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Free but not equal

04 June 2013

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Margaret Thornton is Professor of Law and ARC Professorial Fellow at The Australian National University in Canberra.

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In today’s neoliberal world freedom may be taking away our right to be treated equally, writes MARGARET THORNTON.

The twin values of liberalism, contemporary Australia’s prevailing political philosophy, are equality and freedom. This is liberalism with a small ‘l’, with its focus on civil liberties and the rights of individuals; values of which are supported by the major parties and the Greens. But while equality and freedom have an ancient lineage their meaning is shaped by time and place.

The contemporary understanding of equality is that every citizen has the same rights and entitlements as every other citizen regardless of race, sex, disability, sexuality, age or other feature of identity. Nevertheless, as equality is an ideal rather than a reality, anti-discrimination legislation has been enacted to ensure a certain level of equality between citizens. The legislation provides an avenue of complaint for those subjected to discrimination in specified areas of public life, as well as promoting equality through community education.

Counterbalanced with the principle of equality is that of freedom, or liberty. Today, a cluster of familiar freedoms are valued, including freedom of speech, freedom of belief, freedom to associate, freedom to travel and so on. These freedoms are not guaranteed by an official instrument such as the Australian Constitution or a bill of rights but are implicit in liberal democratic government - although some freedoms have been judicially recognised.

What is notable about the relationship between freedom and equality is the constant tension between them: when freedom is in the ascendancy, there is a struggle for equality and vice versa. Historically, equality has played second fiddle to liberty. It is really only after the Second World War that it has grudgingly been accepted that people stigmatised by virtue of characteristics over which they have no control should receive equal treatment. It is the responsibility of the liberal state to implement some sort of redress.

The incremental passage of legislation at the federal level nevertheless points to the timidity surrounding state responsibility. Over the last few decades we have seen government take small steps to ensure equality: race in the 1970s, sex in the 1980s, disability in the 1990s, age in the 2000s and sexuality in the 2010s. In regard to the latter, an amendment to the Sex Discrimination Act has only recently been tabled to disallow discrimination in respect of sexual orientation, gender identity and intersex status. The amendment is presently before the Senate Standing Committee on Legal and Constitutional Affairs which called for public submissions in order to report to parliament.

Today, the embrace of neoliberalism has seen a greater emphasis on freedom, particularly freedom within the market, which has induced something of a retreat from equality. Most notably, employers have sought greater freedom from regulation in terms of who they employ and the conditions under which they employ workers.

In fact, the ill-fated Human Rights and Anti-Discrimination (HRAD) Bill 2013, recently abandoned by the Gillard Government, emerged largely as a result of pressure from employer groups to reduce regulation and ‘red tape’. A major aim of the Bill was to effect a consolidation of five separate Acts that had emerged over four decades with numerous discrepancies and inconsistencies.

The draft bill was trenchantly attacked on the ground that it constrained freedom, particularly freedom of speech. Criticism focused on the extension of the vilification provisions in the Racial Discrimination Act to other grounds because of the outcry over Eatock v Bolt in 2011, which related to several newspaper articles and blogs published by journalist, Andrew Bolt, and the Herald & Weekly Times. Bolt was found to have engaged in conduct reasonably likely ‘to offend, insult, humiliate or intimidate’ a group of fair-skinned Aboriginal people by making derogatory imputations about their Aboriginality. This case is a classic instance of the way freedom is pitted against equality

While equality may have triumphed in the Bolt case, the political pendulum could be about to swing back to freedom more forcefully. Following the withdrawal of the HRAD Bill by the Gillard Government, the Shadow Attorney-General, the Hon George Brandis SC, signalled his intention to shift the focus of the Australian Human Rights Commission away from anti-discrimination legislation towards positive rights and freedoms, particularly freedom of speech, if the Coalition were to be elected in September. This is despite the fact that the primary function of the Commission since its inception has been to administer the anti-discrimination Acts.

Strictly speaking, no one can be against freedom, but to privilege it over equality invariably favours those with property, power and influence. Mr Brandis’ proposal therefore does not bode well for a society still struggling to come to terms with the long history of exclusion and discrimination against disfavoured others. Once the political pendulum points firmly towards freedom, it is very hard to shift.

Margaret Thornton is an ANU Public Policy Fellow and a Professor of Law in the ANU College of Law. She will be presenting on this subject at ANU Public Policy 2013 which runs from Wednesday 5 June to Friday 7 June at the Crawford School of Public Policy: https://crawford.anu.edu.au/policyweek/

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