If intolerance had a rational basis, as its purveyors always insist, then we could detect at least some degree of consistency in its application.
But it doesn’t, so we can’t. Thus we had Cumberland City Councillor Steve Christou, who is on record deploring the existence of an eSafety commissioner — because “Australians do not need the government to dictate to them what they can or cannot watch and post on the internet” — demanding that the council’s public libraries be cleansed of all “same-sex parents books and materials”.
Likewise, Councillor Mohamad Hussein, a Muslim, supported the vote for a ban, “in good conscience” because same-sex parenting goes against his religious beliefs.
The motion passed 6-5, before being overturned a week later 12-2 following the inevitable uproar. Christou stuck to his guns; Hussein changed his vote, referencing his (newfound?) respect for others’ beliefs. Maybe he hadn’t noticed that kids of same-sex couples cop at least as much bigoted shit as Muslims in this country.
Crisis averted, the children of this Western Sydney area may once again freely discover the existence of diversity without having to head to the dark web.
Still, the Christous of the world aren’t going anywhere, and we should expect this not to be the last attempt to import into Australia the modern US enthusiasm for book-banning as a culture war device. It’s pertinent, therefore, to consider the legality of such tactics, particularly since we have no legally enshrined freedom of speech on which to rely.
Generally, the way Australia’s anti-discrimination laws work is that they outlaw discrimination in relation to employment or the provision of services by reason of any of the prescribed protected attributes: gender, sexual identity, age, race, disability, pregnancy (and in some states, religion). The basic idea is that if a person has been treated less favourably than they would have been if they did not have the relevant attribute, that’s unlawful discrimination.
The Commonwealth law is in some respects more expansive than most of the state and territory equivalents, relevantly so when it comes to what the councillors did. The Sex Discrimination Act includes in its broad definition of discrimination what happens when, in providing services, someone “imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person”.
The Cumberland Council ban, had it survived, would not have directly and exclusively discriminated against anyone based on their sexual identity; it didn’t say that LGBTQIA+ people couldn’t enter the library or borrow books, or impose any differential conditions on them compared to anyone else.
It could also not be said that children of same-sex couples would have been unlawfully discriminated against by the ban, because — although its purpose and effect was to erase the fact of their parents having a valid and equal existence just like “normal” couples — the children themselves have no protected attributes by virtue of having same-sex parents.
However, unlawful discrimination can be direct or indirect. It takes little imagination to appreciate that providing a public library service, which excludes access for everyone to material that mentions the existence of same-sex parents, is necessarily disadvantageous to LGBTQIA+ people.
The same principle would apply if the council banned books touching on gay or trans themes, or with characters who are persons of colour, or that champion people with disability. As the saying goes, you can’t be what you can’t see, and being prevented from seeing those like you is discrimination, pure and simple.
That is as it should be because marginalised sections of the community have a hard enough time dealing with their daily serves of casual racism/sexism/etc-ism without attempts to institutionally obliterate their physical presence.
I think the reason there wasn’t an immediate “hey that’s illegal” outcry when the book ban was first announced was because it doesn’t intuitively seem obvious that a government authority can’t impose such censorship.
Partly that’s because Australians are far more comfortable with the idea of the government controlling what we do than we like to pretend we are. The uglier flip side is that we don’t readily recognise the insidious effects of institutionalised othering. Consequently, most of the argument about Cumberland was constitutional in tone — surely a local council shouldn’t have that sort of power! — rather than principled.
But it’s also true — a local council should have no power at all when it comes to basic freedoms. Since it’s the branch of government most likely to attract petty tyrants, all the more so.
Soon enough, a more imaginative bigot will come up with a form of book banning that is less obviously illegal — but just as divisive and damaging — because we’re committed to reenacting the 1930s and nothing seems likely to slow that down.
Before we get there, state governments should strengthen their local government laws to make crystal clear that, when it comes to censorship, councils have no role to play at all.
