Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Fingers in paints, in paints we brought… It’s Human Rights Day! Let’s celebrate, Australia!

It’s been 69 years since the adoption of the Universal Declaration of Human Rights.  Australia does not really celebrate its involvement in the creation of the Declaration.  William Hodgson is all but unknown to most Australians.  I’ve sometimes wondered why Australians aren’t taught about the role we’ve played on the global stage — some kind of cultural cringe, maybe.  Hodgson was on the drafting committee that was chaired by Eleanor Roosevelt, and Doc Evatt was the President of the United Nations General Assembly at the time of its adoption.

Even detractors of the Declaration have to recognise its importance.  In the period immediately following the Second World War, there was a desperate need to recognise a universal humanity that would provide a moral basis to international law.  And the document reflects the aspirations of elites at the time.

But good intentions only get you so far.  International Human Rights Day is a good opportunity to be intellectually serious about human rights as a moral and a legal concept, and to defend Australia’s approach to the legal recognition of human rights.

Perhaps the biggest legal story of the year in Australia was the pseudo-crisis of s 44 of the Constitution.  Forget the legal issues for a moment and think instead in terms of intuitions about democracy.  Who should make the decision about who is qualified to be a parliamentarian and how should that decision be enforced?  What we saw in 2017 was a decision made by a bunch of white dead guys in the late 1800s being enforced by a panel of unelected judges.  Regardless of what rational, non-legal argument you might make about who should and should not be a parliamentarian, the question was resolved by legal technicality.  The only way to fix the problem — if you think there is a problem — is to go through the process of amending the Constitution.

What we saw was what happens when you bind Parliament’s ability to reflect the will of voters.  People from the past make the decision that’s enforced by unelected officials.  It was a classic example of the dead burying the living.

Despite this recent experience, we still had people arguing that Australia was deficient for not having a bill of rights.  Katharine Murphy claimed that structural changes, like a bill of rights, was needed to stop parliamentarians from going ‘too far’ in its pursuit of national security.  Lucia Osborne-Crowley argued that a bill of rights was needed to stop political debate. Both pieces were wildly wrong, but at least Murphy’s reads like it is supposed to be a serious argument.

Both pieces assert that some issues are simply beyond political debate.  If you allow parliamentarians to debate issues, you might give in to craven short term interest and opportunism rather than uphold higher morality.  This view is usually seen from the perspective that things we like are universally good, and things that we do not like are craven.

So, for example, plain packaging on tobacco products was hailed around the world as leading in public health.  Clearly an example of upholding higher morality.  But other jurisdictions which tried to legislate similar programmes before us faced the problem of the ‘freedom of speech’ clauses in their human rights bills.  When Canada tried to enforce mandatory health warnings on tobacco products, the Court found this to be a violation of its freedom of speech provisions (RJR-MacDonald Inc v Canada).  Critics of plain packaging in Australia, on the other hand, characterise the decision as populist Nanny Statism, clipping the rights of tobacco companies for feel good votes.

We are currently debating whether we should limit the influence of political donations in our democracy.  This question has already been largely decided in the United States.  Consider the widely loathed decision in Citizens United v. Federal Election Commission which meant that Congress is unable to regulate the election material produced by corporations during election periods.

Again in the United States, there’s a case about the quasi-mythical homophobic baker and it looks likely that the Court will find that antidiscrimination law infringes on his First Amendment rights.  If Australia had a bill of rights, it’s likely that you’d see a similar case here following the passing of marriage equality legislation.

The happy clappers who advocate for constitutional rights too easily draw attention to the way it would remedy their specific pet issues without ever considering how it would wreak havoc for other areas of law.  Further, the Kool Aid drinkers never tell you precisely how their bill of rights would remedy their particular situation.

Consider the Plebiscite case from earlier this year.  Forget the subject matter and go straight to the biscuits: a major plank of the argument was that there was a Constitutional limitation on the way the Executive can spend money that was being breached by the government.  Even though the limitation was acknowledged, the legal advisers had found a way around that limitation and the Court agreed.  That’s what legal advisers do: find ways around legal problems.

We see this in the United States.  Limitations on the government’s ability to detain people means that the government detains people beyond those limitations in Guantanamo Bay.

We also saw a variant of this problem in Australia with asylum seeker policy.  The Malaysia Solution would have seen an intake of asylum seekers from further up the pipeline while reducing the benefit of people to continue clandestine migration into Indonesia.  But the High Court, in a moment of weirdness, invented a new legal obstacle to deem the scheme unconstitutional.  The result was Nauru and Manus Island.

Constitutional rights empower those with greatest access to the law to thwart democratic regulation of their antisocial activities.  They are also not effective at promoting good government policy, instead promoting suboptimal (but technically lawful) pursuit of policy goals.  They strip the most democratic institution of the State of power and bind future society to the norms and intuitions of bygone eras.

Finally, despite what the nay-sayers assert, Australia has a comparatively good history of engaging seriously with human rights questions.  We’re not perfect, but we’re not atrocious.  The most significant failure is around race and reconciliation with our First Nations.  But with regard to national security law, we are exemplars of good practice with a level of oversight and restraint that simply does not occur in the United States.  Because our system tends to avoid big public controversies and tends towards extremely dry public reports, most journalists don’t pay attention (and, I imagine, don’t actually know anything about our oversight mechanisms).  We should celebrate the success of parliamentary democracy while continuing to seek ways to make improvements.

During the early years of its operation, our Constitution was critiqued by the leading international expert on constitutions: James Bryce.  Our lack of constitutional rights, he said, was a testament to our modernity and commitment to democracy.  It would be a shame if the ignorant criticisms of those who unimaginatively pursue limits on parliament’s power were to burden us with a constitution better suited to the eighteenth century than to the twenty-first.


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