MUA---Here to Stay ...Today!

Discrimination Law and Its Abuses

Andrew McIntyre

In this talk I would like to take a brief look at the two major anti-discrimination Acts in Australia, those of race and sex---and comment on their common features and contradictions, and give some examples of how they work in practice. Finally, I would like to present a brief international perspective and reflect on the effect discrimination law is having on our society.

To start with, there is good news and there is bad news. The good news is that what ever the outrageous unintended consequences of these laws here in Australia, it is not because we are a too-clever-by-half country. The same aberrations appear throughout the world. Having said that, it is true that in matters sexual, or rather should I say, gender, the growth of a strident and highly politically influential gynocracy is largely specific to anglo-saxon countries. The bad news, if that already isn't, is that studies from countries around the world, with quite dissimilar economic, social, historical, and racial features show that all forms of anti-discrimination law are a dismal failure, and appear to always make matters worse. I will return to this point later.

In Australia, the Racial Discrimination Act was passed in the federal parliament in 1975. Nearly ten years later the 1984 Sex Discrimination Act was passed. On its heels came the 1986 Human Rights and Equal Opportunity Act, which was the basis for the creation of the Human Rights and Equal Opportunity Commission. Unsurprisingly, the Commission has gone forth and multiplied. At the present moment there are six commissioners each with his/her/its/their kingdom; Human rights, Privacy, Sex discrimination, Disability Discrimination, Aboriginal and Torres Strait Islander Social Justice, and Race Discrimination. However, the present government is proposing to cut the numbers of Commissioners from six to three with a merging of some areas of jurisdiction. It has already cut its budget from around $17 million to $10 million. Considering that only 8 per cent of investigations ever get to a full hearing (more than 40 per cent are vexatious and the rest not pursued) that cut is probably modest.

A striking feature in the administration of these Acts is that those bureaucrats who seek to work with the Human Rights and Equal Opportunity Commission are what you might call somewhat "motivated". Commission hearings have effectively established a quasi-judicial structure, but lack the normal checks and safeguards we expect from our courts. The hearings are not bound by the evidence which, in any case, is often entirely subjective and can be kept secret, the Act itself is ambiguous and fluid in its definitions of what constitutes an offense, there is no requirement to show intent on the part of the respondent, and there is no protection from self-incrimination. It is an environment calculated to stimulate zealotry of the highest order on the one hand, and intimidation and subjugation on the other. Like the Star chamber in seventeenth century Stuart England, the discrimination laws have merely become instruments for enforcing the claims of the political Left's "prerogative."

Central to this system, in both the areas of race and sex, is the vagueness of the charge and the lack of need to demonstrate intent. A Brisbane solicitor, R. D. McGregor, in a review of the Commission's Annual Report 1996/97, which appeared in the May edition of Quadrant, comments that,

racism itself is neither mentioned, let alone defined in the Racial Discrimination Act, nor per se unlawful: acts which many people may think "racist" are not unlawful unless they amount to racial discrimination or offensive behaviour as strictly defined in the... Act. Furthermore, a person can be guilty and punished even though innocent of any intent to infringe, that is, unlike the case of a criminal charge, an absence of mens rea, or guilty intent, is no defence, since any action having the effect, regardless of purpose, of racial discrimination is prohibited.

There is a similar problem with the Sex Discrimination Act. The then Prime Minister Keating introduced an amendment to the Act in 1994, widening the subjective interpretation of what constituted harassment in the workplace to feelings of being offended or humiliated, and removed the need to demonstrate perceived potential harm. Imagine if that sort of looseness ever applied to the libel laws. Peter Costello, then shadow Attorney General, commented, "It is altogether very wide and rather vague. It needs a very thorough review." The Opposition barely challenged the definition at the time, promising to do so when in government. We are still waiting.

Fortunately for all of us, the power of the Commission has been considerably diminished as a result of the highly publicized Brandy case. You will recall that the Commission ruled in favour of a white employee of ATSIC against racial discrimination. The respondent, Aboriginal Harry Brandy, appealed to the High Court, alleging that the quasi-judicial powers of the Commission were in breach of the Constitution. The High Court agreed. Needless to say, there is work afoot to pass a new Act allowing full hearings of the Commission to be placed in the Federal Court.

