Like thunder gonna shake the ground… VLAD isn’t all bad #auspol #auslaw #qldpol

Image:Queensland Government Logo.svg

Image:Queensland Government Logo.svg (Photo credit: Wikipedia)

There’s a bit of a strategy to releasing controversial legislation: do it all at once.  In any given capital city, there are three newspaper front pages to worry about.  If you release seven pieces of controversial legislation on a wide range of topics at once, there’s no way they can keep up.  Chumps.

It appears the Queensland Government has recently adopted this strategy.  One of the recently released bills is called the Vicious Lawless Association Disestablishment Bill, and it’s caused a bit of a stir.

[tweet https://twitter.com/BernardKeane/status/389982189334441984]

The hyperventilation from the left has — as usual — stopped anybody from having a meaningful discussion about the Bill.  It’s not perfect, but it’s not apocalyptically bad.  Unfortunately, the minister who is supposed to lead the public discussion, is… well…

[tweet https://twitter.com/JarrodBleijieMP/status/389991967125299201]

It turns out that if you don’t have a bicameral parliament, actually being able to conduct a public debate becomes a bit of a triviality.  Although I am extremely critical of the way the discussion was conducted, here’s the argument for why I don’t mind VLAD. Continue reading

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Quick Post: On the Freeness of Speech (reply to @citation_needed) #auspol #auslaw

Over on AusOpinion, I’ve argued that two recent court cases have breathed life into the entitled whining of freedom of speech advocates.

But — again — we are only hearing from one side of the debate, the side which thinks it’s intuitively obvious that Australia’s legal system failed to protect Banerji and the Occupy protesters.  The argument is a simple one: ‘Look at these people with whom you appear to agree!  If only we had a bill of rights, people with whom you agree would have been protected!’  It’s a narrow and shallow debate that overlooks the cost of free speech. [Source]

To show that the intuition is flawed, I’ve given several examples of how a constitutionally protected freedom of speech would adversely affect various progressive causes.  The point being, we need advocates to start engaging seriously in the debate with something better than absolutist slogans like ‘Free speech is the cornerstone of democracy’ and ‘The rights of all public servants are at stake here’.

Over on Twitter, M Nash (@citation_needed) has responded:

[tweet https://twitter.com/citation_needed/status/387723015343312896] [tweet https://twitter.com/citation_needed/status/387724903975489536]

On the one hand, this misses the point.  The point of my examples was not to demonstrate definitively that freedom of speech protections are a waste of time.  The point is to counter the intuition-pumps arising from the two court cases.

On the other hand, M Nash’s response is exactly the one for which I’m explicitly asking in the post:

This isn’t a debate between the hip cool progressives who love freedom and the crusty old conservatives who hate minority rights.  It is isn’t even a debate.  It’s just entitled whinging from people who opportunistically think that they would benefit from a constitutional protection of free speech. [Source]

If you think that US-style protections don’t work, put some options on the table and let’s nut them out.  Given that the mainstream media only discusses rights in terms of Bills or Charters, this would be an extremely welcome and productive development of the rights debate.

But don’t for a minute think that it’s an easy discussion.

Prima: ‘These court cases prove that we need better protections for the cornerstone of democracy!’

Secunda: ‘But the protections that you’re advocating would have major negative consequences.  Here are some examples.’

Prima: ‘None of those examples hold if you just ignore the protection mechanism that I’ve been advocating.’

Secunda: ‘So what protection mechanism do you have in mind?’

Prima: ‘We… We… We could have a whole host of exceptions to the freedom of speech.  We could have a constitutional protection for the freedom of speech, but allow the State to infringe it for matters of national security, protection of human health, for the maintenance of an impartial public service, and for the purposes of ratifying treaties.  Oh, or we could just limit the applicability of the protection.  We could have a constitutional protection just and only just for true political communication that’s in the public interest!’

Secunda: ‘Sure.  But these seem like very limited rights, and they look like they could be easily abused…’

And so on and so forth.  But this is exactly the debate that we should be having.  When advocates start braying for constitutional protections, we should hold them to account and make them defend their views.  Otherwise, it will always remain an entitled whinge-fest.

 

I might slip down to the bottom of the sea… What if Kanapathy was a prick? #auslaw #racism #auspol

Have I told you lately how much I love the Racial Discrimination Act?  I do.  I absolutely love it.  I’ll never begin to understand why my fellow conservatives don’t like it — longstanding grudges against minorities, I suspect — but the hatred of it from progressives is utterly baffling.

My favourite two sections exemplify how I think rights should be conceptualised: a synthesis of two competing, irreconcilable assertions by two rational and morally excellent parties.  Here we go:

Section 18C

It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Section 18D

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or

(ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

My love of these two sections is going to make my next statement sound particularly strange: Kanapathy v in de Braekt (No. 4) is a terrible decision.

