Victoria’s new anti-vilification laws could be a game-changer for mental health
In this week’s blog, Simon Katterl writes about Victoria’s proposed anti-vilification laws and their implications for vilification in mental health.
“He’s having a mental health episode”. A statement that to some might be innocuous, but to people with lived experience, this statement is often used to discredit us and what we are saying. It is control dressed up as care. I have had these baseless statements used against me to discredit important mental health advocacy.
In mental health, a great deal of discussion focuses on mental health stigma and discrimination, and rightly so. Distress and its manifestations have been stigmatised for generations not just by the community and media, but by the medical profession that has been ordained to respond to it.
But do these terms “stigma” and “discrimination” do the work we need them to? Stigma is an imprecise term that often refers to a 1960’s concept that a mark of shame is attached to someone, “spoiling” their identity. As important as this concept has been it keeps the focus on me, rather than the people who manufactured that mark of shame in the first place for their benefit.
Discrimination, a more legally-refined term, refers to the ways that people can experience unfair treatment in public life based on a protected attribute. Direct (such as not employing someone because they are a woman) and indirect (such as general workplace rules that disproportionately impact women) forms of unfair treatment are rendered unlawful against people based on their race, religion, disability and other characteristics.
For people labelled or diagnosed with a complex mental health diagnosis, stigma and discrimination is rife. The Our Turn to Speak report in 2020 by Sane Australia revealed that, with 79% of people expected discrimination when they access welfare services and 70% of people avoided education opportunities because they expected further discrimination.
As a mental health advocate, I have seen a decade of advocacy that is failing to shift the dial on stigma and discrimination in mental health, particularly against the most disadvantaged. Discrimination laws, hamstrung by under-funded and under-powered human rights commissions, have provided some protection when people are treated unfairly based on their mental health.
But what do Victoria’s and Australia’s laws have to say about the things we say, and whether they should be considered unlawful?
With the exception of costly defamation laws (that function primarily to protect the rich), our laws permit that people can use vilifying statements and conduct that wouldn’t be OK for other racial or religious communities. It is poor form but perfectly lawful for Big W to sell “insane asylum” costumes, humiliating people who have already undergone profound abuse in mental health systems.
It is morally questionable but perfectly lawful that a football coach can impugn the mental health of his player when that player speaks up about racism.
It is unwise but perfectly lawful for mental health leaders to dog whistle lived experience advocates as Scientologists when they speak up about the human rights issues in our mental health system.
Scott Morrison (whatever you think of him) may have been able to sue for defamation when he was called a “complete psycho”, but what about the broader lived experience community who had their experience of distress used as a slur?
As my research on why mental health vilification requires legal protection shows,, mental health stigma like this persists because it is perfectly lawful.
New Victorian anti-vilification laws, proposed to be expanded to cover disability, gender, gender identity, sex and sexual orientation, are an important step away from this status quo.
Expanding the vilification protections to the LGBTQIA community as well as people with disability is crucial. Assuming the government ensure that disability is defined as including mental health, HIV positive status and alcohol and other drug-use, these are welcome measures. Importantly, I hope that these laws include gender identity, homelessness, immigration and sex workers as protected identities/communities.
The expanded protections will give people, including those with lived experience of mental distress, the ability to make complaints or go to The Victorian Civil and Administrative Tribunal (VCAT) for unlawful vilification so that they can seek remedies.
Whether the laws take a “harm-based” test (focused on whether conduct was likely to harm someone based on particular criteria) or “incitement-based” test (whether it was likely to incite someone to develop some kind of contempt or towards the person or group) will illustrate to what degree the Victorian Government wishes to balance freedom of expression with the interests of religious groups.
The 2020 Parliamentary Inquiry report, controlled by the Labor Government, was clear that a harm-based test was preferred to get the balance right. This recommendation was supported in principle when it responded to the report.
Crucial in a mental health and alcohol and other drug context will be campaigns. People with lived experience often identify harmful words as “stigma”, but under proposed reforms, they would become vilification in the eyes of the law. Furthermore, the community need to understand that as our perceptions around distress have changed, therefore so should the way we discuss it.
There are no silver bullets to addressing systemic injustice in mental health. Rather, there are layers of protection and tools we can reach for in trying to fix the problem. If these vilification laws pass, we will have added one more protection to our belt.
Simon Katterl (he/him) is a mental health advocate who has written on mental health, anti-discrimination and anti-vilification laws. simon@simonkatterlconsulting.com
Moderator: Dr Elroy Dearn