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…

All the lace and the skin in the shop… On Nazi flags and the freedom of speech

It’s like saying ‘Beetlejuice’ three times in a row.  Somebody has decided to fly a swastika from their flag pole and now I get to write yet another blog post about why the freedom of speech is a terrible idea.  Living my best life.

I must admit that I can’t think of any laws that this would breach.  Let us imagine that there’s no clear ‘You cannot fly a Nazi flag’ law and, instead, Victorian authorities try to use a general ‘No offensive conduct’ provision instead.

You might think — entirely rationally — that flying a swastika is clearly offfensive and outrageous.  It clearly diminishes the rights of others, making Jewish citizens especially (but also other ethnic and sexual minorities) feel like they cannot exercise their democratic rights safely without reprisal from white supremacists. And so you might be entirely happy for the authorities to use a provision that is less than explicit in order to require Ms Lawdorn to take down the flag.

Alas!  Victoria has a Charter of Human Rights and Responsibilities.  Instead of this being an open and shut issue, we now have additional levels of inquiry.

When we discuss human rights legislation, we usually simplify things for the purpose of discussing whether or not we should recognise this or that right.  One way that we simplify the issue is to treat our legal framework as if there are courts on one side of the equation and the legislature and executive on the other side of the equation.  The common argument is that human rights legislation shifts powers from the legislature and executive side of the equation over to the judicial side.

While that argument is correct at a general level, we can unpack what’s going in a little bit more detail.  In Australia, we do not allow the judiciary to override the legislature.  This is somewhat different to how, for example, constitutional rights work.  In the United States, the courts can strike down legislation if the court holds that it is inconsistent with a constitutional right. This is how we get amazingly bad decisions about the invalidity of legislation to stop massive corporations from buying elections, about the invalidity of legislation to stop the Klan from marching up and down the main street, and about the invalidity of legislation to regulate gun ownership.

Australia’s preferred approach is to empower the court to issue certificates of invalidity if there is no interpretation of the legislation that is consistent with human rights.  In one sense, human rights legislation acts like a kind of ‘Acts Interpretation Act’.  The court is directed to interpret legislation to be consistent with the human rights framework… if possible.  There are some academic points here that I personally find quite interesting (like whether the court may ignore the ordinary and plain meaning of the legislation if it can create an interpretation that is consistent with the human rights framework).  We do not tend to empower the court to strike down the legislation.

It is an entirely different story when it comes to executive power, and the above sketch points in the direction of why this is the case.  If the court is directed to find human rights compatible interpretations of legislation (where possible), then interpretations that are inconsistent with the legislation (no matter how lawful on the face of the legislation) are not interpretations that are open to the executive.  In other words, although the court cannot overrule the legislature, it can restrict the capacities of the executive to perform its role.

Back to that swastika.  If there’s no clear provision in statute book to restrict a person from flying such an offensive flag, then it is open to the court to determine that any authority trying to stretch an interpretation to restrict this form of speech would be a violation of the Charter.

Which is lame as hell.

The executive, which is directly responsible to parliament and, through it, responsible to the electorate, has its powers restricted based on the policy whims of unelected law lords.

Forget the freedom of expression interpretation.  I’ve gone over that bit to death.  Let’s turn instead to section 7 of the Charter of Human Rights and Responsibilities:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

It is not clear to me why we think courts are in a better position to decide what limits on executive power are reasonable and demonstrably justifiable.  If I’m the chief legal counsel of the police and I come to the reasonable legal view that the police have the legal authority to require Ms Lawdorn to take down the swastika, it’s not clear why a judge is in a better position to make the policy decision that this is acceptable in a society that balances the freedom of speech against other considerations (like the rights of ethnic and sexual minorities to participate in public life without fear of white supremacists).

This isn’t even a mere hypothetical.  Remember that in Canada, the Supreme Court split almost evenly on the question of whether a teacher promoting antisemitic conspiracy theories to high school students.  It is not clear why the Supreme Court of Canada was in a better position to make the policy decision to prosecute the antisemite.

To quote Richard Posner:

And by the way do you think these Supreme Court Justices are great big brains? Big stars who were selected because they’re the best lawyers in the United States, and their decisions are, are usually great. You think all that? I don’t. I don’t have a high respect for the Supreme Court at all.

Now you look at their decisions, you look at them. How they’re appointed? Who appoints them? So why do you think the Supreme Court is such a great balance?

In conclusion, human rights legislation is bad.


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