Continue reading

Quick Post: High Court to publish footage of hearings, and this is bad #auslaw #auspol

Justice Michael Kirby, High Court of Australia

Justice Michael Kirby, High Court of Australia (Photo credit: Wikipedia)

Over on the Opinions on High blog, Jeremy Gans gives a quick overview of the High Court’s decision to make footage of its hearings available to the public.

Up until now, transcripts of hearings have been made available through AustLII, providing hours of entertainment through Shit Judges Say and my favourite transcript ever:

KIRBY J: Mr Rout, the document you have tendered to be filed in the Court is called an electoral petition.

MR ROUT: Yes.

KIRBY J: It appears to challenge the election to the Australian Capital Territory seat of Fraser.

MR ROUT: Yes.

KIRBY J: It makes statements concerning the former Chief Justice and said that he is off with the late Mr Skase in Majorca in Spain, which is simply not the case.

MR ROUT: Yes, a little humour added there.

KIRBY J: It just has nothing to do with the case. We are very busy people, I am afraid, and you seem to be wasting our time.

MR ROUT: No, because you are called upon to apply the law.

KIRBY J: Exactly.

MR ROUT: And the law is their set of dividing and multiplying by zero. As long as they maintain their incorrect dividing and multiplying by zero, then they enable me to cause things to cease to exist, and that is why I have the power to do so.

That never gets old.

Other courts are not nearly as good as the High Court in this regard.  Greens Senator Sarah Hanson-Young is suing a magazine for what appears to be obviously protected political speech, but we have to rely on a fairly sparse news report for the details because the NSW Supreme Court doesn’t provide much but judgements to the public for free.

The thing about transcripts is that you have to read them.  The flares and flourishes of lawyers are stripped away, leaving cold hard words on the page.  Unlike in the US, Australia hasn’t had much difficulty with the celebrity lawyer problem but the issue is on the rise.  Over the past two years or so, there’s been a long standing legal dispute between former Liberal MP and former Speaker of the House, Peter Slipper, and his former staffer, James Ashby.  One of the issues noted was the use of the court by Ashby’s legal team to run a media smear against Slipper.  Footage wasn’t available from inside the court, so Ashby’s team had to rely on journalists to report the key points of the smear.

Had footage been available, it would have increased the likelihood of the lawyers making soundbite pitches to appear on the evening news.

We also see the problem in cases involving asylum seeker issues.  It is difficult enough to keep on top of the often very complicated legal issues surrounding these cases.  But, invariably, there’s one of the usual activist lawyer faces simplifying the legal argument into a handy soundbite outside the court.  Publishing the footage of the hearings provides an incentive for activist lawyers to campaign from inside the court where they should be trying to deal with legal issues.

One of the exciting things about cases in the High Court is the exceptional intellect of the people who appear there.  They’re usually not interested in being flashy or media-friendly; they’re more interested in subtle, intricate, nuanced arguments.  Publishing footage from inside the courtroom provides an incentive away from that kind of discussion towards performances that can be tweeted and shared over social media.

Transcripts are great.  Footage is not.

 

Are we surprised that starting a flamewar with @SandiHLogan isn’t constitutionally protected speech? #auspol

twitter fail image

twitter fail image (Photo credit: Wikipedia)

Yesterday, Twitter was abuzz with a story about a public servant, Michaela Banerji, who had been sacked for tweeting anti-government messages on her account, @LaLegale. Much to Markus Mannheim’s credit, the story was corrected to better reflect that Banerji had not been sacked (EDIT: Apparently, the text wasn’t corrected — Twitter just got the detail wrong; see comments). Even so, Twitter is always ready for a good outrage.

Banerji was a public affairs officer at the Department of Immigration and Citizenship. Her branch head, Sandi Logan, is a prolific user of twitter (@SandiHLogan). By day, Banerji’s job was to communicate government policy. By night, she was attacking said policy and directly attacking Logan over Twitter.

An internal review was conducted to see if Banerji had breached the APS Code of Conduct and the Department’s Social Media Guide. The Australian Public Service Commission has released guidelines for public servants’ use of social media in their personal capacity. When outspoken blogger and commentator, @drag0nista, was revealed to be political adviser, Paula Matthewson, Twitter went nuts about the APSC’s social media guideline (which I wrote about here).

There is a little bit of hypocrisy in the public debate. When people like Logan and Matthewson express their opinion, it’s considered to be a breach of the guidelines. When Banerji expressed her opinion, she’s a hero who deserves protection. It’s one of those unusual verbs: people with whom I disagree breach the social media guidelines; people with whom I agree deserve protection.

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The Chief Justice Series: Sir Isaac Isaacs – the Sun Wukong of Australian history #auslaw #lawweek

There are two posts in this series to which I have been thoroughly looking forward.  Most of my friends are tired of me talking incessantly about the subject of today’s entry: Sir Isaac Isaacs.

