WEBVTT 1 00:00:00.680 --> 00:00:06.980 This session of the 2013 Adelaide Festival of Ideas was recorded by Radio Adelaide, 2 00:00:07.020 --> 00:00:10.500 through the support of the Bar Smith Library, University of Adelaide, 3 00:00:10.620 --> 00:00:14.480 the University of South Australia Library and Flinders University Library. 4 00:00:15.680 --> 00:00:18.920 Welcome to today's Mitchell Oration. 5 00:00:18.940 --> 00:00:22.360 I am delighted to introduce today's session, 6 00:00:23.160 --> 00:00:27.440 Basic Instinct, the Heroic Project of Anti-Discrimination Law, 7 00:00:27.440 --> 00:00:31.580 and our special guest orator, Professor Simon Rice. 8 00:00:31.940 --> 00:00:35.400 The Mitchell Oration is sponsored by the Equal Opportunity Commission 9 00:00:35.400 --> 00:00:39.460 to honour the work and achievements of Dame Roma Mitchell, 10 00:00:40.240 --> 00:00:46.760 a trailblazer in law, government, academic life, public, philanthropic service, 11 00:00:47.540 --> 00:00:49.920 a great woman role model in our state. 12 00:00:51.220 --> 00:00:54.080 Dame Roma Mitchell was born in Adelaide in 1913. 13 00:00:54.180 --> 00:00:57.280 She was a lawyer, judge and governor, 14 00:00:57.440 --> 00:00:58.140 and a member of the Commonwealth of South Australia. 15 00:00:58.920 --> 00:01:03.540 In honour of her work as chair of the first Commonwealth Human Rights Commission, 16 00:01:03.780 --> 00:01:06.600 and as a powerful advocate of human rights, 17 00:01:06.700 --> 00:01:11.300 Dame Roma Mitchell was asked to present the inaugural Mitchell Oration in 1989. 18 00:01:12.120 --> 00:01:17.620 So this year's oration, Basic Instinct, the Heroic Project of Anti-Discrimination Law, 19 00:01:17.800 --> 00:01:23.140 will examine Australia's relationship with equal opportunity and anti-discrimination law, 20 00:01:23.240 --> 00:01:26.200 and look at what impact legislation has had. 21 00:01:27.440 --> 00:01:30.320 And the role of other factors such as social attitudes and practices. 22 00:01:31.000 --> 00:01:35.740 And it is fitting that when Dame Roma Mitchell presented the inaugural Mitchell Oration, 23 00:01:35.920 --> 00:01:38.740 entitled Looking Back, Looking Forward, 24 00:01:38.860 --> 00:01:41.580 she also spoke about anti-discrimination law, 25 00:01:41.820 --> 00:01:45.920 what it had achieved, and the directions it might go in the future. 26 00:01:46.360 --> 00:01:50.760 Dame Roma talked about the difference such legislation had made in areas such as 27 00:01:50.760 --> 00:01:54.900 the working rights of women, the rights of Aboriginal people and migrants, 28 00:01:55.160 --> 00:01:57.260 and the rights of people with disabilities, 29 00:01:57.440 --> 00:01:58.060 and the rights of women with disabilities. 30 00:01:58.060 --> 00:02:01.620 Today we continue to debate and discuss these issues. 31 00:02:01.660 --> 00:02:05.980 Women in leadership, the recognition of Aboriginal people in Australia's constitution, 32 00:02:06.360 --> 00:02:11.600 and in the area of disability, the development of the National Disability Insurance Scheme. 33 00:02:11.640 --> 00:02:14.380 These are still alive issues in our community. 34 00:02:15.340 --> 00:02:22.820 Dame Roma, in her oration, she talked about how child-minding centres were unheard of in 1962 in Australia, 35 00:02:23.100 --> 00:02:27.420 because the majority of women had to or were expected to give up work when they married. 36 00:02:27.440 --> 00:02:30.120 I'm delighted that that's no longer the case. 37 00:02:31.040 --> 00:02:35.400 She also highlighted the fact that South Australia was often the vanguard of social legislation, 38 00:02:36.340 --> 00:02:39.380 introducing the Prohibition of Discrimination Act in 1966, 39 00:02:39.680 --> 00:02:43.300 some nine years before the Commonwealth Racial Discrimination Act. 40 00:02:43.600 --> 00:02:48.060 She spoke about the need for racial vilification laws and age discrimination laws, 41 00:02:48.300 --> 00:02:53.080 and age was introduced in South Australia into our Equal Opportunity Act in 1990. 