The names of the two Acts, the Racial Discrimination Act and the Sex Discrimination Act, are at least accurate, if Orwellian. They both discriminate, the one for Aboriginals, the other for women, and they were intended to do so. The confusion is that on the one hand the Commissioners want to discriminate, and on the other they don't. It's a matter of heads you're a racist, tails I'm a victim. This is clear in the Commission's reaction to the case of Gerhady v Brown (1985). It concerned an Aboriginal man prosecuted under a South Australian law for being on lands under the control of the Pitjantjatjara without the prior permission of that people, of which he was not a member. The High Court held that law to be racial discrimination under the Act but that it was a "permissible special measure." Zita Antonios, the Race Discrimination Commissioner, far from working to re-educate the perpetrators of the discriminatory law, not only criticized the High Court but officially argued for the Act to be amended to declare such discrimination "non-discriminatory". If you have difficulty with this concept, it is probably because you fail to have, in the Commissioner's words, a "sophisticated theorization of racial discrimination". In her opinion, "Australian Courts and Tribunals have failed to display an ... accurate understanding of the idea that the principles of equality and non-discrimination do not require equal treatment."

The problem in Australia clearly comes from a confusion between the notion of race and the notion of culture, and, in the sexual domain, the confusion between sex and gender. The black American writer Ralph Ellison, puts this falsehood clearly, "blood and skin do not think". The most poignant plea to end this destructive Australian confusion comes from Dulcie Wilson, one of the "dissident Narringderri women" in a moving talk she gave in Melbourne in 1994 during the Hindmarsh fiasco.

Even after 200 years of settlement, many Australians still believe that Aboriginals are naïve and ignorant, that they don't understand what they are saying and doing. I personally believe that the greatest injustice to Aboriginals in this country was the labeling of them as different. By making Aboriginals a separate people this label created the problems and the divisions that we face today. Aboriginal people today function in the very same way as other human beings. They are just as capable of doing good and bad ....They themselves must face up to what has happened and repudiate the sham excuse that their problems are the result of colonization. They must accept responsibility for their own lifestyles and actions.

Everything about the Race Discrimination Act, and almost all other legislation in relation to land rights, native title, and ATSIC itself is based on this fundamental, and dare I say it, racist, misunderstanding."

The tortuous problems associated with what the High Court called "exceptional measures" and the contradictions of having a bet each way is illustrated richly in the Sex Discrimination Act. Cast your minds back to the sixties. Some of you will remember the Student Union building at Melbourne University with the Men's Lounge and the Women's Lounge, marked on separate doors in gilt lettering, havens from the rigours of social intercourse. Pubs had the stand-up swill room known as the Public Bar, and their own Ladies Lounge. But the Baby Boomer feminists were keen to break down all these social and institutional boundaries that allegedly discriminated against women. Nowhere was exempt from this attack. Assailed were the deepest mines, the most isolated oil rigs, the highest building sites, the strongest battleships, the most exclusive clubs and finally the Anglican Secret-men's-business priesthood. And what is the only strangely resistant bastion? The public toilet.

With smoking as an emancipatory gesture amongst teenage girls, the rising lung cancer rate became a direct measure of equal outcomes for women. Indeed, the federal Sexual Discrimination Act was passed to prohibit women from being treated as women, as distinct from just plain persons or employees or bosses. Underlying the jargon term "gender" construction was the denial of the biological basis of sexual differentiation and all that it implies. So be it. The Act truly became an "anti-sexual" Discrimination Act.

For the protection of our nation's kindergartens and childcare centres, the National Childcare Accreditation Council drew up gender guidelines known as the Quality Improvement and Accreditation System. They would protect our children from Cinderella, Robin Hood, The Three Musketeers, Superman, the Wind in the Willows, Alice in Wonderland and fairy tales by the Grimm Brothers. Childcare workers were instructed to no longer distinguish between the sexes, such as telling a little girl she was pretty or a little boy that he was strong. They were not to say "good boy" and "good girl".

These guidelines were introduced in 1994, but are now taking effect. Childcare centres have been made aware that failure to implement the guidelines, which are policed by assessors, could result in the loss of accreditation and government funding.