When I was in high school, we had five houses named after historic Australians.  I started out in Lalor, named after Peter Lalor a leader of the Eureka Stockade.  The three other houses were named after John Monash (an Australian General during WWI), Mary Gilmore (one of our only communists who became a Dame Commander for literature), Paterson (after Banjo), and Caroline Chisholm (more on whom later, but was an activist who worked with immigrants to Australia).  Due to growth of the school, it was decided that we needed a fifth house and the school ran a small competition to submit ideas for the name of the new house.

I entered two names: Chamberlain (after Azaria Chamberlain, because I was as hilarious as a 17-year old as I am now) and Isaacs.

Isaacs, alas, lost out to Franklin (after Miles Franklin, a writer).  A deep shame.

It’s difficult to underestimate how much I like this guy.  If it weren’t for another amazing — internationally amazing — Chief Justice (who rhymes with Schmowen Schmixon), Isaacs would easily be my favourite Chief Justice.

So what did Sir Isaac — Chief Justice of the High Court of Australia for less than a year — do to inspire young Mark so completely?  The short answer is ‘Patriotism‘.  The long answer begins now…

In Wu Cheng-en’s Journey to the West, it was said that the universe poured energy and elemental forces into a stone as old as creation.  From that investment of energy sprang Monkey (‘Sun Wukong’), who would be instrumental in the transmission of Buddhist teachings from India into China.  Monkey embodied that moment of transition: between inanimate stone and animate creature, between Taoism and Buddhism, between beast and human, between mortal and divine, between base nature and enlightenment.

Xyj-sun_wukong

It is my argument that Sir Isaac Isaacs is the Sun Wukong of Australian history.

When Melbourne was only twenty years old, Isaacs was born to a Jewish tailor in Melbourne.  Australia had only been settled/invaded some seventy years earlier.  An economic migrant (as we might call him today) Alfred Isaacs had journeyed from Poland to Australia in 1854 via Germany, France, and England.  Victoria’s economic prosperity arising from the Gold Rush was alluring to nearly everybody, and settlements around Victoria were springing up as more gold was found.  In 1855, in a cottage on Elizabeth Street, Melbourne, Isaac Isaacs was born.  In the decade following his birth, this is what Elizabeth Street looked like:

Elizabeth Street, Melbourne: 1860s

A first generation Victorian, he was intensely proud of his heritage and his homeland.  Just as Monkey was a lightning rod for the creative energies of the heavens, Isaac Isaacs was a complex mash of cultural identity: Victorian and British (as all people in the colonies considered themselves) and continental and Jewish.  Almost contemporaneous with Isaacs’ birth, Richard Wagner published ‘Judaism in Music’, and de Gobineau’s ‘Inequality of the Human Races’ was still being circulated among the educated elite.  Politically, he was born during a period of upheaval: the Eureka Stockade occurred only two years earlier, and the passing of Victoria’s Electoral Act — which introduced full suffrage for (white) males, established secret ballots, and made Victoria the first democracy in Australia — had occurred a mere five months earlier.  It would be another four decades before white males born in Australia would outnumber those who immigrated.

But for all this ‘white male’ talk, perhaps one of the most important people in Isaacs’ world was his mother:

Rebecca, who was London-born, had a powerful mind, wide-ranging intellectual interests, and the capacity to understand and discuss complex matters. She was an ambitious and dominating woman who exercised a very strong influence over her first-born. [Source: Australian Dictionary of Biography]

Even when Isaacs ascended into Australia’s political elite, he would still make sure he contacted his mother daily.  I love that.

isaacs

Just like Monkey, Isaacs was a person of extraordinary natural talent.  His family moved to northern Victoria and Isaacs began his education, a task in which he both delighted and excelled with ease.  He mastered languages: his parents spoke Russian and German, he picked up Italian, Greek, and Chinese from the local miners.  Soon, he would be privately tutoring and then formally teaching other students.  He taught at Beechworth from age 15 to 20, leaving after a dispute with the education department about pay.

He returned to the City to begin studying Law.  Unlike Adrian Knox, Isaacs wasn’t born into connexions with the political elite of the day.  Despite this, his legal career was a roaring success and he earned enough to move his parents back to Melbourne from Beechworth.

It’s during this time that Isaacs became involved in the Australian Natives Association, a ‘friendly society’ for white men who were born in Australia.  It’s here that Isaacs’ views about his national identity are solidified: despite being a Jewish polyglot Briton born in Victoria to a Polish father and English mother, Isaacs wanted nothing more than to be Australian.  His passion for Federation would not find an equal at the Constitutional Conventions.

Here’s Alfred Deakin on Isaacs:

A clear, cogent, forcible and fiery speaker, he set himself at once to work to conquer the methods of platform and parliamentary debate and in both succeeded. He was not trusted or liked in the House. His will was indomitable, his courage inexhaustible and his ambition immeasurable. But his egotism was too marked and his ambition too ruthless to render him popular. Dogmatic by disposition, full of legal subtlety and the precise literalness and littleness of the rabbinical mind, he was at the same time kept well abreast by his reading of modern developments and modern ideas.