42 00:02:53.760 --> 00:02:57.360 She argued that legislation and education were necessary, 43 00:02:57.440 --> 00:03:02.040 to ensure that people not only had legal rights to equality, 44 00:03:02.260 --> 00:03:06.020 but that society was made aware of its human rights responsibility. 45 00:03:07.080 --> 00:03:12.260 She did suggest that she would like to see that there was no need for equal opportunity laws, 46 00:03:12.500 --> 00:03:15.460 but she didn't see that happening in the foreseeable future. 47 00:03:16.140 --> 00:03:18.600 Certainly at the Equal Opportunity Commission today, 48 00:03:18.680 --> 00:03:22.800 we continue to see a steady stream of complaints and inquiries every year. 49 00:03:23.400 --> 00:03:26.320 And whilst we have seen some improvements and developments, 50 00:03:27.440 --> 00:03:29.780 and I gave the example of women and work, 51 00:03:29.920 --> 00:03:33.240 there are still issues that we need to address. 52 00:03:34.060 --> 00:03:36.800 Our highest area of complaints relate to people with disability, 53 00:03:37.660 --> 00:03:40.140 racial discrimination and sexual harassment. 54 00:03:40.480 --> 00:03:45.180 In addition to legislation, education, prevention and early intervention 55 00:03:45.180 --> 00:03:48.200 continue to be a key strategy in our work. 56 00:03:48.480 --> 00:03:52.560 And after a year in the job, and talking with Professor Simon Rice, 57 00:03:52.600 --> 00:03:54.720 I'm very keen to hear what he has to say. 58 00:03:55.100 --> 00:03:56.600 The role of legislation, 59 00:03:56.600 --> 00:03:58.260 and the differences it's made, 60 00:03:58.440 --> 00:04:01.560 what's the focus of education in the future, 61 00:04:01.720 --> 00:04:05.280 developing training that really challenges the human mind, 62 00:04:05.920 --> 00:04:08.960 cognitive biases, I think these are areas for the future. 63 00:04:09.120 --> 00:04:12.220 The issue of free speech, particularly in social media, 64 00:04:12.420 --> 00:04:15.100 and the question of whether to or how to regulate it, 65 00:04:15.180 --> 00:04:17.800 and how to ensure that our legislation is modern. 66 00:04:18.240 --> 00:04:19.700 These are just a few issues. 67 00:04:19.820 --> 00:04:21.720 After talking with Professor Simon Rice, 68 00:04:21.820 --> 00:04:24.600 I'm very excited to hear what he has to say. 69 00:04:24.800 --> 00:04:26.400 So let me tell you a little bit more. 70 00:04:26.600 --> 00:04:27.680 I'm going to start with the first question. 71 00:04:27.680 --> 00:04:32.440 Simon is a professor of law at the Australian National University, 72 00:04:32.580 --> 00:04:35.920 where he is Director of Law Reform and Social Justice 73 00:04:35.920 --> 00:04:37.740 at the ANU College of Law. 74 00:04:38.260 --> 00:04:43.660 He is also Chair of the Australian Capital Territory Law Reform Advisory Council, 75 00:04:43.820 --> 00:04:48.280 and I understand that they are currently reviewing the ACT Discrimination Act. 76 00:04:48.680 --> 00:04:51.180 Professor Rice has also, among many roles, 77 00:04:51.240 --> 00:04:56.500 been a judicial member of a tribunal deciding discrimination complaints in New South Wales, 78 00:04:56.600 --> 00:05:00.520 Director of the New South Wales Law and Justice Foundation, 79 00:05:00.900 --> 00:05:04.240 and President of Australian Lawyers for Human Rights. 80 00:05:05.380 --> 00:05:07.300 He is an anti-discrimination lawyer, 81 00:05:07.420 --> 00:05:11.700 and he still represents complainants in New South Wales, ACT and federally. 82 00:05:12.460 --> 00:05:16.380 And recently he convened the Committee of the Discrimination Law Experts 83 00:05:16.380 --> 00:05:20.540 for advice and submissions to the Federal Discrimination Law Consolidation Process, 84 00:05:20.940 --> 00:05:24.600 which unfortunately has not come to fruition at this point in time. 85 00:05:24.740 --> 00:05:26.580 And I'm sure that was a huge impact. 