‘Anti-Discrimination’ Law; Defining what ought be regarded as ‘Discrimination’ and the legal processes in adjudication.
Ms. Linda Kerri (Baccaul-)Petrie
Independent activist for the LGBTI Communities of Australia
13th November 2010
In the 1940’s an American reporter asked Mahatma Ghandi on his return to India from talks in London, “Well Mahatma what do you think of Western Civilization?” to which he replied, “I think it would be a good idea”.
The development of ‘Civilization’ is civilizing process.
And especially socially evident of that process in Australia, since the end of the second world war and from the 1950’s through the sixties and earlier decades shortly thereafter, is the growth in civilized attitudes towards the recognition of how we respect and in turn treat other people….and in turn a growing realization about the nature of what is offensive to other human beings and increasingly ‘Naming’ and outing those offensive behaviors in Law.
My uncle at once both vivified by his support for my transgender difference and sickened by realizations about the narrow mindedness of more than the majority of Australians he has rubbed shoulders with for more than 70 years last night pointed out he now recalled, at exclusive Sydney Eastern Suburbs college we both attended, how boys who were simply born left handed were branded ‘cacky handed’….not just by the boys but also equally held in disdain by the teachers and often punished and caned for any failure in their efforts to adopt right-handedness and ‘be normal like everyone else’.
Along with that derision was a palpable insinuation that they were also altogether ‘queer’ with suspect homosexual tendencies because of their oddity.
Left handed = ‘Cacky’ handed = limp wristed = ‘a queer!’.
It was through these decades the ‘Myth’ of the family existed, pristine and unquestionably unchallengable ‘Behind Closed doors’.
The ever so popular ‘larrikenism’ of the Australian bloke was never so evident as colloquialisms that light-heartedly painted his world. Especially while ‘at the pub’ with ‘his mates’ –
‘The Man’ was the ‘bread winner’ and could do no wrong. ‘The Woman’ was ‘The Misses’; mother to ‘the Kids’, ‘chained to the kitchen sink’. ‘The Kids’ were to ‘be seen but not heard!’. Everything was honky-dory!
But something clicked in the civilizing Australian society’s conciseness increasingly beyond the ‘60’s and the paper thin veneer of this ‘Normal’, she’ll be right mate’, world shifted as individuals formed groups to say “You say ‘Fair Go!’ Well what about a Fair go for all?!”.
Indigenous Australians were given the vote and women (at least in principle on paper) equal wages to men.
The cracks in the doors of the unquestionably ‘happy family home’ began to open and domestic violence spilled out into the open reality of everyday Australian life and not only to be unearthed in the ghettos but on every level of our society.
Women’s refuges and Government Domestic Violence Response Units of some description mushroomed into what appeared to be an epidemic of domestic violence and Child Abuse but in reality was simply being unveiled.
In legislation was reviewed to create a ‘Civilized’ response to this ‘new’ syndrome and legal provisos adopted with new terms like ‘battered wives syndrome’.
Meantime as I write it is 2010 and only now not only in Australia but civilizations around the globe are waking up to the flim-flam churches have played where Child sexual abuse is concerned, pulling the wool over parishioners and community’s eyes with a pat on the head, and an “It’ll be OK say a few Hail Mary’s and try your best to forget about it”
But the civilizing process is a slow one and steeped in the good old concepts of the past so in parallel with battered wives syndrome some at the Bar thought it would be equally civilized if other apparently genuine syndromes were tagged and thus the ‘Homosexual Advances Defense’.
Discrimination cases hiding their light under a bushel?
Now ‘Civilization’ is awakening to new words entering into the legal vernacular as well.
First the torch of ‘Child Abuse’ shone light onto that happening daily in the schoolyard ‘Bullying’ as well.
Now adults are complaining that this happens in ‘workplace bullying’ as well and tday a Nurse in a Gold Coast hospital (off on ‘stress leave’ and workers compensation apparently as a result) is reported with the potential of a large compensation pay out as a result.