‘Rabbinical mind’ was not an accidental phrase.  From some of the greatest Australians we’ve managed to produce came petty and snide little quips about Isaacs’ ethnicity.  Edmund Barton once wrote to Sam Griffith: ‘I don’t think there is the least bit of sincerity in the Jew boy’s attitude.’ (I incorrectly attributed the quote to Griffith here)

But he could dish out as much prejudice as he took.  In Ex parte Walsh; Re Yates, Isaacs would later write:

Immigration, as I have explained in the O’Flanagan Case, is not obliterated for ever by the mere passage across the frontier, nor by the momentary leap over a barrier which magically and instantaneously transforms a Hindoo or a Kanaka, for example, into an Australian. If such were its meaning, the cherished national policy of Australia would indeed be in peril. And it would only nominally lessen the peril if the Hindoo [Hindu] or the Kanaka [Pacific Islander] by immediately adopting Australia as his “home,” as it is said, could, so to speak, dig himself into this Commonwealth, so as to be irrevocably, so far as the Commonwealth power is concerned, a member of the people of the Commonwealth—a true Australian—and thereby escape the immigration power for ever.

It’s hard for me to reconcile his staunch support for White Australia Policy with his embrace of his multicultural identity.  He embodied patriotism in a way that no other person had done before and yet still found room for an ugly racism.  And it’s hard to dismiss it as merely as him being a product of his age: we expect so much more of our heroes and it sucks when they have these feet of clay.

Where Isaacs held a littleness of mind when it came to racial equality, he was visionary when it came to Federation.  I included a speech from Isaacs in my Contrarian’s Companion where Isaacs could see beyond the immediate nature of the federation debate into the future where we would stop thinking of ourselves as Victorians, New South Welshpeople, Tasmanians, &c., but think of ourselves only as Australians:

Let us consider for a moment what it seems to me has been entirely lost sight of: the reason of this Federation and the meaning of it. We possess as separate and distinct colonies a host of powers and authorities. Most of these are purely of local concern. Most of these can be best worked out by us as we now stand as different and distinct identities. With most of these things no one State is concerned with the management of the other, but there are certain matters-such as defence, quarantine, and various other things-we generally agree upon, in which we as a people say we are concerned, not as residents of Victoria, Tasmania, or any other colony, but because our interests and our desires are united. We say there is henceforth to be no distinction between us; let us blot out of our future history and out of our future politics the arbitrary fact that we are residents of different colonies, and if we start with that and we select these subjects, it is on the distinct basis that our interests are identical.

Not only did he fail to succeed in abolishing the States, he also failed to prevent the concession to the States in the form of the Senate.

Fortunately, this set back didn’t halt his career.  Following Federation, in 1905 he became Australia’s fifth Attorney-General.  Praised (sometimes backhandedly) for his capacity for work by Sir Robert Garran, Isaacs relished the position, having previously been the Attorney-General of Victoria.

We often speak now of the separation of powers doctrine where the Parliament passes the legislation and then an independent body, the Courts, interprets it.  In folk law, this is often considered an a priori fact but, back in the early days of Federation, the lines were not so clearly drawn.  Isaacs had been a member of the group who drafted the Constitution.  As Attorney-General, he was now responsible for ensuring legislation was within the power conferred on the Commonwealth by the Constitution.

In 1906, Isaac Isaacs was appointed to the High Court where he would now be involved in the interpretation of both the legislation he helped draft as Attorney-General, and the Constitution he helped draft (provisions of which he had vociferously opposed earlier).  This shouldn’t shock us.  Sir Samuel Griffith had all but written the Constitution by the power of his magnificent beard and was immediately appointed to the High Court as the Chief Justice upon Federation.

It’s important to bring up Griffith at this point and go on a bit of a detour into constitutional theory.  Even by 1906, Griffith had a clear view of how he thought the Constitution worked.  Later, Owen Dixon would write about anterior law to Australian law: a sort of body of law that exists prior and alongside Australian Constitutional law without which Australian Constitutional law doesn’t make sense.  To see why this is an interesting question, we need to look at the Preamble to the Constitution:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established

The important words to look at there are ‘the people’.  The idea this invokes is of the Constitution gaining authority and legitimacy through the agreement of the people of the soon-to-be-federated Australia.  But that’s not what happens in law.  As a strict function of law, the Constitution of Australia was an Act passed by the British Parliament.  In other words, unlocking what’s going on inside the Constitution, we can’t just look at the written words of the Constitution but, instead, this whole culture of Constitutions which stems back into British law and expands out into other colonies which break off from the Empire.

