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…

And we will live together, until the twelfth of never… Banerji, Folau, and Clubb are not arguments in favour of a Bill of Rights

Advocates for an Australian Bill of Rights present less than half of an argument: ‘Look at all the wonderful things Australia could have if only it had a Bill of Rights!’  The High Court decision in Banerji (which held that a public servant does not have a constitutional right to go completely rogue about their employer and sledge their boss online) has encouraged some advocates to reheat their inedible souffle in favour of a Bill of Rights.

In The Canberra Times, Crispin Hull writes:

Get it through your thick skulls. There is no freedom of speech in Australia. Stop watching American movies.

Okay.  He continues:

Australians should understand that to qualify as a liberal democracy a bill of rights is pretty much compulsory. History tells us that liberal democracy is both gained and lost gradually, step by step. In recent years, Australia has been taking some of those steps.

He provides no argument in support of this view.

Gillian Triggs, the former Human Rights Commissioner, argued along similar lines:

If anyone doubts the need for a charter of rights in Australia, the Banerji decision of the High Court handed down last week demonstrates why legislative protection for our common law freedoms has become a matter of national urgency.

Triggs argued that this was because the High Court did not discuss issues that were entirely irrelevant to the matter before it, and then notes:

A similar charter protection in Australian law may not have saved Banerji on the facts of her case, as it is arguably necessary to protect the integrity of the public service.

Coolio.  Meanewhile, Josh Bornstein of Maurice Blackburn and Per Capita, turned to a discussion of Israel Folau, the sports celebrity who did a homophobia and got sacked:

[T]hose cheering on the loss of Folau’s livelihood and career have undermined the cause of countless other employees who espouse controversial progressive views and suffer the same fate. […] While Folau’s views are objectionable and arguably even hate speech, perpetual unemployment is a grossly disproportionate punishment.

It was harder to find impassioned defences of Kathleen Clubb, the woman who challenged Victoria’s laws which prohibited anti-abortion protests within the vicinity of abortion clinics.  The Human Rights Legal Centre called it a ‘significant win for gender equality’. Academics from the Castan Centre for Human Rights were strongly supportive of the decision.

Here’s why Australia should not, on the basis of the above, have greater protections for human rights in Australia.

Nobody knows what human rights advocates are arguing for

Although human rights advocates always argue for their own preferred human rights to be considered human rights, they are slippery on precisely which human rights they prefer and how they prefer them.

This is a debate going back to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.  One covenant has all the liberal rights and the other has all the democratic socialist rights.  The question is whether or not they, read in conjunction with the Universal Declaration of Human Rights, are a source of human rights or a mere statement of human rights.  That is, without the core documents, do human rights exist?

To use the example above, is there a human right to the freedom of speech?

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

3(a) is about defamation.  3(b) is about censorship.  So defamation and censorship are consistent with the ICCPR, but critics of defamation law and censorship routinely assert that it is inconsistent with the freedom of expression.

Does Article 19 include donating money to political campaigns?  Is giving money to something part of the freedom of expression?  Don’t we have a legitimate interest in regulating money in politics?

The problem with ‘human rights’ discourse is that nobody is firm on the question of what they mean by the human right.  It’s a rhetorical stop-gap that occupies the position of an actual argument about precisely what is meant by the right.

Seriously, nobody knows what they’re arguing for

Let’s say that we all agree on the content of the human right.  It covers X but not Y for relevant [X] and [Y].  Even if we agree on that, nobody is clear on what they’re advocating when it comes to implementation.

Some argue that we need an entrenched statement of human rights in order to prevent the government from doing things they don’t like.  So says Triggs:

Sadly, traditional common law rights that might protect us from such legislative excesses are all too readily ignored by the courts.

As we’ll see, it’s not that sad.  The important bit here is ‘protect us from such legislative excesses’.  So rights legislation would be a kind of protection.

A judge could, for example, apply charter law to prohibit indefinite detention without trial of stateless persons, the mentally ill and asylum seekers and refugees; ensure that juveniles are not held in adult facilities; require governments to provide adequate housing for all; ensure access to medical care and social justice; protect against disproportionate counter-terrorism and surveillance laws; and protect the culture and rights of Indigenous peoples.

So we’re seeing the rhetoric of ‘protections’ here.  Empowering the Courts to clip the wings of the legislature.

Would this mean the expansion of judicial power at the cost of parliamentary sovereignty? Would it be a carbon copy of the US Bill of Rights?

Not if we adopt the so-called “dialogue model” of the Victorian Charter of Human Rights and Responsibilities. Under this model, a Victorian court cannot invalidate a law; it can only declare that a law does not comply with charter rights. It is then up to parliament to amend the offending law as it sees fit.

Oh…  So it’s not about empowering the judiciary to protect human rights.  It’s a rhetorical device to… give courts a platform to opine about their views on human rights?  That’s pretty weak.

The problem that Triggs has is that she actually knows what she’s talking about.  She knows that human rights rhetoric is incoherent and incomplete, so she does not want to empower the unelected branch of government to make unilateral decisions about what the other two (democratically accountable) branches can and cannot do.

Thus the rhetoric of ‘we should have this right… except when it’s reasonable for a democratically elected government to decide that the right should be curtailed’.  It’s the sort of whimper that we expect from liberals: never stand up for anything too much, because rationality is about making constant compromises until you end up with nothing at all.