Civilization wakes up even more to realise how the former 1950’s office and workplace ‘passes’, like those which make the hub of the weekly stories in shows about those times like ‘Mad Men’ are no longer viewed innocently any more. The results we now well know, after decades of hindsight, have created havoc, humiliation and wrecked career paths in the lives for not only women but sometimes targeted men. ‘Workplace bullying’ is understood to extend to ‘unwanted sexual advances’.
Now the apparently careless ‘Inappropriate (workplace?) Sexual Advance’ can result in settlements in six figure (or even larger) sums as has been seen in a much Australia-wide publicized case in October 2010.
But still successful anti-discrimination cases rarely reach more than the tip of the iceberg reporting by comparison. Just not as ‘sexy’ for Australian media (the real spinners of social change and acceptability) as the juicy sexual advance or the overt case of workplace bullying or the sensational sister ‘Whistle-blowing’.
From just one of the cases I took against a major unnamed media network about which I was sworn to secrecy and not publicize, (wherein during an one hour conciliation process the presenter concerned not only promised to not even appear homophobic but the network itself henceforth in fact brought about a ground-swell pro-‘gay’ community change in programming since), it appears to me that the threat of exposure as prejudiced or homophobic for example, is as real and realised as the devastating effects are now on its victims.
It’s my hope that everything will be done by the ARHC through this consultation process to raise the profile of anti-discrimination cases and have them put on the map as equally socially noteworthy as their ‘sexy’ inappropriate workplace sexual advances’ cousin?
Who Is a Victim?
Kevin Rudd MP, ‘Kevin07’ still then when I interviewed him about the Labor Party’s platform on LGBTI issues and same-sex ‘Marriage’ lamented, (after I had described the bullying and harassment against us in schoolyards and workplaces across Australia the day after Archbishops, church spokespeople or John Howard et al published dissenting views about the value of LGBTI people), shaking his head as we sat on some garden chairs at a sunny park in Brisbane’s Camp Hill, “(you know) mate I simply can’t stand discrimination against anyone on any grounds!”
And he was right and in fact spelt out the case I put here in this paper.
Discrimination ought be discrimination against anyone and on any grounds.
Yes now ‘Discrimination’ is the Physical ‘Offence’ to be recognized by our civilizing Australia is ……..against any one on any grounds.
And it is physical. It happens in the ophysical world as much as any other criminal offence.
If it didn’t the victim would not be aware of its occurrence.
And it is the ‘offence’ which requires re-defining and not the least also to be expanded to non-inclusion to also encompass ‘deliberate exclusion’.
I maintain that Discrimination DOES NOT requireany definition ‘On The Basis Of’ as it is to date but ought include any discrimination of a person, or group of persons, against a person, or a group of persons, by words, non-inclusion, deliberate exclusion, harassment, violence, or inciting violence in an event described. The finer details later.
‘On the basis’ of is in itself discriminatory since it places the onus of proof, and ‘personal disclosure’ on the person/s offended to prove their own difference which supposedly (they guess?) gave rise to an Offense rather than more reasonably having to define the Offensive action alone and its perpetrator.
Yes but what about proving ‘Motive’?
When Law isn’t quite ‘Law’ but a ‘misdemeanor’?
“sticks and stones may break my bones but names will never hurt me”
I regard the Attorney General’s November announcement to expand the definitions of ‘Domestic Violence’, another of these recently ‘named’ areas of Law, with interest and suggest the same for Discrimination –
Review, expansion and re-definition of the offence of Discrimination?
Criminal violence often comes down to a focus on the type and level of the violent act.
For example, a man breaks into a home and the owner shoots him causing him serious injury. The jury/Judge/Magistrate considers was the level of violence used to repel or control the burglar excessive or justifiable.
The only time the jury/Judge/Magistrate is asked to consider the sex or race of either party is to assess if since it was a female home owner and her degree of repelling force may have had to be slightly excessive to repel a more powerful male aggressor or if the race of either accentuated the violence through prejudice.
In other words acts of violence usually focus on the act, type of act, level of aggression or violence and finally on motivation.