When Australia first Federates, we don’t really know what Australian Constitutional law is going to look like.  Griffith and Isaacs have completely different ideas of what they think the ideal situation will be.  Griffith draws upon this anterior law by referring to interpretations consistent with jurisprudence in the United States.  Griffith thinks that the Commonwealth is really a creature that exists at the pleasure of the States — consistent here with the American idea of States’ rights to limit the capacity of the Federal legislature.  For the first few years of the High Court, Barton (formerly the first Prime Minister) and O’Connor were happy to go along with Griffith.  In 1906, Isaacs and H.B. Higgins joined the Court and their outlook was very different.  Isaacs, particularly, was all about centralism, legalism, and he’s less likely to agree with American jurisprudence (preferring British).  Naturally, Griffith and Isaacs came to disagree sharply with each other on the Court.

Personally, I think Courts are maximally effective when they are set up in this way.  When you have exceptional legal minds that fundamentally disagree with each other on the Court, people have a greater opportunity to have important, difficult, and controversial cases heard fairly.  Not only can lawyers be more persuasive, but they can also be part of the mechanism which grapples with the big ideas of legal theory.  If you have a homogeneous Court where they all have fairly similar ideas and there’s not much creative disagreement, you get a stale Court.

Oh, there are bad sides to it: good luck finding the ratio where the justices writes separate decisions which come to a particular conclusion in different ways (don’t laugh; it happens).  Even so, the creative disagreement of Griffith and Isaacs must have been so much fun to work with.

The tension between Griffith and Isaacs was resolved when Griffith left the Court in 1919.  Barton left the year after and Knox became Chief Justice.  Over the next ten years, Isaacs is no longer outnumbered by the Griffith-Barton-O’Connor bloc and more decisions are handed down which have Isaacs’ clear hand on the rudder.  Perhaps the most famous of these decisions: the Engineers Case, where Isaacs was finally free to bring out the legalist tanks on State immunities.

Knox departed in 1930 and Isaacs was appointed Chief Justice.  The appointment doesn’t last long: ten months later, he became the first Australian-born Governor-General and completes his embodiment of the Sun Wukong myth.  He was there prior to Australia existing, but with the help of his incredible natural talents and his eagerness to meet challenges, he brings about an Australia in which he can be the first Australian head of state.

As I noted briefly, there are a few troubling moments — the racism is particularly troubling, he and Julius Stone disagreed strongly over the question of Israel, and so on and so forth.  On the other hand, this is the guy who embodied what it meant for a non-Indigenous person to be an Australian and to value that Australian identity alongside other aspects of their cultural and ethnic heritage.  He’s our first multiculturalist.  A racist — horribly racist — multiculturalist.

The fact that he’s not better known is a crime.  Culture wars, my foot.  If we’re not teaching primary school kids about this champ as part of the national curriculum, then our national curriculum should be cast into the flames.

Alas, Isaac Isaacs would not be able to keep his title as Australia’s greatest Chief Justice, but that’s a story for after the next two homeboys.

You have to fight for your rights… The Human Rights and Anti-Discrimination Bill v the World #auspol

Following a ‘victory’ against a particularly controversial provision of the Human Rights and Anti-Discrimination Bill, News Ltd and various ‘think tank’ trolls are hell bent on destroying the entire thing.

The debate is deplorable, but took on a fascinating element last week when Michael Sexton, writing in The Australian, made a rather peculiar claim:

In recent weeks former High Court judge Ian Callinan and Victorian Attorney-General Robert Clark criticised the draft federal legislation that would have made unlawful a range of conduct that was considered by the so-called victim to be offensive or insulting. ABC chairman James Spigelman made similar criticisms late last year. It now seems that these provisions of the draft bill will be withdrawn and reformulated.

For some years, however, commentators including James Allan and Janet Albrechtsen have attacked existing state and federal laws that make publications unlawful on the basis of notions such as insult, ridicule or offensiveness. I have written a number of pieces myself on the problem of these concepts in legislation.

But where is the response from those in favour of these laws? There hasn’t been one. Yet we know that there is no shortage of persons in influential positions who do favour these kinds of laws. The fact that there is such legislation on the statute books at the federal level and in most states and territories indicates that they were pushed through the parliamentary process by powerful lobby groups. [Source]

Powerful.  Lobby.  Groups.

To a certain extent, he is correct.  There’s a bit of a gap between public discussion of legislation and the shadowy world of the influential people discussing the legislation.  Similarly, however, there’s a gap between the public discussion of, say, climate change and the world of people who research and study climate change.  There’s also a gap between the public discussion of health regulation and the underworld of people who actually manage health regulation.  It turns out that the serious people having serious discussions about the Bill aren’t the megaphones trolling the public for circulation and link bait.

I bet you’re shocked, aren’t you?

Sometimes the public debate becomes so toxic that there’s no way for the shadowy figures to manage the processes effectively.  See, for example, the Henry Tax Review, the MRRT, the first Carbon Tax Scheme which the Greens and the Coalition tanked, &c., &c.  See also the provision in the Bill which was roundly attacked by a number of megaphones.