86 00:05:26.580 --> 00:05:30.160 I'm sure that was a huge investment of his time and effort in that consolidation. 87 00:05:30.520 --> 00:05:32.140 But maybe another day, Simon. 88 00:05:33.200 --> 00:05:36.760 Professor Rice lectures, researches and writes extensively 89 00:05:36.760 --> 00:05:39.780 on issues of human rights law and policy, 90 00:05:40.100 --> 00:05:43.220 anti-discrimination law and access to justice issues. 91 00:05:43.780 --> 00:05:47.180 He is also an occasional anti-discrimination hearing commissioner 92 00:05:47.180 --> 00:05:48.540 in the Northern Territory. 93 00:05:48.980 --> 00:05:51.420 He's also a co-author of two books, 94 00:05:51.620 --> 00:05:55.800 Australian Anti-Discrimination Law and the International Law of Human Rights. 95 00:05:56.960 --> 00:06:01.740 In 2002, Professor Rice was awarded a medal in the Order of Australia 96 00:06:01.740 --> 00:06:05.280 for legal services to the economically and socially disadvantaged. 97 00:06:06.400 --> 00:06:10.420 There is more I could say, but it is best to hear from Simon himself. 98 00:06:10.960 --> 00:06:15.440 And I'm sure you agree that he is a very well-credentialed person 99 00:06:15.440 --> 00:06:18.860 to deliver the 20th Dame Roma Mitchell Oration. 100 00:06:18.920 --> 00:06:23.040 So please join me in welcoming Professor Rice to deliver his oration today. 101 00:06:23.580 --> 00:06:24.640 Thank you. 102 00:06:26.580 --> 00:06:28.260 Thank you for the introduction, Anne. 103 00:06:28.600 --> 00:06:32.660 When I was asked to provide some information about myself, 104 00:06:32.740 --> 00:06:34.780 I also volunteered the fact, relevantly today, 105 00:06:35.800 --> 00:06:37.980 but people never actually put it on your CV, 106 00:06:38.020 --> 00:06:41.900 that I'm a white, middle-aged, middle-class, married male. 107 00:06:44.040 --> 00:06:47.000 Fairly apparent, I know, but, as I say, relevant. 108 00:06:48.640 --> 00:06:53.960 I begin by acknowledging the dispossessed Indigenous owners of this land. 109 00:06:55.160 --> 00:06:56.560 And I express my support. 110 00:06:56.580 --> 00:06:58.460 I am very sorry for the sorrow at the loss and harm they have suffered. 111 00:06:59.100 --> 00:07:03.260 And I commit myself to achieving their status as truly equal participants 112 00:07:03.260 --> 00:07:05.380 in the rights and freedoms we enjoy. 113 00:07:06.100 --> 00:07:08.200 That's not the usual acknowledgement of country. 114 00:07:08.440 --> 00:07:11.400 And no disrespect, John, yours was a thoughtful one. 115 00:07:11.560 --> 00:07:15.680 But it's not the usual, commonly perfunctory recitation of words 116 00:07:15.680 --> 00:07:20.060 that has become expected before we get on to whatever business it is we're here to do. 117 00:07:21.960 --> 00:07:26.160 But an acknowledgement like that illustrates an essential part 118 00:07:26.160 --> 00:07:26.900 of my theme today. 119 00:07:28.100 --> 00:07:32.140 That persistently conscious, specific, and deliberate recognition 120 00:07:32.140 --> 00:07:34.920 of disadvantage and marginalisation is only the beginning 121 00:07:35.500 --> 00:07:38.540 of what we need to do if we are truly committed to equality. 122 00:07:40.340 --> 00:07:43.380 A concurrent theme is that, perhaps, as a society, 123 00:07:43.440 --> 00:07:46.580 we are not, and never will be, truly committed to equality. 124 00:07:48.180 --> 00:07:50.820 It is an honour to be invited to give this oration. 125 00:07:51.140 --> 00:07:54.300 I confess that I did go and look up oration 126 00:07:54.300 --> 00:07:56.140 to see whether I was supposed to give something more. 127 00:07:56.160 --> 00:07:57.240 More other than a speech. 