The Draft Equal Treatment Directive

110116 NGR Revised paper110116 NGR Revised paper

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Towards a New Calculus in Balancing Freedoms and Responsibilities

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The scales of justice have long been biased in favour of regulation instead of freedom. There needs to be a recalibration.

As a part of the  European Commission’s preparation for the Annual Colloquium, under the rubric of “Hate Speech”, the following question was posed:

What would be the most efficient ways to tackle the trivialisation of discrimination and violence that arises through the spreading of hatred, racism and xenophobia, in particular online?

The answer that I have long held is that of a need for recalibration so that there is no bias in favour of new claims, touted as rights, against enshrined rights that are coupled with responsibilities. So, in an effort to put forward some form of balanced approach, I consider that the question should be answered for the EU along the following lines; rather than the manner espoused for the so far ill-fated draft Equal Treatment Directive that has lain inert before the European Council now for years. 

Education in correct principles, online and generally, in the long term, must be the answer to Question 31. In the immediate term, the answer is in effective but proportionate civil remedies and criminal sanctions. Civil remedies form part of educative processes. Criminal sanctions are a last resort for those who refuse to be educated.

Education

The relevant principles are found in the covenants by which member states are bound. Adherence to those principles must be understood as the price paid for the benefits of living in a free and democratic Europe.

The Preamble and Articles 9 and 10 of the European Convention for the Protection of Human Rights and Freedoms, First Protocol are a starting point.

According to the Preamble, the Convention is inspired by the Universal Declaration of Human Rights; a reaffirmation of a “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained … by effective political democracy and … observance of the Human Rights upon which they depend; …”

Article 9 provides, relevantly, as follows:

“1 Everyone has the right to freedom of thought, conscience and religion; …

2 …subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The emphasis in Article 9 is upon freedom of conscience, religion and belief and their manifestation; the freedom of thought mentioned in that Article is further protected by Article 10, which relevantly provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, …”

The Articles remind us that freedoms carry duties and responsibilities. Freedoms under Articles 9 and 10 are, therefore, subject to “national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …

Appropriate remedies and sanctions protect rights and freedoms conferred and enforce duties and responsibilities owed to the community. A measured approach to remedies and penalties can encourage social cohesion; enhance rather than inhibit freedoms of thought, belief and speech.

Effective but proportionate remedies and sanctions

The basis for any liability must be clearly defined. The Rule of Law requires that liability should be well-defined and knowable before conduct is the subject of complaint. Liability should be for conduct and not for thought or belief; for verifiable harm and not for subjective feelings or perceptions. No liability should attach to communications where the content is true, is appropriate social commentary or is part of political dialogue.

States should criminalise only the most extreme cases. Care must be taken not to permit the law to become an instrument of oppression or be used for the suppression of freedoms, including the unpopular or unfashionable. There should be a free market of ideas, subject only to the limitations identified in the covenants.

The words “hatred”, “racism” and “xenophobia” are difficult to define for legislative purposes. They are readily manipulated to suppress unpopular opinions. Too wide definitions of liability suppress freedoms of thought, belief and speech. Imprecise definitions multiply litigation. Too narrow definitions fail to protect the community as required by Articles 9 and 10.

A law, to balance freedoms and uphold responsibilities, must provide for effective but proportionate civil remedies and criminal sanctions. Civil remedies can form part of the educative processes. Criminal sanctions must only ever be a last resort for those who refuse to be educated. As a guide, it is submitted that the following gradations are appropriate:

  • Conduct or communications that merely offend – no legal action
  • Conduct or communications that injure reputation – personal civil remedies
  • Conduct or communications that incite violence or cause social disruption – civil and criminal sanctions.

At each level of regulation, the court should have at its disposal remedies that prevent or ameliorate harm. Injunctions and orders to publish apologies are ancillary to orders for the payment of quantified damages in civil cases; fines and imprisonment in criminal cases.

“Safe Schools”- Free Speech has a Small Reprieve: Update on ‘Where in the world can children be safe?’

Roz Ward has been re-instated by La Trobe University. As I said in the last post, while I disagree with Ms Ward on many of her stated views, I think she has the right to express them.

The article in The Age reports on reasons for the backdown on the suspension:

Professor Dewar said that he was now of the opinion that the university should change course.
“The allegations against Ms Ward and her suspension will be withdrawn,” he said.
“The university does not accept that it has acted unlawfully.”
Professor Dewar said the university had suspended Ms Ward not because her views were political. but because they were made at a time when there was intense scrutiny of the Safe Schools program, which is closely associated with the university.

There is no suggestion in the article of reinstatement to her position with the Victorian government.

The full article can be found here:

http://www.theage.com.au/victoria/latrobe-university-withdraws-allegations-against-safe-schools-cofounder-roz-ward-20160603-gpbc1t.html

Where in the world can children be safe?

