…is paved with good intentions.
This post is inspired by the Victorian Government’s review of the Equal Opportunity Act. Copies of the various submissions and documents, and the final report, can be obtained from here.
Chapter 6 of the Report recommends:
that the Commission should be able to conduct own motion investigations into systemic issues arising from disputes that the Commission becomes aware of. It should also be able to conduct own motion inquiries into any matter relating to the operation of the Act and any circumstances where a breach of the Act may have occurred or is about to occur. The outcomes of an investigation or inquiry may include, the Commission entering into an enforceable undertaking, or issuing a compliance notice. The Commission may also present a report on an own motion inquiry, possibly for tabling in Parliament.
The Report also recommends that the Commission have the power to compel the attendance of a person to provide information and to produce documents for the purposes of an inquiry, as well as powers of entry, search and seizure.
Attorney-General Rob Hulls has indicated that he would consider it appropriate for such a law to be used to compel the Athenaeum Club to admit female members. As discussed in this blog previously, the Club has been riven by a dispute as to whether female members should be admitted. However much I may think it is foolish of the Athenaeum Club to refuse to admit women, I also think it would be counterproductive to force them to admit women against their will (or at least, apparently against the will of the majority of members of the Club).
The Australian has written an editorial which is decidedly against such a proposal:
The proposed extension of powers for the Equal Opportunity Commission would all but ensure more government oversight of what we say and think and do. And it demonstrates why so many lawyers delight at the prospect of the picnic a national bill of rights would provide them. Mr Hulls should reject the proposals before him. Give the thought police an inch and they will take a light year.
I can’t help wondering whether legislative change such as that proposed in the Report might end up having adverse effects on minorities, rather than the positive effects intended by the reforms. I’m indebted here to skepticlawyer’s post on affirmative action, where she cites the interesting case of the Americans with Disabilities Act (‘ADA’). The Freakonomics economists, Dubner and Levitt, note that sometimes legislation passed with the best intentions has the opposite effect, citing a paper by Daron Acemoglu and Joshua Angrist. The ADA had been intended to help disabled people, but the analysis suggests that the number of disabled people hired fell after the ADA came into force. Among other things, the added cost and more complicated procedures involved in hiring a disabled person as a result of the ADA apparently acted as a disincentive to employers from hiring disabled people at all.
I guess it comes down to how you want to persuade others in society not to act in an unfair and discriminatory fashion. This new proposal seems to use a rather large and powerful stick rather than a carrot. I am instinctively wary about such coercive measures. And, as skepticlawyer warned in her post on affirmative action, such changes are expensive, as laws have to be enforced and applied. Therefore, we have to assess whether the financial cost of a law will be outweighed by the advantages of a law.
The Report mentions that some other Commissions have own motion powers, including the UK Equality and Human Rights Commission and commissions in NSW, Queensland, Tasmania, the ACT, WA and the Northern Territory, as well as the Commonwealth HREOC. The argument is that allowing such powers allows the HREOC to attack systemic discrimination. The Report notes that the power would be used rarely, and in WA, for example, there have only been two inquiries.
I’m not against government intervention per se, as long as I can be sure it is proportional and effective. My first worry with this “own motion” power is that it is envisaged to be very broad. Another is whether the exercise of such powers is actually effective in preventing discrimination. I would love to know whether the two inquiries conducted in WA, for example, have had any practical impact upon the practices which were investigated, and whether enforceable undertakings or other compliance orders were issued. Finally, I also wonder how much all this is going to cost.
Of course I am outraged by the terrible tales in Chapter 1 of refugees, indigenous people, single mothers, homeless people and disabled people who have been discriminated against. It makes me mad. But I wonder if granting the HREOC these powers is the way to deal with it most effectively. We should think about it very carefully.
29 Comments
The law enforces all sort of social mores and views using power, or force, or the threat of either. (eg taxation, business regulation, environmental and planning regulation, the Commonwealth ban on ACT gay marriage legislation, the invasion of Afghanistan, Iraq, East Timor).
Why just single out Equal Opportunity and Human Rights laws?
I don’t see what is wrong in this case in developing a principle and having society adopt it (after being democratically elected to govern, too). That principle seems to be all human beings are equal (irrespective of race, gender, class etc). And it should apply across the board (including to private clubs and Churches.)
Here in Canberra the Canberra Club resisted change for many years – they needed a 75% vote in favour to allow female members.