128 00:07:57.500 --> 00:07:59.860 And I was reassured by the dictionary 129 00:07:59.860 --> 00:08:05.520 that it is a formal speech delivered in connection with a particular occasion. 130 00:08:06.340 --> 00:08:10.520 Which, in my experience, would embrace weddings and other such events. 131 00:08:10.680 --> 00:08:12.500 But I'll be slightly more highbrow than that. 132 00:08:13.140 --> 00:08:16.320 An archaic meaning of oration seems apt. 133 00:08:17.300 --> 00:08:19.200 A prayer or petition to God. 134 00:08:20.400 --> 00:08:24.020 I do fear that pervasive social equality is beyond human powers. 135 00:08:24.680 --> 00:08:26.140 And may be achieved only with the help of God. 136 00:08:26.140 --> 00:08:27.620 And may be achieved only with the intervention of your particular God. 137 00:08:29.080 --> 00:08:31.420 Unlike many who have given this oration before me, 138 00:08:31.540 --> 00:08:33.980 I didn't have the privilege of meeting Dame Roma. 139 00:08:34.400 --> 00:08:37.380 And can't share with you any anecdotes that you can't read for yourself. 140 00:08:38.300 --> 00:08:40.340 A slim connection I can make is that, 141 00:08:40.920 --> 00:08:43.500 45 years ago and a thousand miles apart, 142 00:08:44.360 --> 00:08:48.060 she and I each went to a Catholic day school called St. Aloysius. 143 00:08:49.960 --> 00:08:53.160 Sources suggest that Roma Mitchell may indeed have called on divine help 144 00:08:53.160 --> 00:08:54.400 in her quest for equality. 145 00:08:54.840 --> 00:08:55.820 Her biographers, 146 00:08:55.820 --> 00:08:58.900 say that a religious strand ran through her life. 147 00:08:59.000 --> 00:09:00.440 And she attended mass almost daily. 148 00:09:01.940 --> 00:09:06.000 I remain indebted to the Jesuits for the liberal education they gave me. 149 00:09:06.540 --> 00:09:09.420 But I confess, if that's an apt word, 150 00:09:10.220 --> 00:09:13.680 that while I am pursuing many of the same goals as Dame Roma did, 151 00:09:13.820 --> 00:09:15.200 I do so irreligiously. 152 00:09:16.480 --> 00:09:19.980 I'm going to outline first, very briefly, 153 00:09:20.160 --> 00:09:22.260 the limitations of our discrimination laws. 154 00:09:22.740 --> 00:09:25.800 When judged against the purported goal of social equality, 155 00:09:25.820 --> 00:09:30.820 I will then ask and answer my basic instinct question. 156 00:09:31.540 --> 00:09:32.700 And in light of that, 157 00:09:32.840 --> 00:09:35.760 look then at how social equality might be achieved 158 00:09:35.760 --> 00:09:37.460 other than through anti-discrimination laws. 159 00:09:38.460 --> 00:09:41.580 Australia's 11 federal, state and territory discrimination laws 160 00:09:41.580 --> 00:09:43.720 are known variously by three different names. 161 00:09:43.860 --> 00:09:47.060 They are either a discrimination law, an anti-discrimination law, 162 00:09:47.220 --> 00:09:48.460 or an equal opportunity law. 163 00:09:49.620 --> 00:09:51.940 Whatever they're called, their provisions are much the same, 164 00:09:52.060 --> 00:09:53.780 and by any other name, they would be as weak. 165 00:09:53.780 --> 00:09:57.880 Each of these laws proscribes certain conduct, 166 00:09:58.340 --> 00:10:02.500 making a clear policy statement that, at some times, 167 00:10:02.520 --> 00:10:05.120 in some circumstances, for some people, 168 00:10:05.220 --> 00:10:06.580 subject to some exceptions, 169 00:10:07.580 --> 00:10:08.580 it's wrong to discriminate. 170 00:10:09.560 --> 00:10:10.600 And to put it another way, 171 00:10:10.660 --> 00:10:13.600 a lot of the time, for a lot of people, in a lot of circumstances, it's okay. 172 00:10:15.360 --> 00:10:20.080 I spent years as a lawyer for people who had been treated unfairly. 