It seems that there are assaults on the innocence of children in the First World, in developing economies and in the Third World. On both sides of the economic divide, there are controversial acts committed involving children. In the West, it is ostensibly in the name of progressive secularism. In other parts of the world, it is ostensibly in the name of religion.

Whether it is in the form of premature sexualisation of children, mutilation of genitalia for religious or gender identity reasons or the marriages of child brides, all nations need a wake up call to the need to preserve childhood as a time of innocence and discovery; not a premature tossing into the world of adult sexual desire and fantasy, whatever the genesis.

All children need to be safe . But what is to be done? Does the West have any right to point fingers at practices in undeveloped and developing parts of the world?

As to the emerging Western trend in sexualising children, below are versions of the latest video from Family Watch that Sharon Slater has produced.

Please watch and see what you think.

It is the set of issues that she raises to which I draw attention and not to Sharon or the site publishing the videos.

She makes points that do have direct impact for the family and the rearing of children which are surely matters of core concern to us all. As I am sure all are aware, the US (in many states), Canada, the UK and Australia have implemented programmes that reflect UN policy. In many cases, the implementation has been in good faith and with the best of intentions. But that does not mean that there is no potential for harm.

As you will see in the last of that set of videos, a principal architect of the Australian programme, self-described lesbian Marxist Roz Ward, explains what she considered as her own aims of the programme. Perhaps ironically labelled “Safe Schools”, Ward explains that, for her, the objective of the programme is not as much to protect children but to liberate their bodies from capitalist patriarchal domination.

Ward recently resigned from her new senior advisory role in the Victorian government, under some pressure from the Victorian government and La Trobe University to do so. She was in the position for only a matter of weeks. The precipitant was her exercising her right of free speech in relation to her political views; having expressed her desire in relation to Safe Schools on Facebook for a Marxist flag over the Victorian Parliament after the LGBT rainbow flag had been recently unfurled. In the course of that post, she made comments on the Australian flag. Apparently, it was those comments on the “racist” nature of the flag that were a bridge too far for those who previously supported her. While I disagree with Ward on many things, it is surely wrong for her to be dropped just because some were embarrassed by her expression of political views, all of which had been long and well known by her patrons in government and at the university.

Note that the commentary on the video comes from Christian commentators who are incensed at what is happening. These comments should be ignored in the gathering of information. I do not endorse the commentary and would prefer for the footage to do its own speaking.

Leaving Ward’s radical political agenda aside, there is enough in the various programmes to be of great concern on an international, apolitical basis because of the potential for harm caused psychologically and physically to children. Among other things, they are, according to the various reports on detail of the programme, taught to role play same-sex relationships at an early age, to breast bind and tuck or conceal biological markers of the chromosomal identity found in their genitalia and other parts of their bodies – both pubescently and pre-pubescently. In aspects of some of the programmes, children are enabled to have sex change surgery without the knowledge or consent of their parents. These practices are laden with controversy. Their advisability is hotly disputed on both sides of the debate.  Children should not be guinea pigs; and programmes should not be implemented without full parental consent on a fully informed basis.

Also, as readers may have seen, another form of genital mutilation has been in the international press again; this time in connection with Indonesia. Despite denials by certain experts that this is not an Islamic practice, the evidence is clear that it is just that in certain parts of the world. Parents, in this instance, are the culprits, almost without exception. There have been several news reports of this practice; they are to the effect that up to 50% of young girls in Indonesia undergo the religious surgery and quite often have some kind of celebration attached to the procedure. Girls who do not undergo the procedure are thought to be “flirts” and more likely to be promiscuous.

There is also a continued trafficking supporting the practices connected with child brides. I provide some details on this via the links set out below. And even apart from child brides, there is still the practice of coercion into marriages. Also below is a Daily Mail link to a widely reported instance of a young school teacher being immolated for her refusal to marry the principal’s son.

As horrifying as these Third World practices are; as worthy as their families may be of our most strident condemnation and deprecation; are we in the West in any position to point fingers when children can be mutilated by surgery without knowledge or consent of their parents?

Children need to be safe wherever they are. Where in the world would that be?

War on Children: The Comprehensive Sexuality Education Agenda:

Short version –

Long Version –

The War on Children: The Comprehensive Sexuality Education Agenda

Ward:

USA Today article on genital mutilation:
http://www.usatoday.com/story/news/world/2015/04/16/female-genital-mutilation-circumcision-indonesia/25868057/

Child Bride phenomenon:

http://www.dailymail.co.uk/news/article-1264729/Child-bride-13-dies-internal-injuries-days-arranged-marriage-Yemen.html

http://www.icrw.org/child-marriage-facts-and-figures

Immolation of teen for failure to consent to marriage:

http://www.dailymail.co.uk/news/article-3619547/Pakistan-teen-burned-alive-refusing-marriage-proposal.html