking minorities would effectively deprive the majority of the community of any right to assert its will simply because it is the majority." Again the point made is capable of wider application.

Every time a law is made for the benefit of an identifiable category of people, to the exclusion of everyone else, that law discriminates in favour of that category of persons and against everyone else. In the usual case the identified group is a minority, so, as Mr McGuinness points out, the possibility arises of such an accumulation of special minority rights that a numerical majority of the population becomes, for practical purposes, itself a minority. Alternatively such a situation can be seen as an entertaining instance of discrimination against a majority by a majority of minorities. I make that point only to emphasise the ease with which the concept of discrimination can fall into linguistic confusion. The success of the feel-gooders in this area owes much to that vulnerability. The measure of their success has been the extent to which people nowadays take for granted that discrimination is intrinsically bad without noticing that it is as inevitable a feature of life as individual self-reliance.

This would not particularly matter were it not for the fact that the prevailing confusion obscures the point that people should not be under pressure to support a purportedly anti-discriminatory measure simply because it is anti-discriminatory. It may be bad, or at least of doubtful value, for quite other reasons. A current example is legislation prohibiting racial vilification, an ironical development at a time when the High Court is doing its best, in the interests of freedom of speech, to roll back our absurdly restrictive laws against defamation.

The heart of the trouble is something that I have commented on before. It is an unavoidable side-effect of anti-discriminatory laws that they tend to create the very harm that they purport to prevent. As soon as something is officially classified as discriminatory, people start discovering it all over the place. Pitiable problems arise about whether a joke in poor taste about an Englishman, an Irishman and a Scotsman are racial vilification, discrimination or harassment, and if so, of whom.

We seem to be at the point where even to inquire if something is discriminatory is to imply that it is. Such a state of affairs is of course ludicrous, not to say highly undignified. It is however, both intrinsically and in many of its manifestations, far more serious than that. The reason is, once again, that the whole anti-discrimination movement has become a method of policing people's lives by removing from the individual the responsibility for her or his decisions or actions.

This works both ways. The majority lose incentive to behave reasonably because the decision whether they are doing so is taken out of their hands. The minority are an even worse case. If they are perceived as having benefited, they get no credit for their own efforts because everyone knows they are in a privileged position by law. In addition to this they have to resist the temptation to exploit their advantage unfairly.

It should also not be overlooked that the intended beneficiaries may not by any means necessarily appreciate the efforts of the feel-gooders. The ALP is currently full of enthusiasm, at least publicly, for increasing the number of women MPs by way of quotas at the pre-selection stage. My impression is that such measures are not universally popular among ambitious women.

From personal contacts, and what I read in the newspapers, I understand that one school of thought regards advancement of women on that basis as a devaluation of their achievements and an encouragement to advance mediocrities by awarding them merit points merely for being female. It is also not the case that every Aborigine in the land has welcomed either native title or the Native Title Act.

Another disquieting aspect of anti-discrimination legislation is its close connection with the unpleasant phenomenon known as political correctness. Political correctness is enforced conformity with currently popular feel-good opinions about society. Its most usual manifestation is suppression of free speech and inquiry. You will be familiar with the resistance aroused by any attempt nowadays to investigate the nature of human intelligence. Any scientist who so much as applies for funds for such research risks ostracism and the ruin of a career.

This is because anti-discrimination sentiment in the form of political correctness is characterised by a massive absence of wisdom. The argument for preventing the discovery of any reliable information about the nature of human intelligence is that such knowledge may be used to oppress and persecute races perceived as inferior. The example of the Nazis is regularly cited in this context. Yet the most obvious feature of Nazi racial theories is that the psychopaths who dreamt them up had no idea what they were talking about. They did not misapply knowledge. They simply invented it for their own appalling purposes.

I believe it was Evelyn Waugh, but it may have been Graham Greene, who remarked that no-one should be brought up in a manner suitable for the twentieth century. It has always seemed to me that if more people had been brought up in a manner suitable to the twentieth century, the last hundred years might have turned out a lot better than they did. The argument from ignorance is always a menace, whether purportedly anti-discriminatory or otherwise. The best way of countering it is not the creation of yet more ignorance but the discovery and dissemination of knowledge.

Take another example, closer to home. The United States of America suffers, understandably, from a collective phobia about that part of the population which identifies as Black. Any attempt to investigate the nature of human intelligence is viciously resisted for fear that the results could be used to justify continued neglect or mistreatment of Blacks, or Afro-Americans as they are now called.