173 00:10:21.080 --> 00:10:22.460 And I had to tell many of them 174 00:10:22.460 --> 00:10:23.760 that it's only against the law, 175 00:10:23.760 --> 00:10:25.580 the law if there's a law against it. 176 00:10:26.020 --> 00:10:27.140 And to be fair, 177 00:10:27.300 --> 00:10:29.540 anti-discrimination laws are against 178 00:10:29.540 --> 00:10:30.580 quite a bit of conduct 179 00:10:30.580 --> 00:10:33.040 in most areas of public life 180 00:10:33.040 --> 00:10:35.400 and for personal attributes such as 181 00:10:35.400 --> 00:10:36.880 race, sex, disability, 182 00:10:37.140 --> 00:10:38.440 age and sexuality. 183 00:10:39.840 --> 00:10:41.640 But my experience is that 184 00:10:41.640 --> 00:10:42.880 these laws and the individual 185 00:10:43.480 --> 00:10:44.660 remedies they offer 186 00:10:44.660 --> 00:10:46.460 are ends in themselves 187 00:10:47.620 --> 00:10:49.640 rather than seen as any 188 00:10:49.640 --> 00:10:50.940 part of a larger project. 189 00:10:50.940 --> 00:10:52.760 The end in itself 190 00:10:52.760 --> 00:10:54.220 of anti-discrimination law 191 00:10:54.220 --> 00:10:56.440 is proof of an instance 192 00:10:56.440 --> 00:10:58.780 of prescribed discriminatory conduct 193 00:10:58.780 --> 00:11:00.460 and then the awarding of 194 00:11:00.460 --> 00:11:02.080 remedy to the aggrieved person. 195 00:11:03.060 --> 00:11:04.760 But that ignores the place 196 00:11:04.760 --> 00:11:06.900 of anti-discrimination laws as a step 197 00:11:06.900 --> 00:11:08.860 on the path to achieving world 198 00:11:08.860 --> 00:11:11.060 peace. And I acknowledge 199 00:11:11.060 --> 00:11:13.020 that world peace probably isn't what you think 200 00:11:13.020 --> 00:11:14.520 of when you think of anti-discrimination laws 201 00:11:14.520 --> 00:11:16.760 and certainly it's not what I thought of as a 202 00:11:16.760 --> 00:11:18.960 busy practitioner of anti-discrimination 203 00:11:18.960 --> 00:11:20.860 law. But that is 204 00:11:20.860 --> 00:11:22.700 in fact the genesis of our discrimination 205 00:11:22.700 --> 00:11:24.820 laws. The primary goal of the 206 00:11:24.820 --> 00:11:26.780 United Nations is to maintain 207 00:11:26.780 --> 00:11:28.180 international peace and security. 208 00:11:29.040 --> 00:11:30.940 And to that end, the United Nations 209 00:11:30.940 --> 00:11:32.520 promulgated the Universal Declaration 210 00:11:32.520 --> 00:11:33.380 of Human Rights. 211 00:11:34.600 --> 00:11:36.680 Under that declaration and under the 212 00:11:36.680 --> 00:11:38.560 human rights treaties associated with it, 213 00:11:39.280 --> 00:11:40.640 countries of the world, including Australia, 214 00:11:40.880 --> 00:11:42.680 have accepted an obligation to guarantee 215 00:11:42.680 --> 00:11:44.900 to all persons equal 216 00:11:44.900 --> 00:11:46.960 and effective protection against 217 00:11:46.960 --> 00:11:47.660 anti-discrimination. 218 00:11:48.380 --> 00:11:50.520 The Race Discrimination Treaty explicitly 219 00:11:50.520 --> 00:11:52.420 recognises that discrimination 220 00:11:52.420 --> 00:11:54.480 between human beings on the ground of race 221 00:11:54.480 --> 00:11:56.560 is an obstacle to peaceful 222 00:11:56.560 --> 00:11:57.820 and friendly relations. 223 00:11:58.880 --> 00:12:00.120 Similarly, the Discrimination 224 00:12:00.120 --> 00:12:02.720 Against Women Treaty recognises 225 00:12:02.720 --> 00:12:04.320 that the welfare of the world 226 00:12:04.320 --> 00:12:05.920 and the cause of peace 227 00:12:05.920 --> 00:12:08.560 require maximum participation of women 228 00:12:08.560 --> 00:12:09.980 on equal terms with men. 229 00:12:10.320 --> 00:12:12.700 There is, however, a big gap between 230 00:12:12.700 --> 00:12:14.120 overcoming prejudice, 231 00:12:14.280 --> 00:12:16.340 guaranteeing equality and achieving 232 00:12:16.340 --> 00:12:16.980 world peace, 233 00:12:18.060 --> 00:12:20.420 in the sense that the Human Rights Treaty is anticipating, 234 00:12:20.520 --> 00:12:22.740 and the operation of our anti-discrimination laws. 235 00:12:23.620 --> 00:12:24.520 Discriminatory conduct 236 00:12:24.520 --> 00:12:26.540 is only the manifestation of 237 00:12:26.540 --> 00:12:28.540 something much larger and deeper. 