My memory is that eventually the old fogeys died off (or some of them) and the Club’s finances began to weaken markedly. So one of the steps to address this was to have female members. (They also sold off most of their site to developers).
Of course the great god money would prevent many working class men and women being members of the Atheneum. (That’s an assumption on my part, but one I suspect is valid. Disabuse me of it if I am wrong.)
A good post, and I would also object to this on the principle that people *should* be able to form free associations. Wasn’t the question of female membership in fact raised by older members of the Athaneum in the first place? And wouldn’t the attitude of the state government – that they could just interfere at will in a free association – simply cause many of the members to harden their hearts against the proposition? If the Government doesn’t even respect the choices of the Athaneum club, why should they respect the decisions made for them by the Government?
On a completely unrelated matter LE, hope you get a kick out of these.
John, my concern with this particular scheme is the power given to the HREOC to intervene in a coercive manner.
What does it mean to say all human beings are equal? Does it mean formal equality or substantive equality? And if the latter, how do we ensure that substantive equality is achieved?
For example, with regard to indigenous law students (an example raised by the Report), my preference would be to ensure that indigenous children get adequate schooling in the first place rather than to force firms to take indigenous lawyers on (as the Report seems to suggest). I tutored a range of indigenous students at university. Some coped fine, some struggled. The ones who struggled suffered further blows to their already fragile self-esteem. However, I pointed out that they had never been taught how to research or how to write an essay. My aim was to give them the skills to stand on their own two feet, without the need for my help. The root cause, therefore, is childhood disadvantage and lack of access to adequate education. It is this that must be tackled.
Re the Athenaeum Club: personally I really dislike these exclusive clubs (channeling Groucho Marx). Not only do they exclude women, but historically, they also discriminated against Jews and Catholics. I’m sure there would also be an implicit if not explicit discrimination against the working class too (“just not our type of person, eh wot?”). I’ve only been to such a club once – I really wanted to go to the secret areas where only men are allowed. I contented myself with breastfeeding in the Club. Bwah ha ha!
That being said, if other people wish to have such an organisation, I believe that they have a right to free association. Funnily enough, Tim is right – it was the old members who wanted women admitted, and the “young fogeys” who were against it. I suspect that if the Athenaeum doesn’t move with the times, it will lose its membership and influence anyway, but that’s its choice.
As a onetime member (interstate) of the Atheneum Club, I suggest the main problem with such clubs is that the food is not very good and the company boring for most normal people.
And they are dying – the old idea that the country was run from the Melbourne Club is not close to reality, if it ever was.
So in the anti-discrimination cause, this issue should be well down the list. I am sure it is getting publicity because it fits the current anti elite attitudes.
On your main point LE, I object to the granting of coercive powers to governments. Our governments have not shown they can exercise the coercive powers they have well (immigration detention, anti terrorism) so I don’t trust them with more. And allowing the Commission to act on its own motion makes it more dangerous.
Usually, when government bodies seek the latter power it is because they are running out of business.
Some (I’ll look it up) regularly report that people must be intimidated about complaining because they receive so few complaints.
Good post, LE.
John Passant
The law bloody well better not “enforce social mores”. It should enforce THE LAW. There are some things up with which folks in a democracy should not put. Numero uno being a bunch of crypto-fascist goons champing at the bit to pass over to unelected judges and bien pensant bureaucrat luvvies the power to enforce whatever they happen to think the “more” du jour is.
No, having thought about this whole “human rights” stuff, we need to protected from JUDGES! How? Only judges who have been ELECTED by us, the masses, should ever be allowed to sit on these HREOC Road-to-Kafka bodies.
We faced this issue when I was a member of the Apex club and attempts to get up allowing women to be members never managed to get up in the time I was a member.
As was suggested in the earlier post here that touched on this subject men and women are different and there are times when each want the company of their own gender.
What I wonder is if the feminist warriors who are driving this campaign would feel if we had some men insisting that they be allowed to join some women only organisations and clubs . The reality is that it is not the club or its facilities that the women want access to in Athenem club it is the chance to network with those who are considered to be the movers and shakers of society.
I am reminded of the Groucho Marx line that says “I would not want to be a member of any club that would have me as a member” but in this case the more apt line is “who would want to be the member of a club that won’t have you as a member? “
Iain: These clubs might have been full of shakers and movers 20 years ago. Today those shaking have a sad medical problem.