If it was an act of violence, or to the extreme murder, then that is the offence with varying level of punishment in law for each no matter who it was doing what to whom. (Except where the offence is that of an adult against a minor)
While it remains in ‘Discrimination’ the focus is on the defendant and the establishment of their difference OR in other words focus relies heavily on a ‘Motivation’ for the offending act to prove the existence of an offence whereas in other areas of law ‘Motivation’ is the focus of probable cause for the offence; the offence being the violent or hurtful act.
I maintain that this is because a proper draft of discriminatory offence has not been identified and set down in law.
You will note that in anti-discrimination legislation the offences read that, for example, it is an offence to discriminate against some person ‘on the grounds of sex, race, gender, sexuality etc.’ and then where that offence occurred as in ‘the workplace, schools etc., etc.,’ although for what reason deceives me!
In other jurisdictions do you have ‘the murder occurred on a bridge or a street or a market place’, for example, and therefore it doesn’t count since it occurred in a public place or count as much?
It doesn’t matter where the offence took place other than influencing impact or intent of the offense as in ‘he threw the man off the 6inch gutter’ as opposed to ‘he threw the man off a 30 foot cliff’.
Do you have in the civilized world ‘what was the color of either the defendant or accused because if one was black or gay or Christian or Jew or Muslim then it wouldn’t be considered a legal offence’?
The offence happened by any person against any person other than, for example, to prove likely motivation or added motivation for the ferocity of an attack as in, ‘he kept on hitting the man who had jumped the red light and wrecked his car because he hated Negroes anyway’ the law simply regards it as between two of more defendants and accused.
And this example brings me to another aspect of my point exactly.
A man seriously assaults another man in the street because the assailant is part of a gang out to find and kill Negroes or likewise in a gay haunt of town like Spring Hill Brisbane trying to locate and assault ‘poofta’s’.
There is no doubt about the criminal offence, ‘serious assault with ‘x’ weapon’, for example.
The cause for the attack, racism or hate crime and homophobia, comes into it as part of the ‘motivation’ of the attack.
But till now completely unreasonably it seems, if the assailant doesn’t lift a finger against the defendant, but only uses names or refuses entry, it is not an act of aggression and in law turns completely on its head and looses focus on the ‘Offence’, the ‘type of offence’ or the ‘degree of the offence’?
In deed Discriminatory ‘Offences’ themselves are not even clearly categorized or individually defined and it all comes down to focus on, not only the difference of the defendant but also the ‘depth of difference of the defendant (as in full-time transgender person as opposed to cross-dresser out on the town) and worse still the fact of where the offense took place as an apparent incidental contributing factor against it (as in at school, at a nightclub or in the street).
Suggested redefinition’s and expansion of “Discrimination’ :-
Oxford, Visuwords and other online dictionaries all put the definition of ‘Discrimination’ similarly:-
Discrimination : 1a ‘recognition and understanding of the difference between one thing and another’:
‘discrimination between right and wrong’: ”young children have difficulties in making fine discriminations”
2b: ‘the ability to judge what is of high quality; good judgement or taste’: “those who could afford to buy showed little taste or discrimination”
[as modifier] :
3: Psychology – ‘the ability to distinguish between different stimuli’:
However this definition, understanding and usage of the word morphed in recent times to:-
1). Discrimination - 'unfair treatment of a person or group on the basis of prejudice'
2). Discrimination - ‘the unjust or prejudicial treatment of different categories of people, especially on the grounds of race , age, or sex’: victims of racial discrimination ; discrimination against homosexuals:
Quite a complexity of meanings for one little word to have to adopt and convey:-
Firstly To discriminate through assessing the differences between people between (one individual or group and another);
Then secondly to also make value judgements weighted by sometimes purely subjective arbitrary opinion;
Third and finally to further still to go on and in some way unfairly act upon those judgements.