238 00:12:29.640 --> 00:12:30.740 In her landmark 239 00:12:30.740 --> 00:12:32.020 book on discrimination law, 240 00:12:32.160 --> 00:12:34.520 The Liberal Promise, my colleague Margaret Thornton, 241 00:12:34.600 --> 00:12:35.960 who is one of Australia's great 242 00:12:35.960 --> 00:12:38.660 discrimination and equality thinkers, 243 00:12:39.460 --> 00:12:40.640 rightly decries 244 00:12:40.640 --> 00:12:42.700 the atomism of discrimination laws. 245 00:12:43.680 --> 00:12:44.480 The atomism that 246 00:12:44.480 --> 00:12:46.620 effectively separates the act of racial discrimination 247 00:12:46.620 --> 00:12:47.740 from racism. 248 00:12:48.400 --> 00:12:50.060 The act of sex discrimination 249 00:12:50.520 --> 00:12:51.100 from sexism. 250 00:12:52.200 --> 00:12:54.120 This is true, too, for the pervasive 251 00:12:54.120 --> 00:12:56.280 phenomena of ageism, homophobia 252 00:12:56.280 --> 00:12:58.640 and other forms of stereotyping and prejudice. 253 00:12:59.560 --> 00:13:00.360 The separation of the 254 00:13:00.360 --> 00:13:02.720 manifestation from its cause undermines 255 00:13:02.720 --> 00:13:04.480 the larger project of social equality. 256 00:13:04.960 --> 00:13:06.140 The nexus between 257 00:13:06.140 --> 00:13:07.700 anti-discrimination laws and 258 00:13:07.700 --> 00:13:10.240 the larger evil of prejudice is faith 259 00:13:10.240 --> 00:13:12.320 in the capacity of law to change 260 00:13:12.320 --> 00:13:13.620 not just behaviour, but attitudes. 261 00:13:14.860 --> 00:13:16.300 It is what Thornton describes 262 00:13:16.300 --> 00:13:18.140 as a belief in the ripple effect 263 00:13:18.920 --> 00:13:19.940 throughout society, 264 00:13:20.180 --> 00:13:20.500 so that 265 00:13:20.520 --> 00:13:21.640 the favourable resolution 266 00:13:21.640 --> 00:13:23.940 of individual instances of discrimination 267 00:13:23.940 --> 00:13:26.400 will be conducive to the diminution 268 00:13:26.400 --> 00:13:27.300 of prejudice overall. 269 00:13:28.080 --> 00:13:30.040 This idea is as hopeful 270 00:13:30.040 --> 00:13:32.420 and as spurious as trickle-down economics. 271 00:13:33.320 --> 00:13:34.380 And that analogy, 272 00:13:34.500 --> 00:13:36.320 I think, is apt at least to this extent in both 273 00:13:36.320 --> 00:13:38.440 cases the theory best suits those in power. 274 00:13:39.400 --> 00:13:40.260 The effectiveness 275 00:13:40.260 --> 00:13:42.420 of law as a means of achieving social ends 276 00:13:42.420 --> 00:13:43.660 is notoriously uncertain. 277 00:13:44.480 --> 00:13:46.400 Faith is placed in both legislation 278 00:13:46.400 --> 00:13:48.500 and litigation to bring about change. 279 00:13:49.140 --> 00:13:50.120 On legislation, 280 00:13:50.520 --> 00:13:52.540 laws are passed for a range of reasons, 281 00:13:52.640 --> 00:13:53.760 ostensible and actual. 282 00:13:54.460 --> 00:13:55.780 Criminal laws, for example, 283 00:13:55.940 --> 00:13:58.460 are a public statement of society's moral code 284 00:13:58.460 --> 00:14:00.580 and are intended to regulate behaviour 285 00:14:00.580 --> 00:14:02.460 by threat of punishment and opprobrium. 286 00:14:03.660 --> 00:14:04.720 A wide range 287 00:14:04.720 --> 00:14:06.300 of civil and administrative laws 288 00:14:06.300 --> 00:14:08.320 are an expression of social values, 289 00:14:09.140 --> 00:14:09.680 offering rights, 290 00:14:10.440 --> 00:14:12.080 entitlements and remedies that reflect, 291 00:14:12.320 --> 00:14:13.460 at least through Parliament's eyes, 292 00:14:13.660 --> 00:14:15.540 the way we'd like our daily lives to run. 293 00:14:17.160 --> 00:14:18.800 These laws are largely instrumental. 