I guess it comes down to how you want to persuade others in society not to act in an unfair and discriminatory fashion.
Key word: persuade.
I can see affirmative action having a positive effect short term. You see people who’re discriminated against on the basis of whatever doing certain jobs and the idea is no longer fantastic. But it’s still discrimination, can be unfairly exploited and inevitably leads to people getting picked on the basis of something other than merit.
In the case of compulsion to associate it’s pretty stupid. People aren’t going to accept you if they don’t want to. And they’re not going to accept you doubleplus if the government makes ‘em. What are they gonna do? Send the cops in to make sure you’re being nice?
I think it boils down to the they should do something. Often it’s I should do something or we should do something.
But private sector solutions are so right-wing.
All HREOCS should be disbanded. End of story. If you want to understand why, see Canada. Or ask this guy.
Have to say I’m in saint’s corner on this one. We covered the Ezra Levant/Mark Steyn case back in the day (here and here), even getting a link from both ‘victims’ at one point.
The point needs to be made loudly and very clearly: you cannot change people’s attitudes using the law. I’ll just repeat that. YOU CANNOT USE THE LAW TO CHANGE PEOPLE’S FUNDAMENTAL VALUES.
There is now significant research showing that the attempt to impose moral values that are not widely shared throughout the community using legislation is just different kinds of FAIL. Joseph Raz was the first to make the point that murder rates are low in developed countries not because there’s a law against murder, but because most people happen to think that murder is morally wrong. Having sat through a large number of murder trials in my time, I can also say with absolute certainty that most murderers think murder is wrong. Many murders do have a strong element of ‘crime of passion’ in them, and many murderers have no ‘priors’ — they’ve just ‘let go’ in a really destructive way.
This applies to all attempts to legislate morality — not just HREOC, but abortion and homosexuality as well. If what the law is prohibiting is not widely considered immoral throughout the community, it will be (a) breached so often it becomes a dead letter (b) very patchily enforced (c) navigated around, much like excessively high taxes (d) mocked. The rule of law is a good thing, but it is not the only good thing. There are other ways to ameliorate the effects of the fact that many people do not play well with others; law isn’t the only one.
Is THIS the road to hell?
http://www.austlii.edu.au/au/cases/cth/HREOCA/1999/2.html
Leavened only by the remedies available under discrimination law?
Sweeney, you are right. Either we make discrimination law more accessible and affordable for every day people, or we continue to have HREOCs.
It’s just that in practice, HREOCs don’t always work – just like courts, I suppose. I had a good friend who was discriminated against, and brought an action in the HREOC. Unfortunately, it wasn’t well-handled, and she ended up feeling that the complaint officer had discriminated further against her. The problem was that there wasn’t really any other avenue for her to ventilate her complaint. She contacted the professional body governing the company which had discriminated against her, and they showed no interest at all. That is when you do need a stick.
And contingency fees. I know those horrible Americans have them, and we can’t possibly be seen to be copying the Yanks, but it is one way to make the law more affordable. There are serious institutional consequences attached to law being priced out of the reach of ordinary people, and we are hobbled by the fact that ‘head-work’ is over-valued while ‘hand-work’ is undervalued (a plumber is infinitely more useful than a lawyer) in our culture.
We either go the whole Friedmanite hog and deregulate the legal profession (which means law firms will lose conveyancing and other ‘steady little earners’) or we allow contingency fees. The development of masses of Administrative legal muck (for that is what it is) represents the law’s best response to the state encroaching on areas where it has no business and the tendency of lawyers to price themselves out of the reach of ordinary people (and I don’t mean the poor; I mean the middle classes).
Yes LE, that’s the rub. Currently, we can’t NOT have it. Thinking about that case – which I found hard to get out of my head – it occurred to me that the conduct endured by the complainant was verging on negligence. But negligence law is not good at recognising that kind of harm. Should it be? The ONLY practical avenue was anti-discrimination law.
Sweeney, agreed – until and unless there’s something better on offer, I think HREOCs have to remain. But I’m still very dubious about this proposed extension of power; I believe that there are better ways of achieving the goals which are sought to be fulfilled.
How about a s.128 referendum to include an Equal Protection Clause a la the US Bill of Rights 14th (?) Amendment?
