MRC Executive Director Nick Cater writes in The Australian:
How do you stop public officials spoiled with power roughing up people to teach them a lesson? You give them more money, says Michael Duffy, an architect of the racial vilification laws that the Australian Human Rights Commission invokes to slap down transgressors.
The lack of natural justice afforded to the accused is the subject of a parliamentary inquiry. Duffy conceded last week that the process he helped design could be improved, but the commission needed more resources.
The former attorney-general surely has been following public affairs for long enough to know what happens when governments throw good money after bad. Yet those who build their political career discovering wrongs that must be righted are seldom given to reflect on the fruits of their labours, however rancid they turn.
Dispassionate observers cannot fail to notice the rotten condition of the commission, the bureaucracy charged with enforcing the Racial Discrimination Act with its ill-judged amendment outlawing words that might — just might — hurt someone’s feelings.
The act’s assumption that the commission can be trusted to remain dispassionate, immune from self-interest and resistant to self-aggrandisement has been destroyed by its disgraceful handling of a complaint against three Queensland University of Technology students and a separate case against The Australian’s Bill Leak. A joint parliamentary committee is considering whether the act should be changed or the commission reformed to prevent public officials torturing innocent citizens with process.
There is no easy fix. The commission was a bad idea to begin with and it has only got worse. It will continue on its unjust and illiberal path until it meets a parliament brave enough to strip its powers and withdraw its funding. In other words it should be abolished.
With the benefit of hindsight it is hard to imagine why anyone expected an extrajudicial body set up to police moral conduct would ever work. One senses Gough Whitlam had his doubts when he announced the creation of the Commission for Community Relations, the AHRC’s predecessor, in 1975.
“It is of course extraordinarily difficult to define racial discrimination and outlaw it by legislative means,” said Whitlam. “Social attitudes and mental habits do not readily lend themselves to codification.”
Indeed not. Whitlam’s legislation and its strengthening by the Keating government two decades later were mere gestures; no one imagined that they would eliminate prejudice, but the moral crusaders insisted that something had to be done about racism. It was an evil against which there ought to be a law.
Rules to modify human behaviour don’t always turn out as badly as this one. Conduct that is widely frowned on and simply defined — spitting in the street, for example — succumbs easily to legislation that can be enforced by the police. Yet a government would be asking for trouble if it established an autonomous commission to enforce rules against public expectoration of saliva and gave it $15 million a year to do so, $3m of which was allocated to top executive salaries.
They’d be at us for clearing our throats because we all know where that leads. Their drive to outlaw spittoons in the workplace would force James Halliday to choose between the wrath of the commission and arriving home legless.
Single-issue enforcement bodies such as the AHRC struggle under a paradox. On the one hand, they must persuade the public that the evil they are supposed to deal with is being dealt with adequately. On the other hand they must demonstrate that the problem is worse than ever to justify their jobs.
Commissioners cannot be trusted to act as neutral umpires. How could they, when the existence of the body they serve and the security of their $350,000-plus depends on the persistence of the evil they are charged with eliminating?
In a classic study of moral crusades published a half-century ago, sociologist Howard Becker noted that enforcement officials adamantly assert that the problem they are supposed to deal with is still with us and is likely getting worse.
They are also inclined to take a dim view of their fellow human beings since, if human nature were perfectible and people could be permanently reformed, their jobs would come to an end.
A good deal of their time is devoted not to enforcement but to coercing respect. A person may be labelled as deviant not because they have broken a rule, but because they have shown disrespect.
Becker cites a study of policemen in a small industrial city in the US where 37 per cent of officers thought it was OK to give someone a touch up if they showed disrespect.
“You’ve gotta get rough when a man’s language becomes very bad,” said one respondent. “That’s the only way to set a man down, to make him show a little respect.”
Becker’s insight into enforcement bodies in general helps explain the extraordinary conduct of the AHRC in the Leak and QUT cases. In both cases the accused protested their innocence, challenging the commissioners’ presumed powers to decide what was racist and what was not.
Both took their cases to the public to expose the fragility of the AHRC’s claims and to question its authority.
The commissioners responded to their insolence like small-town policemen, meting out a little extrajudicial justice of their own. The process became the punishment; they were obliged to file pleadings, affidavits and submissions, costing them time, money and stress.
It is hard to escape the conclusion that the AHRC is beyond redemption. The commissioners are not the problem, nor even the laws they enforce. It is the institution itself. When officials are granted not just the power to enforce the rules but autonomy and discretion, it is only a matter of time before they go rogue.
Abolishing the AHRC may not be the recommendation the parliamentary committee is looking for. But if it is hoping for a more easily digestible solution, it is bound to be disappointed.