CANBERRA – There is an ambivalent relationship between human rights, resting on the inherent equal dignity and moral worth of all human beings, and governments. Individual civil liberties and political freedoms are most commonly abused by governments, yet their protection requires the legal framework and enforcement machinery of the state. For social and economic rights, the state is the primary provider and guarantor. The same is true of the rights against discrimination on spurious grounds like race, religion and gender.
In recent times many Western democracies have prioritized group rights to enact anti-discrimination laws that can curtail long-established foundations of a liberal polity, especially freedom of speech. Some even try to settle history through law. In some countries, denying a particular historical genocide can land people in jail while others have criminalized any mention of a historical genocide.
There has been an accompanying explosion in regulatory edicts that represent a creeping confluence of powers of the three branches of government in bureaucratic departments that issue, interpret and enforce the edicts with crushing instant fines. Should the target seek relief in independent adjudication, the fines accumulate rapidly.
In what seems like parody, the right against discriminatory action has morphed increasingly into the right not to be offended. Proliferating and out-of-control anti-discrimination tribunals have become the tool to enforce political correctness by state power. This includes restrictions on U.S. university campuses where concepts like trigger alerts, micro-aggression, safe spaces and a lengthening list of proscribed words that can cause hurt feelings have trampled free speech rights.
Following a famous 2008 case involving the writer Mark Steyn and Maclean’s magazine, Canada’s Section 13 was repealed in 2012 because the government recognized that it was causing more harm than good.
The equivalent Australian law is s18C of the Racial Discrimination Act, which proscribes any act, speech or writing that is “likely … to offend, insult, humiliate or intimidate another person or a group of people” based on listed criteria.
Three cases have catalyzed a public backlash against s18C. They show how human rights have been twisted as the law is used as a weapon of identity politics to silence, intimidate and harass people with differing viewpoints, or to extort money to compensate for “hurt” feelings.
The wide-ranging scope for falling afoul of s18C was shown in the 2011 case of Eatock v. Bolt, when several “fair-skinned Aboriginal people” took offense at a column written by journalist Andrew Bolt. In the finding against Bolt, the judge made repeated references to the “tone” of the article and also pointed to the need to read between the lines, meaning Bolt was found guilty as much for what he had not written as what he had written.
Regrettably, rather than risk further costs, the newspaper concerned chose not to appeal. That judgment now stands as the definitive judicial pronouncement on the fundamentally flawed s18C.
A second s18C case, yet to be concluded, concerns an incident on the premises of Queensland University of Technology (QUT) in May 2013. Three white students were ordered out of a “culturally safe” but empty computer lab, reserved for indigenous students, by the lab administrator. Their Facebook posts noted the irony of fighting racial segregation with policies of racial segregation.
The QUT staffer was so grievously hurt that she took sick leave for 30 months and is suing the students in a federal court for $250,000 for racial hatred. In turn, the Australian Human Rights Commission (AHRC) finds itself in the dock for violating the students’ human rights by the manner in which it proceeded to investigate the complaint.
In an opinion poll published Wednesday, Australians opposed action against the students by a solid majority of 57 percent to 21 percent (with 22 percent undecided).
On Aug. 4, the much-admired Bill Leak published a cartoon in The Australian that was a biting satire — the hallmark of all good political and social cartoons. The theme was the neglect of children in dysfunctional indigenous families in remote outback communities. A police officer — by the cartoonist’s deliberate intent, himself an indigenous responsible authority figure — presents an indigenous youth to his father and says: “You’ll have to sit down and talk to your son about personal responsibility.” The indigenous father, a can of beer in his hand, replies: “Yeah righto, what’s his name then?”
Many commentators condemned it for pandering to racist stereotypes. Many others praised it for its confronting truth of the chronic neglect of indigenous children. Because it was essentially true — satire doesn’t work without a kernel of truth — it hurt. In every society, there are people who take offense at truth that hurts.
In October, Leak and The Australian were told by the AHRC they were being investigated for alleged racial hatred under the Racial Discrimination Act. The legal response was that the defense would be based on the three interrelated grounds that the point of the cartoon was factually accurate, a genuine matter of public concern and a legitimate issue of public interest. Consequently, many indigenous people were prepared to testify that they were not “offended, insulted, humiliated or intimidated” by it.
The response went still further and accused the AHRC of outright bias because of the conduct of the race discrimination commissioner, Tim Soutphommasane. In inviting and encouraging complaints against the cartoon, he created reasonable apprehension of bias in judging the merits of the complaint when one was duly made.
Most importantly for present purposes, the response describes the complaint filed by Melissa Dinnison as “an outrageous slur on their personal judgment, their moral probity and their journalistic ethics.”
The Australian has the resources to mount a robust challenge to the AHRC apparatus and its apparatchiks. Most ordinary people don’t. And therein lies the rub.
Defenders of the oppressive s18C argue that the defense of good faith comment is available under s18D. This ignores two fundamental objections. First, the allegation in and by itself can ruin reputations and destroy lives beyond repair, even if the ultimate judgment finds for the defendant. Second, the process is weighted heavily against the defendant. The offended party files a complaint with the AHRC, which then uses state power and resources to pursue action against the defendant. The complainant suffers no penalty even if the case is eventually dismissed. The defendant’s world is destroyed even if eventually acquitted.
Not surprisingly, many people simply “settle out of court” in order to get on with their life rather than risk being caught in a legal trap with an uncertain outcome. Some of the QUT students chose to pay $5,000 — effectively as extortion money — to escape a potential legal nightmare. No citizen should have to spend time and money to defend a basic human right in the modern-day version of a star chamber.
The anti-discrimination act works to silence free debate of legitimate policy choices. It should be repealed as an attack on core freedoms that underpin liberal democracy. It also acts as a lightning rod for attacks on human rights protections more broadly and so is doubly damaging in that it distorts the rights agenda, degrades the AHRC’s ability to champion and defend human rights generally, and drains public support from the AHRC and its important work.
Ramesh Thakur is a professor in the Crawford School of Public Policy, Australian National University.
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