The provision was clause 19 of the draft bill:

19 When a person discriminates against another person, and related concepts

Discrimination by unfavourable treatment

(1) A person (the first person) discriminates against another person if the first person treats, or proposes to treat, the other person unfavourably because the other person has a particular protected attribute, or a particular combination of 2 or more protected attributes.

Note: This subsection has effect subject to section 21.

(2) To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:

(a) harassing the other person;

(b) other conduct that offends, insults or intimidates the other person.

It’s that last part which made commentators — from both sides of politics — freak right out.  The concern was that there ought not be ‘a right not to be offended’ and that this would have an unacceptable ‘chilling’ effect on ‘freedom of speech’.

We’ll get to those claims individually in a moment.  The first question is: did they read the draft Bill correctly?

Behold!  Clause 23:

23 Exception for justifiable conduct

Protected attributes to which this exception applies
(1) The exception in this section applies in relation to all protected attributes.

Exception for justifiable conduct
(2) It is not unlawful for a person to discriminate against another person if the conduct constituting the discrimination is justifiable.

Clause 23 then outlines a whole host of reasons why you might insult or offend somebody.  In other words, insulting or offending a person is only unlawful when it is not justifiable conduct.  It’s not an attack on ‘freedom of speech’.  It’s not a ‘chilling’ of free speech.  It’s plucking the weeds at the edge of the garden where the hundred flowers are blooming.

As a conservative, this is exactly what I want in an anti-discrimination bill.  I don’t want shock jocks and weirdoes taking pot shots at people for the sake of ratings.  I don’t see why a marginalised person in our community should be forced to feel insulted or offended in order to protect the freedom of speech of the wealthy, powerful megaphones.

So all the people who whinged and complained about clause 19 were really speaking out in favour of unjustifiable behaviour.  The freedom to offend and insult somebody unjustifiably is more important than promoting a civil society.  Many of them wouldn’t know that they’d asserted this position because most of them got to clause 19, stopped, and wailed as loudly as they could.

A mature concept of the freedom of speech is not one where any person can say whatever they like.  We already agree about this.  I can’t defame you.  I can’t say things which unjustifiably hurt your financial interest.  Despite recognising that I can’t hurt your financial interests without a good reason, people do not recognise that I can’t hurt your feelings without a good reason.  It is zany, weird logic that only persists because the same people crying about infringements on freedom of speech are the same people protecting their financial interests.

I can’t hurt you physically (there are laws restricting my Freedom to Strike; a dreadful chilling of my Freedom to Punch) but I can hurt you emotionally.  It’s the same reasoning behind ‘Mental illness isn’t as real as a physical illness’.  We refuse to consider them analogous.

But what it all should come down to is consent.  When I want to interact with you, I should seek your consent or have a good reason to interact in a particular way without your consent.  I should not be empowered to treat you however I want without regard for how you wish to be treated.  Jesus got it wrong: don’t treat others as you wish to be treated — treat others as they wish to be treated, unless they’re being unreasonable.

This is what clause 23 does.  It says: ‘People have a right to participate equally in society without feeling like they’re under attack.  If you want to perform an act which would upset or offend another person, you should have a pretty good reason for doing that.’

But we can’t have this conversation with Michael Sexton or others in the public arena.  Why?  Because the public doesn’t want to be told that, really, it ought to behave and be nice to each other.  The libertarian right and the anarchic left want the right to destroy civil society, to marginalise, and to be offensive.  That’s because the libertarian right and the anarchic left are all but run by mirror-image man-children.  It’s the same problem we have with Internet regulation: ‘But what if I really want something that I’m not allowed to have?  Whaaaaaaaaaambulance!’

The draft Bill was great.  Now the Attorney-General’s Department is trying to get around the public smear campaign.  But News Ltd and the Think Tank Trolls can smell blood.  They savaged a really excellent provision and now they’re seeking to tank the rest…

The Chief Justice Series: Adrian Knox and no-one answers

I can’t think of anything interesting to say about our second Chief Justice, Sir Adrian Knox.  Indeed, he’s the one that I always forget.  As far as I’m concerned, Adrian Knox was the pretend Chief Justice — a controversial claim to be sure, but one with which I’m sure you’ll agree come the end of this blog post.

It’s 1919 and the High Court has come to an end of its golden years under Chief Justice Griffith.  For nearly two decades, Griffith had been interpreting the Constitution which he had all but written with his bare beard.  These early days of Federation seem so alien to us now.  The rigid views of separation between the branches of government — merely implied by the structure of the Constitution — had not quite sunk in, and nobody thought it in the least bit strange that the man who had written the thing would be interpreting the thing.

It gets a bit weirder.  Sir Edmund Barton, the first Prime Minister of Australia, was also one of the foundation Justices of the High Court, as was Sir Richard O’Connor who was a Senator in the first term of the Australian Parliament  (Court formed two years after Parliament).