But something strange was also happening. Just as women were becoming truly emancipated from any vestigial sexuality, the Commission turned the Act around to protect them. The same people who demanded access to sexist institutions and social spaces now demanded Wymin's rooms at university (the spell check doesn't recognize it yet). The historic McIvers Ladies Baths in Sydney was granted an exemption under the NSW Anti-Discrimination Act to exclude men, and a new women's only gym, Contours of Parramatta, is opening branches throughout Australia. The wearing of the veil by Muslim girls at school is acceptable along with their non-participation in mixed swimming events. It is not a long bow to draw in the context of the McIvers Baths to argue that the particular religious beliefs that exclude women or inhibit them from mixed bathing is actually an infringement of their rights. But who would? But then again, nothing is certain. Victoria's Anti-Discrimination Tribunal ruled against a Jewish marriage agency only last month saying it would be prejudicial to non-Jews.

Gender inclusive language prescriptions have become monstrous. But have any of you noticed the tendency in corporate training seminars, usually run by female consultants, to address both men and women, especially women, as "guys"? All you guys happy with that? Recently there was a very silly, earnest debate in the letters page of The Australian about non-sexist titles of address for women, suggesting a desire to squeeze the very last drops of any residual sexuality out of office workers. I thought it merited a reply to the letters page.

There has been much unnecessary and implicit lasciviousness in the recent debate over the Miss, Mrs, Ms issue in your letters page.

The desire of certain women to hide their status as married, especially if to a man, happy, and enjoying a regular sex life, is understandable. Already in the work place we think of sex far too much. The average male thinks of it six times every minute, according to some surveys. I certainly do.

I agree that the workplace should be desexualized along the lines recommended in the Anti-Sexual Discrimination Act, so that nobody knows which women are happy, or indeed that they are women at all. Given the male propensity for being predatory in matters sexual, it means they will be even more confused and not know who to unwantedly compliment on their hair or dress or who to persistently ask out on dates after not being told "no".

But why bother with Ms at all? Ms and Mr are both gender designators, which we agree are an irrelevancy in the modern workplace. We should all be addressed as M. or Mmm (for people one fancies).

The M would obviate the clumsy Sir/Madame address (a sop to bisexuals and cross-dressers if ever there were one) in replies to the inevitable letters from the local Council signed "U.R. Pretty, Chief Accountant" or even letters to the Editor which I note has abandoned the 'Sir' altogether, probably for that reason.

When this form is securely in place we could then tackle the more urgent task of scrapping gender specific first names. When I see a business letter signed Cheryl or Kylie, what am I meant to think?

If we implement these changes it may reduce the number of times we think of sex. You will all have already thought about it six times listening to this. Could we not reduce it down to a controllable three or four times only?

What about the costs and the results? We have equal opportunity officers throughout the country like red guard brigades. Every company with over 100 employees (some 10,585 nationally) must have its own Equal Opportunity Officer who must report directly to the CEO and then to the Federal Government's Affirmative Action Agency to explain what measures they are taking to increase the female participation rate. We have every state high school, university and TAFE college in the land with its own Equal Opportunity Officer, along with each state and federal government department, all the Unions, the ACTU and organizations like the Chambers of Commerce. The total estimate of equal opportunity officers is between 10,000 and 18,000 Australia wide. This is, of course, not enough. The Victorian State Government has just released its Draft Two Year Plan for Women 1998-2000 with over 210 strategies to assist women in the areas of safety, health, economic security, and leadership. All up a budget of over $50 million. The Federal government spends $200 million directly and over $2 billion indirectly, mainly on childcare subsidies and women's health programmes. This does not include the other state governments.

And the result? The most recent Affirmative Action Agency's Annual Report was tabled in parliament. Women hold 11 % of positions on the corporate ladder, just 3 per cent more than in 1995, and the number in trades has stalled at 7 per cent of all positions. I also believe there is a general decline in the number of female public servants. The most sexist industries, please take note, were mining , power supply and construction. Nationally, 63 of almost 3000 organizations failed the Agency's test. They will not be able to tender for government contracts. Agency Director Catherine Harris said, "This core group are either appalling managers or resistant to change".

But it is worse than that. Shiela Jeffries , a lecturer in Politics at Melbourne University, has revealed that "between 17 and 70 million animals are killed in US laboratories every year, and they are mostly females.

Federal Workplace Relations Minister Peter Reith has set in train a review of the Affirmative Action Agency, partly in response to the concerns of business, and following the Competition Principles Agreement of 1995. The enquiry is looking to assess the costs and benefits of the Act and ways in which it can be improved. Submissions were called for and round table discussions were held throughout Australia. Who is participating? Almost all those at the meetings representing business were none other than their female Equal Opportunity Officers. I went to one of the round tables, and asked the Chairman, in light of the people they were talking to, how they intended to write an objective report on what they set out to find out. I believe the Affirmative Action Agency will see a role for itself, well, forever ...