People with less knowledge of human rights have no such qualms.  Fired up by the intuition that you can’t trust the two democratic branches of government, they want to empower the Courts to act as a guardian of ‘human rights’ by policing the policy decisions of the legislature and the executive.  If we have a human right, the Court should protect it by overruling the decisions of parliament and the executive.

Never trust the Court to do the work of Parliament

Canada has a Charter of Rights and Freedoms which allows the Courts to strike down laws as unconstitutional.  James Keegstra was a teacher who thought it was a crash hot idea to teach antisemitic conspiracy theories to students.  Amongst some of his crazier ideas about Jews was his Holocaust denial, which he incorporated into his curriculum.

The Canadian Parliament wisely and sensibly created a law which prohibited hate speech.  Mr Keegstra decided that being convicted for hate speech would be a breach of his Charter-protected freedom of expression.

Instead of getting a unanimous decision against him, the Supreme Court of Canada split 4:3 against Mr Keegstra.  4:3.  They were within pissing distance of saying that teaching Holocaust denying conspiracy theories to children was protected speech.

Canada has a long history of bizarre decisions due to the Charter.  The Candian Parliament wisely and sensibly enacted legislation which prohibited (with specified exceptions) all advertising and promotion of tobacco products and the sale of a tobacco product unless its package includes prescribed unattributed health warnings and a list of toxic constituent.  The Supreme Court found 5:4 in favour of the tobacco industry’s argument against the legislation, finding it was an impermissible burden on the freedom of speech protected by the Charter.

Absolute garbage.

Australia has had similar problems with the implied freedom of political communication.  Instead of deferring to Parliament to decide what should and should not be permitted speech, the Court has become entangled in weird jurisprudence.

In the 1980s, the Hawke Government tried to limit corruption and promote informed elections through restricting what could be broadcast during election periods.  Australia’s media companies opposed this attempt to reduce corruption in Australia’s democracy, and the Court found 5:2 in their favour.

In the 2000s, Man Haron Monis (who would later siege a Lindt cafe) was charged with sending abusive letters through the post to the families of dead soldiers.  Again, instead of finding unanimously against Mr Monis, the Court split evenly on the question of whether this behaviour had a constitutional protection.

There is no principled, logical, or philosophical reason why a Court would be in a better position to set the position about the protection of rights than Parliament.  Worse, if the Court decides in a way that is obnoxious to the vast majority of people in Australia, the only way to correct the mistake is through a referendum.  If Parliament decides incorrectly, we can collectively fix the mistake at the next election.

Australia is currently embroiled in a discussion about what we can do about judges who go completely rogue.  How can we discipline them?  How do we remove them for incompetence or incapacity?  It makes absolutely no sense to have a discussion about how to give them more power to override the will of Parliament.

The other half of the argument

Historically, the beneficiary of human rights legislation has not been the downtrodden or the poor.  It has been the odious who could afford lawyers.  It is likely that Australia’s plain packaging laws would have been struck down if we had a Bill of Rights.  It is likely that Ms Clubb and her anti-abortion protestors would have won the right to harass women seeking an abortion if we had a Bill of Rights.  It is likely that Andrew Bolt would have won his case against Indigenous Australians he had smeared if we had a Bill of Rights.

Whenever advocates champion human rights legislation, they don’t want you to ask about this other side of the argument.  Sure, you might empower the people you like (you totally won’t, by the way, but it’s good to dream), but you will definitely empower the people you don’t like.

We will get our equivalent of Snyder v Phelps which will protect the right of people to scream ‘God Hates Fags’ outside people’s funerals.  We will get our equivalent of Brandenburg v Ohio which will protect the right of Klansmen to publish videos of thinly veiled threats by Klansmen against ethnic minorities.  We will get our equivalent of Citizens United v Federal Election Commission which will protect the right of the mega-rich to flood the media with misleading electoral material.

You get nothing and give these people everything.  For what?  So that you can incorrectly claim that this protects liberal democracy?

James Bryce was a leading legal scholar of his era.  After surveying the constitutions of various countries, including that of the United States, he declared:

[I]f any country and its government were to be selected as showing the course which a self-governing people
pursues free from all external influences and little trammelled by intellectual influences descending from the past, Australia would be that country.

Far from finding that our lack of constitutional protections of rights meant that we were not a liberal democracy (as claims Crispin Hull, who is not a leading legal scholar of his era), he says that this feature speaks to our commitment and belief in democracy.  Australia ‘used the experience of the mother country and of [our] predecessors in federationmaking … in no slavish spirit, choosing from the doctrines of England and from the rules of America, Switzerland, and Canada those which seemed best fitted to the special conditions of [our] own country’.

In conclusion

Australia is much better off with our current framework for protecting rights.  The media should stop giving a platform to misleading and ill-informed arguments by advocates.


One response to “And we will live together, until the twelfth of never… Banerji, Folau, and Clubb are not arguments in favour of a Bill of Rights”

  1. […] And what that means, in practice, is that Australians are much more likely to have their imaginations about the Constitution hijacked by American pop culture.  We have people in Australia attempting to plead the Fifth, for example, because they saw it on police dramas.  Worse, the majority of our Constitutional discussion is occupied with comparisons to the US Constitution: we don’t have rights, and we are the only Western democracy in the world not to have explicit consitutional rights.  Of course, we need only look at those countries with constitutional protections of rights to see that this is a good thing: Canada came one judge-width away from protecting the rights of teachers to teach antisemitic conspir…. […]

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