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.

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Her dates heads of state, men of taste… The Right to Sex and the NDIS

The circumstances which unfortunately affect the applicant herself are, to say the least, very unusual. The details of the claim involve very personal details concerning the impact of her disability upon her sexual life, such that I have decided that those details ought not, out of respect for her, to be disclosed in the public section of these reasons for decision. I apprehend that she would be embarrassed and disconcerted by their disclosure publicly, and that no public interest requires that such details be exposed to the world at large, or to media discussion.

So wrote the Administrative Appeals Tribunal in WRMF and National Disability Insurance Agency [2019] AATA 1771.  The decision itself is not complex, but the context of it is extremely sad.

‘WRMF’ is a woman with severe multiple sclerosis and other related conditions.  She has had a physical disability since age 17, and apparently also suffers some psychiatric conditions. Her MS is to such a degree that she is unable to masturbate.  She sought funding for a sex therapist to manage aspects of her condition and not — it is important to stress this point — because she couldn’t find a partner.  The fact that she couldn’t masturbate is, apparently, causing her enormous stress:

Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life. […] The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense she is put on a par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.

This should be the entirity of the debate.  It’s an extreme situation with a lot of specific facts.  It’s not really appropriate for widespread media attention.

Knocked on your door with heart in my hand… Banerji Variations 1.5: a response to @DarrenODonovan

I really recommend following Dr Darren O’Donovan on Twitter.  He is an administrative law academic from La Trobe University, and his commentaries on Robodebt and the National Disability Insurance Scheme are really worthwhile.

It is in that spirit of good dialogue that I read his response to my first Banerji variation:

There’s a difficulty with the generality of the case example e.g. what project is Suzanne currently working on? It’s a little bit worrying that this starter example stalls out – the key question is how Suzanne will feel when the incoming government does an about face? I could well imagine a letter being sent which notes that tying one’s workplace energy and wellbeing to a particular policy position is unwelcome for the appearances it raises.

I think Darren is worrying unnecessarily, so let’s construct why.

As life gets longer, awful feels softer… A (constructive) conservative take on the Reproductive Health Care Reform Bill 2019

I can’t think of a good current public debate about law.  The New South Wales Parliament is debating the Reproductive Health Care Reform Bill 2019 and, instead of debating the content of the Bill, everybody’s dusted off their stale takes about abortion.

Liberals have the worst argument about abortion because they rely on magic and superstition.  This is, apparently, about human rights and foetus do not have human rights because… um… they’re not human?  Or they’re not capable of having rights?  There’s no way to support this argument without special pleading, you just simply have to accept that the unborn and the born live in entirely different moral categories.  If you don’t accept this magical first step, there’s no way to persuade you otherwise.

Meanwhile, religious conservatives can at least use a variant of Pascal’s Wager to get to the conclusion they want.  Either a foetus is or is not a bearer of rights.  If you act as if a foetus does bear rights, then:

• if it does, you prevent a murder; or
• if it does not, you interfere with a person’s bodily autonomy.

If you act as if a foetus does not bear rights, then:

• if it does, you have murdered a bearer of rights; or
• if it does not, you haven’t interfered with a person’s bodily autonomy.

And then it’s a balancing act about how much you value not murdering somebody over not interfering with a person’s bodily autonomy.

Fortunately, I am neither a liberal nor a religious conservative…  More importantly, these high school debating competition sort of arguments have nothing to do with the Bill.  For whatever reason, we’ve let the clowns take over the circus instead of discussing the actual content of the Bill and thus we have people making inane assertions about human rights and even more inane assertions that abortion is a lot like the Armenian Genocide (this last comment is even more disgraceful given the Premier of NSW is an Armenian-Australian whose family died in the Genocide).

This wild lion doesn’t fit in this chair… The Banerji Variations: Part 1

One criticism of Comcare v Banerji is that it will have a ‘chilling effect’ on the speech of public servants.  First, I’ve never been convinced that a few cooler tongues aren’t exactly what the world needs right about now.  Second, I’m not sure that the decision does point towards a reason for public servants to be worried.  Incorrect media reports about the decision definitely will have a chilling effect on those who don’t go on to read the decision itself, yet we always seem reluctant to police accuracy in journalism.

In my last post, I did the big, broad brush strokes about what the decision actually is: is the Public Service Act invalid because it breaches the implied freedom of political communication?  Answer: no.  If you say completely stupid shit online that sledges your employer and your colleagues, the implied freedom of political communication will not save you.  That’s it.

So let’s work our way through some examples to see what the world looks like in the post-Banerji era.

If no truths are spoken then no lies can hide… Comcare v Banerji was a win for democracy

‘Petty dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who bad-mouth their companies’.  It was into this category that the Administrative Appeals Tribunal characterised Michaela Banerji, with the greatest respect. ‘[T]he tone of her tweets carried her contributions beyond mere education and into the realm of partisan advocacy and personal vitriol.’

I have always been caught between the legal beauty of the Banerji cases and the broader philosophical questions that arise. Over the next week or so, I’m going to jot down a number of ideas that the decision has inspired.  There is a lot going on here, and there is a broader query about the nature of the freedom of speech in Australia.  The High Court found against the anti-abortion protestors in Clubb v Edwards, but there didn’t seem to be the same wailing and gnashing of teeth on social media.  Perhaps — and I don’t think there’s anything inherently wrong about this — we just like it when people we like win, and dislike it when people we like lose.

There is a lot of media-inspired anxiety about this case.  This blog isn’t legal advice, so don’t point to it if you are a public servant and get pinged by your supervisor.  The purpose of this one is to set out why nobody serious should be all that worried about this case.

Can you read my mind? Can you picture the things I’m thinking of? … On the ‘illegal’ access to metadata

As a result of our 2016–17 inspections we formed the view that agencies were generally exercising their powers to access stored  communications and telecommunications data appropriately. Agencies had frameworks in place to ensure appropriate access to intrusive powers and these frameworks appeared to be working as intended. Agencies also demonstrated a commitment to compliance and responded appropriately to compliance issues. (Commonwealth Ombudsman, ‘A report on the Commonwealth
Ombudsman’s monitoring of agency access to stored communications and telecommunications data under Chapters 3 and 4 of the Telecommunications (Interception and Access) Act 1979: For the period 1 July 2016 to 30 June 2017’ [Source], 1)

If you read that paragraph and immediately thought, ‘Holy Hell, we live in an authoritarian police state where the Government is abusing its powers’, congratulations on your new job as an Australian journalist.