Mixing Harassment and Hurt Feelings with Discrimination

The following article is by Chris Berg and was first published at The Drum….

Proposed changes to Australia’s anti-discrimination laws were meant to reduce “uncertainty”. But Chris Berg argues that the attempt to merge laws on discrimination and harassment has resulted in an incoherent mess.

Even when discussing complex pieces of legislation, it’s worth trying to get basic concepts right.

The Gillard Government’s proposed anti-discrimination changes fail this test. They artlessly try to blend two concepts together – discrimination and harassment.

But to harass someone and to discriminate against someone are different things.

If a person misses out on a job in favour of a less-qualified person because of their skin colour, then that’s discrimination. Harassment is different. You harass someone when you intentionally disturb or upset another person.

They’re both bad, certainly. But they’re conceptually distinct, and have been that way since the first federal anti-discrimination law was passed in Australia in 1975.

The Government wants to “consolidate” a whole bunch of bills concerning discrimination – including the Racial Discrimination Act and the Sex Discrimination Act – into a grand Human Rights and Anti-Discrimination Bill.

Simplifying law is a usually good idea. Yet what comes out is an incoherent mess. And it’s hard for citizens to obey an incoherent mess.

For example, if the bill goes through the Parliament, it will be unlawful to treat someone unfavourably by offending or insulting them because of their political opinions, industrial history, or social origin in any work-related area.

The concepts of “offend or insult” come from existing harassment law. Unfavourable treatment is the mainstay of discrimination law. Fusing the two together may superficially seem like a good idea, but read the previous paragraph again. What wouldn’t be captured by this new omnibus bill?

All political opinions are offensive in some fashion – politics is about controversy. Almost everywhere is “work-related” for someone. Offence is in the eye of the receiver, not the giver. And what on earth is “social origin”?

These anti-discrimination changes have a long and sad history.

Way back in 2008, Kevin Rudd and his Attorney-General Robert McClelland announced a broad inquiry into Australian human rights protection.

They put Father Frank Brennan in charge of this National Human Rights Consultation. That year was the 60th anniversary of the United Nations Universal Declaration of Human Rights – a document which Labor’s HV Evatt helped draft. McClelland used the Evatt Foundation as his platform to kick it all off. There was a big song and dance about the whole thing. The committee received tens of thousands of submissions.

But the ambitions of 2008 disappeared. Kevin Rudd’s hyperactivity became nervousness and uncertainty. In 2010 the government rejected the committee’s major proposal – to implement a national charter of rights.

Rudd was dumped. McClelland was jettisoned from the Attorney-General position in 2011.

But one minor government response to the consultation was a promise to consolidate all existing anti-discrimination laws to reduce “uncertainty”. And once started bureaucratic process does not stop.

This is one reason the anti-discrimination bill has “human rights” in the title. It’s a grand phrase for something that is purportedly only designed to merge a few acts together. It’s good public relations as well. Who could oppose human rights?

Yet the consolidation of anti-discrimination law was barely mentioned in the final report of the Rudd-era consultation. And the report did not explain why it was necessary. Last year, a discussion paper about the potential consolidation took the need for legislative consolidation as a given. We seem to have skipped a step. Why is this all so urgent?

In The Australian earlier this month Roxon suggested we need consolidation because “the community at large, including lawyers, is unsure or confused about what might already be discriminatory”.

No doubt many people are confused. That’s what happens when governments pass a lot of laws.

But rather than clarifying existing prohibitions, Roxon’s department have chosen a brute-force approach – they plan to make everything discrimination. They haven’t just consolidated existing law. By mixing harassment and hurt feelings with discrimination they’ve dramatically expanded it, opening up vast new opportunities for litigation. The draft bill eliminates confusion, sure, but replaces it with chaos.

Lost in all this is any recognition of the importance of freedom of association.

Free association is one of our least defended liberties. It is just as much a human right as any protection against discrimination. It appears in both the American Bill of Rights and HV Evatt’s Universal Declaration of Human Rights. But anti-discrimination law – a passion of the human rights lobby – has steadily eroded it.

Now organisations have freedom of association only if they meet one of the exemptions specified in law. It is the responsibility of religious organisations to justify why they should be allowed to choose employees according to religious doctrine, rather than the government to justify why those organisations should be prevented from doing so.

We have had anti-discrimination laws for nearly 40 years. They’ve taken on a life of their own. The Government is now putting more effort into specifying what is permitted, rather than what is prohibited.

It’s hard to think of anything more contrary to the principle of human rights than that.

Chris Berg is a Research Fellow with the Institute of Public Affairs and author of In Defence of Freedom of Speech: from Ancient Greece to Andrew Bolt.