In other words, the first three people to sit on the High Court to interpret the Constitution and Acts of Parliament were two guys who voted on the Acts being interpreted and the guy who wrote the Constitution.  Separation be damned.

There’s another point here that I’ll quickly make.  Since the publication a month or two ago of Jenny Hocking’s Gough Whitlam: His Time, there has been a lot of criticism of Sir Anthony Mason.  Although I’ll write about him in due course, the criticism is fairly ignorant.  According to supporters of Whitlam, the Governor-General should only take advice from the Government (particularly the Attorney-General).  For the Governor-General to consult the High Court for legal advice is completely improper and unconstitutional and wrong and conspiratorial and nearly caused the horses to eat each other…

Griffith and the High Court advised the Governor-General quite regularly.  The role and limitations of the Governor-General are not easy to understand in the Constitution, so why not ask the guy who wrote it for his advice?  Nobody thought it was improper.  If Mason advised the Governor-General (as indeed it appears), it had a solid precedent in the form of Sir Sam.

But back to Federation!  It’s in 1906 that the Court expands, taking in one of its most influential and controversial justices, Sir Isaac Issacs (who, by the way, had been Attorney-General of Australia), and H.B. Higgins (who had been the Member for North Melbourne).  In 1913, the Court expands again: Duffy, Powers, Padlington, and Rich.  As Barton had died in 1912, this brought the number of justices to seven.

It’s this 1913 intake that breaks the trend: not one had been a member of the Federal group.  Powers had been Government Solicitor (so Gageler’s appointment wasn’t as unprecedented as some suggested) and Duffy set the trend for high-flying K(Q)Cs to be appointed to the Court.  But we still don’t see the trend — so common since the 1940s — for people with vast judicial experience to be appointed to the Court.  In 1913, there were two people with prior experience: Griffith and Rich.

And so here we are in 1919 and this glorious age is at an end.  Griffith is retiring to look after his health (he will be dead within the year) and we have the task of finding a new Chief Justice.

Enter: Adrian Knox.  Born into Australia’s sugar industry (his father founded C.S.R.), Knox was born into luxury and privilege.  He attends the best schools.  He studies Law in the UK.  His family’s political connections ensure that he’s well set up with a practice, even before his elder brother’s untimely death.  He’s a gambler — owns enough horses — but a hard worker.  His experience with the High Court is entirely from appearing before it.

And thus Prime Minister Billy Hughes appoints him as Chief Justice.

But although Knox had appeared in enough cases before the Court, he hadn’t really engaged with the deeper questions still burning in Australian Constitutional law: what are the limits of the Commonwealth’s power? what does it mean for Australia to be a federation? and how should the Constitution be interpreted?

Griffith — a giant of a man — had been very confident to follow the interpretative path of the US rather than that of the UK.  Decisions of SCOTUS influenced him a lot, particularly its views of State rights.  The Commonwealth, he felt, was a convenience of the States.  Although Federated, the Commonwealth should leave the States alone wherever possible.

Sitting on the Court, however, are two men with very different ideas — Isaac Isaacs and H.B. Higgins.  Isaac Isaacs loathed the States (and, to his credit, the Senate as well).  If the whole point was to become one Australia, why on Earth would the powers of the States be protected?  Surely, they were remnants of a less sensible age: the 1800s!  It was the 1900s now and well past time for there to be one Australia.

With Griffith, Barton, and (by now) O’Connor gone, Issacs and Higgins were a lot more influential.  Knox, though proficient in application, doesn’t come to grips with the deeper issues of legal theory and gets swept along in Issacs’ tremendous energy.

Nowhere is this more obvious than in the Engineers’ Case in 1920.

Up until this point, the States had an ‘implied immunity’ from the Commonwealth.  The case brought before it was whether the Commonwealth could use one of its powers to interfere with an industrial dispute involving one of the States (Western Australia).  Isaacs had been itching for a fight over this since the late 1800s but Griffith had kept him in check.

Isaacs, writing the joint judgement for Engineers’, is unleashed.  He not only says that there’s no implied immunity but he completely changes the course of Constitutional interpretation in Australia both in favour of centralisation and in favour of literalism.

This would have been the opportunity for Knox to show to the world that he was awake and ready to take on the job of Chief Justice.

Instead, for the next eleven years, he’d be eclipsed by the outstanding Isaacs.  Even where Knox wrote his own judgement, Isaac’s would be better.  Clyde Engineering Co Ltd v Cowburn, Knox and Duffy wrote a judgement, but it’s Isaacs’ exposition of the ‘covering the field’ test that’s remembered.

In 1930, Knox retired to manage a business he had inherited.  An unremarkable Chief Justice for a remarkable period in the High Court’s history.

The Chief Justice Series: Sir Samuel Griffith and his beard

When people talk of the crazy crap exported by Queensland, nobody mentions Samuel Griffith.  Why?  He was totally boss.  And he had a totally boss beard.  Check out this beard:

Not enough beard!