294 00:14:20.520 --> 00:14:22.760 They're intended to organise society in a particular way 295 00:14:22.760 --> 00:14:24.340 and to affect people's behaviour 296 00:14:24.340 --> 00:14:26.240 by inducing them to act in particular ways. 297 00:14:27.380 --> 00:14:28.840 So as, for example, to avoid 298 00:14:29.760 --> 00:14:31.880 harming somebody, breaching a contract and so on. 299 00:14:32.720 --> 00:14:35.080 And to a very large extent, criminal and civil laws 300 00:14:35.640 --> 00:14:37.840 achieve their behavioural modification aim. 301 00:14:38.040 --> 00:14:39.540 Most people don't commit crimes. 302 00:14:39.900 --> 00:14:42.760 Most people do avoid facing liability if they can help it. 303 00:14:43.060 --> 00:14:45.240 But what these laws have going for them 304 00:14:45.240 --> 00:14:47.680 is that quite apart from their operation and enforcement, 305 00:14:48.040 --> 00:14:50.380 there are social and cultural imperatives that push 306 00:14:50.380 --> 00:14:51.280 in the same direction. 307 00:14:51.540 --> 00:14:53.920 As social animals, it's usually not in our interests 308 00:14:53.920 --> 00:14:56.620 to commit crime or cause harm and loss to others. 309 00:14:57.360 --> 00:14:59.220 The effectiveness of most legislation 310 00:14:59.220 --> 00:15:02.200 is bolstered by the very large extent 311 00:15:02.200 --> 00:15:05.400 to which the laws reflect and promote prevailing social values. 312 00:15:06.080 --> 00:15:07.680 It's far from obvious to me 313 00:15:07.680 --> 00:15:11.760 that anti-discrimination laws enjoy the same impetus. 314 00:15:12.460 --> 00:15:14.320 Anti-discrimination laws more obviously 315 00:15:14.320 --> 00:15:16.240 fit into a category of symbolic legislation. 316 00:15:17.260 --> 00:15:18.960 Enacted as an aspirational statement 317 00:15:18.960 --> 00:15:20.360 of where we, or those who are in the public sector, 318 00:15:20.360 --> 00:15:21.980 who are in power, would like society to go. 319 00:15:22.680 --> 00:15:24.220 Whether society goes there 320 00:15:24.220 --> 00:15:26.860 turns on much more than merely enacting a law. 321 00:15:27.140 --> 00:15:28.940 And there is extensive research in the US, 322 00:15:29.120 --> 00:15:31.440 which colleagues and I hope to conduct here, 323 00:15:31.620 --> 00:15:33.140 that shows how law alone, 324 00:15:33.240 --> 00:15:35.900 without a broader campaign of social mobilisation, 325 00:15:36.180 --> 00:15:37.740 rarely affects social change. 326 00:15:39.540 --> 00:15:42.140 Commentators such as Thornton have already analysed in detail 327 00:15:42.140 --> 00:15:44.180 the limits of the individualised enforcement regime 328 00:15:44.180 --> 00:15:45.680 that support anti-discrimination law. 329 00:15:46.520 --> 00:15:49.040 To the limited extent that the intended ripple effect 330 00:15:49.040 --> 00:15:49.920 actually has effect, 331 00:15:50.360 --> 00:15:52.520 it's to prevent overt expression of prejudice. 332 00:15:53.680 --> 00:15:57.380 Most of us know now that there are things that can't be said. 333 00:15:58.540 --> 00:15:59.920 So people don't say things. 334 00:16:01.080 --> 00:16:03.200 But they still engage in prejudicial treatment. 335 00:16:04.860 --> 00:16:06.360 I've had clients in my office, 336 00:16:07.420 --> 00:16:08.420 refused a job, 337 00:16:08.480 --> 00:16:10.360 refused rental accommodation, 338 00:16:11.120 --> 00:16:12.240 refused a service, 339 00:16:12.820 --> 00:16:13.840 who say to me, 340 00:16:15.560 --> 00:16:18.040 no, they didn't say it was because I'm not white. 341 00:16:18.700 --> 00:16:20.340 They didn't say it's because I'm a scientist. 342 00:16:20.340 --> 00:16:20.700 They didn't say it's because I'm a single mother. 343 00:16:21.280 --> 00:16:23.560 They didn't say it's because I have cerebral palsy. 344 00:16:24.340 --> 00:16:25.140 But I know. 345 00:16:26.080 --> 00:16:27.000 I was there. 