Thus when broken down into its components the act of discrimination entails three processes –
1) observing the difference, or even a ‘presumed’ difference of one person or group;
2) presumably engaging some level of ‘Prejudice’ in the assumptions about the individual (or group);
3) acting upon the sum total of the first two processes to verbally, in writing, or through violence or harassment (of some potentially many forms) prosecuting these beliefs on to the subject/s.
a). the act of verbally or in text, uttering or writing vilifying, abusive, opprobrious, sarcastic, derisive, mocking, sneering, satirical, scurrilous, maligning, disparaging, subverting, defiling, indignifying, socially or personally undermining, esteem-damaging and/or demeaning, personally and/or emotionally injurious, profaning or socially desecrating public profile, and/or otherwise generally publicly ridiculing remarks made against another because of any aspect of a person’s being*1 and/or appearance, or the ‘presumed’ aspect of a person’s being;
(*1 where ‘Being’ is – the physical attributes or mental state of an individual from birth and/or the way they are at the time of the offence.)
b). ‘Inciting Hatred or violence’– an act which does, or seeks to incite hatred, violence, exclusion or non-inclusion anywhere against another because of any aspect of any person’s being and/or appearance, or a presumed aspect of a person’s being;
c). ‘Exclusion’ - an act which does, or seeks to exclude from an establishment, club, organization, group of people, school, service, accommodation or employment of another on the basis of any aspect of a person’s being and/or appearance, or a presumed aspect of a person’s being;
d). (Note New) ‘Non-inclusion’ - an act which seeks to, or leads to exclusion, or deliberate non-inclusion in any way made because of an aspect of a person’s being or a presumed aspect of a person’s being where all people would otherwise be naturally recognised and included.
(e.g. ‘It was shown that four Dictionary publishers had deliberately excluded the term ‘Transgender’ from their texts for schools’).
BUT these points, 3a). to 3d)., deal with only the third aspect categorizing the types of acts which the perpetrator/s of discrimination is/are likely to be guilty of engaging in?
However we have not yet established the ‘Motivation’ for the act of discrimination, the first and second actions in the process of the complex of meanings for the term ‘discrimination’.
Perhaps this has been the root cause for the focus on the types of groups of people commonly discriminated against (LGBTIs, Religions, Race etc.) since it may seem simpler to do so than to try and climb inside a perpetrator’s head and find out what goes on with them/him/her psychologically?
It has been my not small amount of experience though through my 56 years of cognitive experience both as an individual with the difference of transsexuality and as a counsellor and not the least also in my roll as a NSW Court’s Sheriff’s Officer, to find that if one scratches the surface of one prone to prejudice of one type to likewise find them at the same time prejudiced against a multitude of other groups and individuals of difference simultaneously.
Having said so I go back to my original argument that discrimination is by anyone against anyone and further it is not relevant what grounds the prejudiced offender exercises the discrimination….discrimination is discrimination.
However where ‘Motivation’ is required to be established in Law one needs go no further by charging the offending perpetrator to answer the question - “on what grounds did you carry out the act”?
1). If no answer is forthcoming an act of pure unjustifiable ‘Discrimination’ is understood to be proven;
2). If the answer comes identifying what the perpetrator thought or assumed about the victim an act of pure ‘Discrimination’ is understood to be proven along with the grounds for prosecution of the act of discrimination;
3). If the answer comes identifying a reason why the perpetrator thought the ‘Discrimination’ was justifiable an act of ‘Discrimination’ is understood to be proven, along with the grounds the act of discrimination.
Thus ‘Motive’ for the offending action becomes the accused’s responsibility to justify rather than being an onus on the defendant to prove by potentially causing them embarrassment by having to highlight and describe their difference as being probable cause for the accused’s discriminating action/offence.
As well then my suggestion goes to the Process of establishing an act of Discrimination to regarded in three parts:-
A). a decision by the Anti-Discrimination Commission concerned (State or Federal) establishing that the defendants case for an act of discrimination being established and acknowledged as reasonable;
B). a writ from the Anti-Discrimination Tribunal concerned (State or Federal) requesting the alleged perpetrator to state cause on what grounds they believe they ought not be prosecuted with the act of discrimination on the grounds as laid out by the defendant.
C). Judgement the Anti-Discrimination tribunal concerned (State or Federal)
The bottom Line:- I ask the Australian Human Rights Commission to consider a last couple of points.