LE
I have just been reading up on HRA Vic. Whooooaahhhhh…nobody has ever said boo about that s.32. Holy Dooley, do the judges have to wear jackboots?
s.32 empowers judges – on both interpretation of legislation and power to deal with such legislation – far beyond the levels currently being talked-down by Kirby and mates.
s.32 says:
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
Once more begs the question, what is a “Human” right answered in
(2) International law and the judgments of domestic, foreign and international courts relevant to a human right may be considered in interpreting a statutory provision.
Thus, not only can Victoria’s Supreme Court justices ‘authority-shop’ in any part of the globe, so long as they can identify some relevance to a “human right,” the parliament is on notice that a similar deference be shown to the globe’s human rights legal decision-making hotspots.
Or have I had too much acid tonight?
Section 32(2) doesn’t bother me so much. Courts have always been able to use judgments and legislation of other jurisdictions in interpreting statutes if they choose to do so. A decision of another jurisdiction is merely persuasive, not binding, so you don’t have to follow it. Similarly, courts have always been able to use international treaties in interpreting statute. So, for example, if Australia becomes a party to a treaty, and then enacts a provision in legislation which is on the face of it contrary to that treaty, the court is entitled to assume that surely Parliament would not legislate to contravene international obligations it has undertaken.
However, as you know, I’ve always been worried about the malleable nature of human rights, so s 32(1) worries me. Some certainty is provided by the Charter itself, which provides a list of rights – it’s not just any old right. The bit that concerns me with s 32(1) is “compatible with human rights”. What does “compatible” mean? And what if there’s a balancing act between two different rights contained in the Charter? Which one wins? I guess we’ll have to wait and see.
LE
While I understand and support the HC referring to, deferring to, being influenced by, and occasionally basing decisions upon, non-Australian judicial systems and decisions, is there even ONE other piece of legislation in Australia with such an explicit clause?
What it is clearly doing is legitimising – indeed forcing – the parliament to privilege the values and ideology of international human rights Luvvies and Moonies over the values of Australian hoi polloi.
It is disgusting and a further sign of the ethical sewer most of the ALP wallows in. And yet I vote for them!
Hmm, I can’t think of any other legislation with such an explicit clause, but then I’m really a common lawyer.
At least there’s discretion in sub-s (2) – “may be considered”. So a judge who doesn’t want to consider other jurisdictions and international human rights law has a discretion not to do so.
By contrast, sub-s (1) is mandatory – ” all statutory provisions must be interpreted”.
Yeah, as far as I’m concerned, voting is about choosing the lesser of many evils… Sigh.
LE
Following your educating me on the possibility of several different title owners for the same piece of land, I spent the last few days reading the whole Mabo decision – all 133 pages if you please! What a mind-blowing piece of jurisprudence, which your heads up on multi title holders made me far, far more supportive of the decision that I might otherwise have been. If you have time, I’d love to chat about it. Is this the best thread?
By all means! OOOOOOH, someone who wants to chat about property law. It’s my LUCKY DAY. (My best friend would be chuckling. She once threatened to throw me out of the car if I discussed property law for one more second).
Property law is a bundle of rights… ready, steady, GO!
Oh no, don’t start me on the bundle of rights theory… GRRRR…
Well, native title anyway… at least if you buy Mabo…
/Sad law nerds that we are, making property law jokes.
!As you are both a jurist and parent I’d really appreciate your take on the UN Convention on the Rights of the Child. I’ve only become aware of this over the past few weeks. I thought my jaw had already dropped to its lowest possible level, but I found an extra five feet after reading it. And I have not come across one pair of breeders among my friends that does not think it is an outrage; and most of them are Luvvies!
Whose interests and values does this never ending circus of Conventions serve? Why don’t we just be done with it and hand all newborns over to the state!?
Yeah, some of the sentiments in the Convention of the Rights of the child are fine (no child shall be a sex slave) but I don’t see how others really work.
For example, what is “the best interests of the child”? See Art 3(1): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
I was having an argument with my three-year-old lawyer daughter. She asked why I stopped her doing certain things. I told her that I wanted what was best for her. She said that she thought it would be best if she ate chocolate every day (yes, seriously, that’s really what she said). I said that it wasn’t good for her from my perspective, and that since I was the boss, it was my perspective that mattered. A child may have different ideas about his or her own “best interests” than a parent. It’s just so hard to decide what the best interests of a child are… Unfortunately for my daughter, I’m pretty sure that eating chocolate every day isn’t in her best interests (I want her to have some teeth left by the time she reaches primary school).