Earlier this week, Emma Alberici interviewed our new Freedom Commissioner Tim Wilson on Lateline, an interaction worth unpacking for its insights into the wilful naïveté of the libertarian worldview.
In response to Alberici’s question about the best way to protect an individual excluded from employment or refused service on racial grounds, Wilson queried the value of anti-discrimination legislation, stating (no doubt correctly) that often “if people want to discriminate against somebody on the basis of their skin [colour]… they find some other reason to do it and they keep their prejudice to themselves”.
Anti-discrimination legislation is a blunt tool, insufficient to change minds as well as behaviour, and it has been criticised from both left and right on this basis. Direct discrimination can also be very difficult to prove, and anti-discrimination legislation can fairly be viewed as necessary but not sufficient. Wilson mused, though, that he would rather:
"[H]ave people be open about their prejudice, so that people can shine a bright light into dark corners and to expose people for their discrimination, their prejudice and why it exists and also for it to be challenged, because when you look at people who have prejudice deep in their heart, if you tell them they can't exercise that, all they do is go off into the corner and maintain their prejudice in their heart, rather than interacting, learning and growing and having it challenged by people who outline why it's so foolhardy."
This benevolent view ignores the concrete realities of, say, a member of a racial minority unable to buy a drink, denied a room at a hotel or discriminated against in the workplace. These experiences are deemed less important than “shining a light” on prejudice. The possibility that one’s ill-treatment may provide a bigot with a teachable moment must seem cold comfort in the face of a need for a meal, a job or a place to live.
Presumably, of course, most people would prefer not to patronise establishments owned by people who secretly hate them. It's a point often made by opponents of anti-discrimination legislation (surely you don’t want to give your money to a racist?) and one that ignores the fact that we don't always have that much of a choice. Australia is a big place and plenty of towns have only one pub, petrol station or pharmacy. Would it be reasonable, for instance, to allow small businesses in the Nullabor to refuse to serve anyone of their choice who happens to be driving between Perth and Adelaide?
Alberici’s query as to how marginalised people might fight back against discrimination without the backing of legislation elicited a rather fudged response.
Firstly, Wilson considered this depended on the discriminator’s identity, as “if it's government, it's a very different situation than if it's a private individual”, a conclusion systematic of the sort of delusion which sees any kind of appalling treatment by individuals and corporations as paling into comparison to the terrifying machinations of a democratically-elected government.
Further, assertions that individual rights to freedom of association can be exercised independently of government also fall down when one considers how such rights might be enforced. As the American political economist Matt Bruenig writes with respect to the appalling anti-LGBTI bill currently before the Kansas legislature:
"Since it is the state [in the form of the police]that is ultimately tasked to bring out the violent enforcers who effectuate the discriminating intents of public accommodations providers, the state literally cannot get out of the way. It will either grant to public accommodations the right to direct the state’s violence against people solely because they are gay or it will not."
Bruenig concludes: “things we often call private discrimination aren’t actually very private at all”.
In addition, private businesses can only operate because of the society that we, collectively, have built. Pubs wouldn’t function without infrastructure (including roads and electricity), a police force to prevent Mad Max scenarios, and a legal system to enforce contracts with suppliers: these are all creations of a society, not an individual.
The right of a business-owner to run their enterprise as they see fit must be balanced with the interests of the community that created the opportunity for its existence. This means you can't run a company hiring child labour at 50 cents an hour to grind up asbestos and throw it into a stiff breeze, and you can't just decide not to serve certain types of people, no matter how many Ayn Rand books there are on your nightstand.
Nevertheless, Wilson would like the state politely to withdraw. He argued that instead we “have to see prejudice within society and challenge it directly”, illustrating his point with an anecdote about having thwarted a publican’s attempt to eject lesbian patrons from a bar. Apparently, the removal of legal protection from discrimination will herald a blossoming within our society, the creation of an “active citizenry”. This superficially attractive argument is absurd on several levels.
A belief that the concerned citizenry of Australia would never stand idly by while a bigoted business-owner prospered is notably optimistic: the idea that time-poor folk will add boycotts and public shaming to our daily labours, making every interaction with a private business a potential project for societal change, is utterly fanciful.
Man cannot live by warm inner glow alone and sometimes people just want to buy a sandwich and get on with their lives, leaving our elected governments to set boundaries of acceptable business conduct.
More insidiously, Wilson arguably underestimates the degree of prejudice that exists in our society: can marginalised groups really rely on the kindness of strangers? Anyone who thinks substantial numbers of white pub patrons and shoppers would spontaneously organise boycotts of every business which declined to serve black people enjoys the sort of warm belief in human goodness that leads someone to give their wallet to the wallet-inspector — provided they are not government-appointed.
The belief that allowing overt discrimination to flourish is the first step towards bigots learning the error of their ways flies in the face of experience. Australia’s past and present is replete with examples of racial prejudice being loudly and proudly proclaimed and yet oddly enough this has never resulted organically in some sort of utopia.
Does anyone honestly believe that, but for the Whitlam government’s passage of racial discrimination legislation in 1975, Australian racists would have been forced to acknowledge that their prejudice was “foolhardy”? Were the 1950s and 1960s a post-racial nirvana?
Indeed, the argument that an engaged citizenry is preferable to legal protection is curiously ahistorical: what does Wilson think led to the passage of anti-discrimination legislation in the first place? The 1965 Freedom Rides are a perfect example of citizens shining a light on entrenched discrimination against Aboriginal people in rural New South Wales: dismissing the value of the Racial Discrimination Act seems an unlikely way to honour and encourage such activism.
The beautiful world Wilson envisions simply does not resemble our own, leading one to wonder whether “classical liberals” are simply wide-eyed innocents or, more cynically, whether the real end-game of this ideology is to try to keep all regulations out of business, with anti-discrimination legislation a useful starting point. If a business-owner should be free to decline to serve Aboriginal people or hire women, for instance, should they not also be liberated from paying the minimum wage, or adhering to occupational health and safety regulations?
Perhaps we should be asking ourselves what Wilson is really talking about when he's talking about freedom.
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