I really like Australia. It is a great country. It could be better. Sure, it’s better for me than it is for many others, but I’d rather live here than anywhere else in the world.
The Left struggles with patriotism. It smells too much like racism. It whiffs of conservatism. It looks too much like a relic of a colonial past where we cared about the Mother Country or the Fatherland, a concept which made people fight pointless wars in foreign countries and steal resources. Isn’t it just irrational jingoism about the place where you were accidentally born?
The issue has raised its head in public policy again due to the Turnbull Government’s decision to tinker with the Citizenship Test: ‘Membership of the Australian family is a privilege and should be afforded to those who support our values, respect our laws and want to work hard by integrating and contributing to an even better Australia‘.
So let’s do a quick tour of the policy questions and the underlying philosophy of patriotism.
I spend far too much of my life thinking about the control of Executive power (70% of this is due to me having eleven thousand words on the topic due in a week so I am procrastinating hard). It is an extremely complex question that ultimately boils down to our basic intuitions about the relationship between the community and the State. That sounds more simple than it really is: the way you express that intuition in language affects the way you think about it.
Jeremy Waldron gives an example of this: should we talk about limiting the State, or should we talk instead of empowering the State? Well, that depends on what you think the State is and whether it begins its life omnipotent or impotent. Reasonable people can disagree on this point, and it’s not mere semantics. Back to Waldron: we can frame constitutions in ways that restrict the lawful use of State power or we can frame constitutions in ways which compel the State to use its power in particular ways.
I spend far too much of my life thinking about what the Executive power is and how we can control it. Every school child is taught the Separation of Powers like they’re taught triune theology. There’s God the Father, God the Son, and God the Holy Spirit. God the Father is the angry one from the Old Testament. God the Son is Jesus the hippy who liked fish. God the Holy Spirit is… the… other… one… maybe. Similarly, there’s the Legislature (which creates the law!). There’s the Judiciary (which interprets the law!). And there’s the Executive (which… administers the law? Whatever that means).
And then people map these three branches directly on to particular institutions. The Legislature is the Parliament, full of parliamentarians who create laws by passing legislation. The Judiciary is the Courts, full of judges who read the legislation and tell us what it means to resolve disputes. And there’s the Executive who is… like… maybe the public service… maybe?
Anyway, this all gets me to what a shitfully bad idea MiVote is.
Amidst the entirely unworthy debates of whether one wealthy white guy is allowed to tell another wealthy white guy that he’s a ‘social climber’ or not, you might have missed that Senator Jacqui Lambie has introduced an ‘anti-burqa bill’ into the Senate. I think that there are fundamental legal problems with it (but they’re boring and technical) and it probably won’t get beyond second reading. But even if there aren’t technical problems, I still think — as a conservative — that there are problems with the Bill that we should debate. The key problem, from my perspective, is the extent to which people should be able to preserve their anonymity and defend their privacy. This Bill is an unrestrained attack on your ability to regulate the extent to which other people can monitor you and coerce your behaviour.
There’s a risk that I end up being ‘That Guy’ in this post. Something happens and people are happy, then That Guy says: ‘Aha! You are all stupid for being happy about this because it is actually bad!’ We often see That Guy perform along to partisan beats. The NDIS is launched and a right wing That Guy bloatedly explains that the NDIS is actually bad somehow. A terrorist plan is thwarted and a left wing That Guy bloviates that it is somehow a false flag.
On one level, we should be happy that Chelsea Manning was pardoned. She gets to be reunited with her family and friends, and we shouldn’t begrudge her that genuine happiness. It is a monster who responds to an act of mercy with spite or with pettiness.
At the same time, we should keep a critical eye on this act of executive power and question whether we think it meets our community standards for how we want our justice system to work.
There’s an essay by Isaiah Berlin called ‘Does political theory still exist?‘ Like most of Berlin’s writing, it starts off with an interesting question and then smashes up against the rocks of his dull and uninspired thinking. By 1961, there really hadn’t been a ‘commanding work of political philosophy’ in the twentieth century and so, ‘with suspicious frequency’, people had put the question of whether political theory was still a thing.
By the end of the essay — after we’ve wandered through topics such as whether JFK was really president… again… — Berlin informs us that there’s still work for political theory to do and so it wasn’t really dead. But right up near the start of the essay, Berlin says something interesting about how intellectual disciplines fall into disrepair. First, a discipline might just be proven false, its central presuppositions having ‘withered away’ or ‘been discredited or refuted.’ Second, a discipline might have been usurped by new disciplines.
Today — an age of Brexit, Trump, debates about populism, about democratic participation, and about the (counter-)revolutionary impact of technology — there’s not a lot of doubt that political theory has interesting things to say.
But can the same be said of legal theory?
It demonstrates how poor we are at protesting and engaging in political debate that a protest about asylum seeker policy has generated more discussion about the nature of protest and about the adequacy of security of Parliament House. Don’t get me wrong: the protest was clearly wrongheaded and nonsensical, and I wonder if people’s position on the nature of protest is mostly determined by how they feel about the message of the protest. But I worry that the public is hostile to protest and political spectacle.
There’s probably another post in me about the nature of disruption, protest, and legitimacy, but it’s fairly dense and full of legal theory issues. The short version of that post amounts to: ‘Asking if disrupting parliament is legitimate is asking the wrong question.’
In this post, I want to tackle the other limb of the conversation: the security of Parliament House.
Statutory authorities are a weird beast, and they occupy a weird place in popular folk legal intuitions.
I should make a few comments up front lest I be misread. My support of the Australian Human Rights Commission and the Solicitor-General as institutions is unwaveringly positive. It is a triumph of our system of government that we have these institutions. I absolutely love that the AHRC can intervene in proceedings against the Commonwealth, for example. And the position of Solicitor-General — since the time of Sir Robert Garran — has ensured a continuing line of excellent legal advice to Parliament, allowing more politicians to function without themselves being legal boffins.
But they’re both creatures of the Executive. They are created by statute and are accountable to Parliament. This is creates a weird dynamic in our system of government where there is a very significant fusion of the legislative and executive branches of government. The dynamic is further complicated by ideas of independence: how can a statutory body be independent of government and accountable to the same parliament that generates government?
For whatever reason, people are worried about clown attacks.
The topic should get us excited because it reveals a whole lot of intuitions about what people think is acceptable behaviour and how we should regulate that behaviour. Let’s start with the easy case.
On Wednesday, the High Court will deliver judgement in a rather strange case called Cunningham v the Commonwealth. On the face of it, the case is absurd. And when you dig into it more, it’s even more ridiculous. It’s ridiculous turtles all the way down.
But teasing apart the case lets us discuss a few interesting legal ideas, not least: what is ‘property’?
Rita Panahi begins a recent piece with a magic trick:
This is precisely the type of common sense legislation that the state government should be backing. Why should convicted killers be eligible for parole if they refuse to reveal the location of their victim’s body?
To disagree would be to disagree with common sense… but since when is legal policy built on common sense? Should it be founded upon public intuitions?