If the betting markets are to be believed some time later this year there will be a change in government and Nicola Roxon will cease being Attorney-General. Right now it looks like she’ll be replaced by Senator George Brandis. After reading an extract of Hansard I’m not convinced the change is worth making.
Senator BRANDIS: Mr Wilson, I completely agree with you! But I have an even deeper concern, because, probably unlike some of you at the IPA—I know the IPA; I know their general philosophical orientation—I strongly support anti-discrimination law. My deep concern is that this is not really an anti-discrimination law at all; it is something else packaged up as an anti-discrimination law. Because it overreaches so far, particularly in relation to the provisions that we have been discussing, it is really a law against controversy, because, if we have an undefined category of political opinion and we have undefined criteria of insult or offence, nobody knows what they can say, and therefore maybe in a robust political discussion they might throw caution to the winds and say it anyway, but the media, who might be subject to a liability, as Mr Bolt’s broadcaster was, will self-censor, and it will have this chill effect. That is not what anti-discrimination law was ever intended to do.
Senator BRANDIS: Let me throw a really simple example at you that has happened in Australian history endless times, though not recently: an Aboriginal person goes into a pub in some outback town, and the publican, who operates under a licence, says to the Aboriginal person, ‘We do not serve blacks here.’ Should there be a law against the publican saying that? I say there should be. What do you say?
Mr Breheny : We share your disgust.
Senator BRANDIS: Should there be a law against it?
Mr Breheny : Seriously, on a personal level we share your disgust; we are just as morally outraged as everyone else in the room. The distinction we make, though, is between us making moral judgements and us making legislative judgements, and those to us are two completely separate questions.
Senator BRANDIS: So you do not think legislative judgements are also moral judgements?
Mr Berg : The Australian delegation to the original convention on anti-discrimination pointed out that you cannot legislate people into morality. We share the Australian delegation’s view on that.
Senator WRIGHT: We are really talking about legislating about behaviour, aren’t we?
Mr Breheny : Yes.
Senator WRIGHT: And that is something we can do. …
Senator BRANDIS: You seem to be taking—if I may say so, Mr Wilson—a very absolutist view of freedom of association. I myself think that freedom of association is a less absolute right than freedom of speech, but there are other rights as well with which it might be inconsistent. The philosophical problem I have with your position is that you seem to live in a universe in which there is a nice jigsaw puzzle of mutually consistent rights. I myself, as you may know, am a great fan of Sir Isaiah Berlin, and one of his teachings was that rights are sometimes incompatible and inconsistent. Freedom of association as an absolute might be incompatible and inconsistent with certain other rights, and I am just struggling to understand why it is that, in your view, freedom of association, important though it is, excludes all other rights that might come into competition with it—unless you think that is impossible, but I do not know how you can say that.
The correct answer to ‘should there be a law against it?’ is ‘No’. Brandis has answered his own question when he said, ‘though not recently’. Racial discrimination tends not to happen in competitive markets. There is no need to have laws against things that don’t happen. Another answer revolves around ‘the publican, who operates under a licence’. The licence issurer could write in anti-discrimination clauses if it wanted to. Although many places are still able to discriminate on the basis of dress (no singlets, work shoes, etc. etc. etc.).
The correct answer to ‘So you do not think legislative judgements are also moral judgements?’ is ‘No’. Here is the problem – Brandis must think the answer is ‘Yes’. Once you imagine that rights are relative and conflicted then someone – some wise person in Canberra – gets to choose which rights dominate and which do not. So expect to see lots more social engineering coming out of Canberra and the Attorney-General’s office even after the election. The rhetoric will change, but not the behaviour.
Senator Penny Wright (SA, Greens) has already established the principle – they will not be imposing moral values, just regulating behaviour.