It never seems to occur to anyone that the policies which have thus far signally failed to improve the lives of the great majority of Afro-Americans is that in the present climate of near hysteria about racial discrimination, no policy is likely to be more than guesswork based on wishful thinking, plus of course a deep desire to feel good about something that is obviously bad.

If innate intelligence does indeed vary with statistical significance as between different segments of the human race, surely that is an important factor to be taken into account in formulating humane and constructive social policy. If there is no such correlation, then fine, at least we get that monkey off our backs. Either way there is absolutely nothing to be said for ignorance and mob rule disguised as concern about racial discrimination.

The interrelation between ideologically inspired egalitarianism, anti-discrimination and political correctness, and how deeply they have penetrated our society, are well illustrated by a description given to me recently of an incident in a class conducted at one of our better law schools earlier this year. For reasons which will become obvious, I do not intend to reveal my source but, I can assure you that it is entirely reliable.

The lecture was on a routine legal subject, let us say contract. The lecturer was female. She referred to a book of cases and materials and criticised it on the ground that only a small minority of the cases cited involved women. In discussion this sentiment received strong support from most of the women in the class, who were a minority. One of them however disagreed, making what one might have thought was the reasonable point that the sex of the litigants is not necessarily relevant to the legal issue in a case.

She was almost literally shouted down and found herself on the receiving end of personal abuse. Two things were particularly disturbing about the incident. One was that after the class a male student came up to this woman and apologised for failing to support her. He explained that he thought most of the men agreed with her but none of them was game to criticise the lecturer on such an issue or take on any of their female contemporaries. The second disturbing feature was that this happened in, of all institutions, a major school of law.

Although I have written and spoken on many occasions about the native title upheaval, it is impossible to comment on discrimination, or anti-discrimination, in this country without at least mentioning it. The event illustrates so many features of anti-discrimination mania so well. Consider for instance the damage it has done to personal responsibility.

On the basis of a hastily constructed theory of reconciliation, the several generations of Australians living at the present day suddenly become liable to lose their land or pay compensation for acts allegedly committed by a handful of the long dead ancestors of a few of them. As I remarked on a different occasion a few months ago (and I apologise to those who were present then for quoting myself), it is almost as if in 1900 or so the House of Lords in England had drastically altered the land law of Scotland to atone for the fact that the English victory in the battle of Culloden in 1746 was followed by a merciless policy of driving the native Celtic highland clans from their glens, never to return.

The concept of personal responsibility involved is, in my view, incomprehensible. I can understand personal responsibility for my own decisions and actions. I cannot understand personal responsibility for the actions of my ancestors, especially as none of them ever set eyes on this country. Perhaps one should not be surprised therefore that the adoption of such a peculiar version of ancestor worship ushered in the making of discriminatory laws, both judicially and legislatively, of a blatant and extraordinarily sweeping character.

I mentioned earlier the logical possibility of the majority of the population being discriminated against by a minority. Here we have a vivid example and, ironically, it is racial discrimination that is in issue. The only people who can take advantage of the Native Title Act 1993 (Cth) to claim land or compensation are people descended wholly or in part from Aborigines. That means that such people have special rights that are denied by law to almost the whole of the population on the basis of race.

The situation is truly grotesque. There is nothing egalitarian or anti-discriminatory about it. As a matter of law it is not equality but inequality and massive discrimination which has been introduced. You will recall my earlier observation that anti-discriminatory laws tend to create the very harm they purport to prevent. This has not taken long to emerge. There is not only dissension between various Aboriginal interest groups. There is increasing tension between claimants and non-Aboriginal occupants of land. The hardening of attitudes associated with the Yorta Yorta claim in north-eastern Victoria, a closely settled area for well over a century, is noticeable.

It is against the darkening background of national self-deception of which I have been speaking this morning that I think this conference should consider the specifically industrial causes for unease to which Ray Evans has directed our attention. The coercion of society has not gone unnoticed by the big battalions of the industrial law world. They have studied the latest techniques of coercion by confusion and clearly understand them well.

As one last example, taken from the Industrial Relations Reform Act 1993, the Brereton Act, it did not take long for them to adopt the language of enterprise agreements in order, with Mr Brereton's assistance, to convert the legal reality back into the familiar centralised control of wage-fixing, once again an exercise in the destruction of personal responsibility for individual decisions.

Why HR Nicholls?