346 00:16:27.600 --> 00:16:28.540 I heard it. 347 00:16:28.940 --> 00:16:30.460 I saw it in their eyes. 348 00:16:30.640 --> 00:16:31.880 I heard it in their voice. 349 00:16:31.980 --> 00:16:32.900 I felt it in their body. 350 00:16:33.640 --> 00:16:34.940 In cases such as that, 351 00:16:35.080 --> 00:16:37.220 all that anti-discrimination laws have done 352 00:16:37.220 --> 00:16:40.420 is encourage behaviour that hides persistent prejudice. 353 00:16:41.640 --> 00:16:44.160 The old discrimination was overt conduct. 354 00:16:45.180 --> 00:16:47.380 The new discrimination is in fact just as old, 355 00:16:47.400 --> 00:16:48.200 but now revealed. 356 00:16:48.280 --> 00:16:49.840 The maintenance of cultural values, 357 00:16:50.340 --> 00:16:51.080 that entrench inequality. 358 00:16:52.420 --> 00:16:54.860 Faith placed in legislation to achieve social change 359 00:16:54.860 --> 00:16:55.920 is largely misplaced. 360 00:16:57.000 --> 00:16:58.800 So too, in my experience, 361 00:16:59.100 --> 00:17:00.280 is faith placed in litigation. 362 00:17:01.420 --> 00:17:03.520 Australian courts have persistently failed 363 00:17:03.520 --> 00:17:05.040 to give effect to the beneficial aims 364 00:17:05.040 --> 00:17:06.180 of anti-discrimination laws, 365 00:17:06.400 --> 00:17:08.800 further limiting what usefulness they may have. 366 00:17:09.100 --> 00:17:11.900 I wrote to mark the 25th anniversary 367 00:17:11.900 --> 00:17:13.380 of the Sex Discrimination Act 368 00:17:14.000 --> 00:17:16.940 that the High Court's anti-discrimination jurisprudence 369 00:17:16.940 --> 00:17:19.120 is a sad example of the failure to have regard 370 00:17:19.120 --> 00:17:20.320 to the aims of the legislation 371 00:17:20.340 --> 00:17:23.040 and other superior courts have been little better. 372 00:17:23.620 --> 00:17:25.080 They have been highly technical 373 00:17:25.080 --> 00:17:27.440 and out of touch with the spirit of the legislation, 374 00:17:27.740 --> 00:17:30.040 overturning decisions of trial courts and tribunals 375 00:17:30.040 --> 00:17:31.640 because of disagreement over the meaning 376 00:17:31.640 --> 00:17:32.720 of the statutory provisions 377 00:17:33.280 --> 00:17:35.220 without regards to aims and purpose. 378 00:17:35.900 --> 00:17:37.520 My colleague at Melbourne University, 379 00:17:37.760 --> 00:17:39.680 Beth Gays, points out that the narrow approach 380 00:17:39.680 --> 00:17:40.900 of the High Court has been followed 381 00:17:40.900 --> 00:17:43.060 with wholeheartedness by the lower courts, 382 00:17:43.220 --> 00:17:45.400 even to the extent that a Federal Court judge 383 00:17:45.400 --> 00:17:46.400 said in 1997, 384 00:17:47.220 --> 00:17:48.200 not 1977, 385 00:17:49.460 --> 00:17:50.320 it is not a matter of the court 386 00:17:50.340 --> 00:17:50.360 of the High Court, 387 00:17:50.360 --> 00:17:51.760 it is not appropriate to consider the question 388 00:17:51.760 --> 00:17:53.460 of reasonableness in discrimination law 389 00:17:53.460 --> 00:17:55.560 by commencing with a view that human rights 390 00:17:55.560 --> 00:17:57.760 and discrimination law should be liberally construed. 391 00:17:58.300 --> 00:18:00.260 Nor is it correct to approach the meaning 392 00:18:00.260 --> 00:18:02.060 of reasonableness informed by the objects 393 00:18:02.060 --> 00:18:04.060 and purposes of a discrimination act. 394 00:18:04.220 --> 00:18:06.020 In a comment that reflects my own experience 395 00:18:06.020 --> 00:18:07.360 as an anti-discrimination lawyer, 396 00:18:07.620 --> 00:18:09.940 Gays observes that some very narrow 397 00:18:09.940 --> 00:18:11.560 and technical distinctions have been introduced, 398 00:18:11.740 --> 00:18:13.680 making success more difficult for complainants 399 00:18:13.680 --> 00:18:15.500 and discouraging the bringing of actions. 400 00:18:16.200 --> 00:18:17.520 Thornton is typically direct. 401 00:18:20.340 --> 00:18:20.440