It is interesting to look at French views on multiculturalism in contrast to our own and those of America. They were aired recently in the reputable academic, social issues journal Esprit. One writer, Joel Roman, like other French academics, is highly critical of what he calls French particularism---at its extreme a conformist and nostalgic xenophobia, a la Hanson. And like Hanson, he sees internationalized market forces as socially alienating, as "they fail to provide any perspective on the desire to live as a community". Echoing the sentiments of anti-assimilationists within Australia, he sees French universalism as "effacing all (multicultural) differences."

In the same review, however, Tzvetan Todorov points to the dangers of multicultural policy from a French perspective. He sees in the rise of multiculturalism in the United States a decline in democratic values, particularly in the cardinal value of individual autonomy:

the most important form of renouncement of autonomy is the identification of the individual with a group, not one the individual chooses, but one that is imposed on him by biology, birth or history.

He draws a comparison with the rigidity of social groups under the ancient regime:

People were what they were once and for all: I was born a peasant, I will die a peasant, and this is what decides my place in the political hierarchy of my country. Just as people's futures were determined ... because they were peasants, aristocrats, Jews, or African slaves, so we are creating a society of women, ethnic groups, homosexuals, and indigenous peoples.

He observes that, in the United States, already there are black and white only dormitories and dining rooms under the guise of multicultural affirmative action. It is a new apartheid.

The influence of the French Revolution should never be underestimated as a reason for France's resistance to the cult of special interest groups. In her recent book of writings by French feminists, the historian Mona Ozouf explains French feminists' resistance to separatism in terms of their attachment to the universal appeal of the rights of Man against communitarianism. Ultimately, she believes, "it is the French Revolution that guards them against the extremism seen in English speaking countries."

In these anecdotal threads we see emerging the danger of creating policies for categories of people rather than individual citizens. In an outstanding book, "Preferential Policies; An International Perspective" by the American academic Thomas Sowell, a detailed analysis of the effectiveness of the policies we have been discussing is given for countries as disparate as India, Nigeria, Malaysia, Sri Lanka, and the United States. Sowell comes to some pretty baleful conclusions. They are worth citing in full. What is all the more remarkable about these conclusions is that he is not talking about Australia. Nevertheless, close your eyes and smell the gum trees.

  1. Preferential programs, even when explicitly and repeatedly defined as "temporary" have tended not only to persist but also to expand in scope, either embracing more groups or spreading to wider realms for the same groups, or both. Even preferential programs established with legally mandated cut-off dates, as in India and Pakistan, have continued far past those dates by subsequent extensions.
  2. Within the groups designated by government as recipients of preferential treatment, the benefits have usually gone disproportionately to those members already more fortunate.
  3. Group polarization has tended to increase in the wake of preferential programs, with non-preferred groups reacting adversely, in ways ranging from political backlash to mob violence and civil war.
  4. Fraudulent claims of belonging to the designated beneficiary groups have been widespread and have taken many forms in various countries.
  5. Both official and unofficial writing on preferential programs tend to abound in discussions of the rationales, mechanics, and resource inputs of such programs, with a dearth---or even total absence---of data on the actual outcomes.

What is to be done? The repressive and manipulative nature of these Discrimination Acts is clear for all to see. The damage it is doing to civil interaction, let alone truthful debate, through general fear of giving offense or being labeled, is palpable. It would seem, sadly, that the Liberal Coalition has not the moral fibre, courage or appetite to really do something about it. They are afraid to say anything about anyone for fear of upsetting the media and the electorate.

One incident sums up the problem. Last year, a group of Singaporean soldiers were attacked at night in a Queensland town by a drunken group of Australians. Everyone, especially the media, condemned the growing tide of anti-Asian, white red-neck racism inspired, in their certain opinions, by Pauline Hanson. But it was left to Hanson, in a question without notice to the Prime Minister in the Parliament, to ask him if he could confirm to the House that the drunken group involved in the incident were in fact Aboriginals. The Prime Minister knew, the government and opposition knew, and above all, the media knew.

That in a nutshell, is how discrimination legislation paralyses our democracy.