MUA---Here to Stay ...Today!
Discrimination Law and Its Abuses
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
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
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
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
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
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
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
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,
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)
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
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.
- 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.
- Within the groups designated by government as recipients of preferential
treatment, the benefits have usually gone disproportionately to those members
already more fortunate.
- 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.
- Fraudulent claims of belonging to the designated beneficiary groups
have been widespread and have taken many forms in various countries.
- 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
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
That in a nutshell, is how discrimination legislation paralyses our democracy.
Why HR Nicholls?