One is I note your consultation process’s in Sydney and Melbourne regarding discrimination on the grounds of ‘sex and gender’ and the groups and individuals who were invited there, especially those of the fringes of the ‘norm’ of different gender expression and appearance and even ‘why’ they are so. To me most inappropriate.
Did you the Commission feel it necessary to hold parallel consultations with Chinese, Indian, or those of other race to discuss the discrimiantion against them?
Any discrimination against them seems ‘proven’ on their national appearance be they Australian born citizen or not.
In Law it seems clear that the entire process rests entirely on the nature and/or being of those discriminated against and NOTthe nature of the offence as clearly defined as one of Discrimination’. To this I emphasize that this is because not enough ground work has been done in defining exactly what constitutes a discriminatory action, deed or word. Two is on the topic of ‘non-inclusion’ being previously disallowed by not only the Federal Anti-discrimination Commission at he time, but also three State Commissioners as well, as being considered not acceptable as a genuine ground for an action in the case of four of Australian publishers of dictionaries where they had deliberately excluded the terms ’transgender’ and ‘transsexual’ in their works for schools and middle school years students in 2006-7 which action I undertook at length. (Oxford did re-publish the following year including the terms after my efforts).
In any society or group, deliberate outcast is an extremely painful and potent tool whether it be workplace mates giving one ‘the cold shoulder’ or perhaps even more painful and hurtful in the school yard.
The hurt of such ex-communication can go deep and last for decades psychologically scarring and individual, or in deed a group, for a lifetime. Societies in the past have leveled the punishment of ‘banishment’, (‘national discrimination’) as equal to the death penalty.
I commenced with a quote from the venerable pacifist peace maker Mahatma Ghandi.
So to conclude I give you some examples where ‘Snubbing’, (deliberate socially prejudiced exclusion) have in fact precipitated such hurt against a national ‘Group’ such deep resentment and hatred and feelings of deep hurt, that they have in fact precipitated world conflict…….
On the eve of the division by the victorious nations of World War I, at Versailles, the train carrying Prince Faisal Bin Musa'id, representing the combined representatives of the Arab states, soon thereafter to become the United Arab Emirates, Palestine, Kuwait, the Yemen etc., was deliberately side tracked on a branch rail line making it impossible for him to attend the political divide-up of ‘the new world’ which included his homeland, the middle –eastern countries which had supported them with the help of Col. Lawrence (of Arabia) especially in their crucial campaigns against the Germany supporting Turkish nation. The Prince and the Arabs were humiliated.
Sort of precipitated Arab western world antipathy toward ‘the white West’, an established feeling of ‘racism’ which goes on till this very day. No?
Germany too was treated as ‘less valued’ in Versailles the process and treated, if not snubbed, like a bunch of second rate citizens. ‘Unfair treatment’ of one group against another; one group felt ‘snubbed’ ergo? Hitler and the Second World War.
And finally, a shameful ‘snubbing’ of someone who felt they were ‘apart of the crowd’ and expected to ‘be included’ and not one that many in the western world have published so far and wide.
At the end of WWI the Japanese were still a respected and allie with one of the best most formidable navies in the world even then. Right here in Australia the combined fleets of Great Britain, the USA and Australia gathered in our greatest and largest naval harbour of Albany at the tip of southern Western Australia.
The Japanese fleet, after sailing here to participate, were told they weren’t required. To a race to whom loss of face is tantamount they took their non-white, yellow skin, slant eyed sailors home totally humiliated. This was the water-shed in their turning point of understanding how the western race really felt about them 15 years before they outraged the USA at Pearl Harbour.
‘Non-inclusion’isn’t too ‘subtle’ discrimination to chart, name, define and include…..it is essential, it is hurtful, deeply deeply humiliating and can be soul destroying….for a group and especially for an individual or a school child.
Thank you for your attention.
Linda Kerri (Baccaul-) Petrie
Counsellor, Cert Lvl IV, Workplace Assessment & Training.
Independent activist for human right & the LGBTI communities of Australia