Sir Samuel Walker Griffith PC GCMG KCMG QC

 

Awesome beard.

He was the first Australian translator of Dante’s Divine Comedy.  Queensland, take a bow.  Actually, stop bowing.  Stop pumping out the people you’ve currently got and get back to manufacturing Sam Griffiths.  Mass produce them.  You know I’m right.  Check out a picture of Campbell Newman if you think I’m wrong:

You don’t see that ‘Can Do’ nonsense behind Sir Sam, do you?  No.  Why?  Because his beard says it all.  ‘I am here to Federate the Colonies by sheer force of beard.’

He was born in Wales and spent a bit of his childhood in NSW, but Queensland should still feel proud for choosing him to represent them in all the important federation debates.  He was known as ‘Oily Sam’ because he could argue on any side of a debate.

He was a lover of Classics.  At the University of Sydney, he was awarded a first-class honours degree in Classics and Mathematics (only took jurisprudence as an elective).

Even with this background (perhaps because of this classical/mathematical mind… cough), he was an amazing legal mind.  In The Australian Constitution, Geoffrey Sawer wrote:

Griffith (1843-1920) was the most gifted jurist and constitutional scholar to engage in the federal movement, and had the greatest individual influence on the shape of the Federal Constitution.

It seems almost a shame that he was so rabidly pro-States.  Despite Isaac Isaacs’ flawless logic about the continued existence of the colonies (we’ll get to that in a later post)

After drafting the Constitution, he flirted with returning to politics (he was Premier of Queensland pre-Federation), but was offered and accepted the role of Chief Justice of the High Court.

Crowning Moment of Awesome:

Kryger v Williams (1912).  Everything you’ve wanted to know about Australia’s intolerance for dopey arguments about religion is summed up by Griffith:

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion.

If Griffith had been Chief Justice of the Supreme Court of the United States, how far do you think the recent arguments about pro-life, religious employers having to provide health care which includes access to birth control would have got?

Zero.  Zero far.

Sun in the sky, you know how I feel… Why @MargaretSimons is wrong about RDA 18C #auspol

In ABC’s The Drum yesterday, Margaret Simons continues to make very strange comments about section 18C of the Racial Discrimination Act.  Admittedly, Simons is known for making strange comments in this space, having once championed a ‘Pub Test’ for newspaper content: if you can hear it opined in a pub, you should be able to read it on the front page of a newspaper.

I even agree with Abbott about the obnoxious nature of Section 18C of the Racial Discrimination Act, which was used against an Andrew Bolt column. The Bolt piece was a nasty and sloppy piece of commentary, but it should not have been illegal [sic]. [Source: Simons, ‘Media regulation: Abbott speaks sense and nonsense‘, ABC The Drum]

Simons — along with people like Jonathan Holmes, Chris Berg, the IPA trolls, and Tony Abbott — are outraged at the idea of a ‘hurt feelings’ test.  18C makes it unlawful to be frank and fearless with your freedom of speech which, of course, must be identical to the freedom to offend.  The assumption is that 18C of the Racial Discrimination Act is a way for people with thin skins and hypersensitivity to silence people who make them cry.

Utter, utter nonsense.

Let’s go back to the Act itself:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

(2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)  causes words, sounds, images or writing to be communicated to the public; or

         (b)  is done in a public place; or

(c)  is done in the sight or hearing of people who are in a public place.

(3)  In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.  [Source: Racial Discrimination Act 1975 (Cth) s18C]

So there are two prongs to an unlawful act under 18C.  First, you perform an act in public which a reasonable person would think is likely to upset a person or a group.  Second, the act is motivated by the ‘victim’s’ race or ethnicity, &c.

It’s not just a hurt feelings test.  It’s a ‘don’t be a jerk’ test.  Unlawful acts are only those which are reasonably likely to upset somebody and which are motivated by race/ethnicity.

But that’s not even the full story.  Check out 18D:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or

(ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. [Source: ibid. s18D]

Where 18C outlines what an unlawful act would be, 18D provides a defence for upsetting a person (or group of people) based on the colour of their skin.  18C and 18D together say, ‘People shouldn’t feel humiliated for the colour of their skin and, if somebody does humiliate them based on the colour of their skin, they should have a really good reason for doing so.’

 

There’s an important underlying philosophy to 18C and 18D.  We are supposed to live in something like a ‘Republic of Reasons’.  In order for me to do some harm to you, I need to have your permission or a really good reason to do it.  For our social order to function, we rely on a problematic notion of consent to inform the extent to which one person interacts with another.  This is what’s being reflected in 18C and 18D.  People of all skin colours should be able to enjoy the fruits of civilisation without being subject to ridicule and humiliation.  And if they are ridiculed or humiliated, there better be a damn good reason for it.

The real question here is not whether 18C goes too far.  The question is whether it goes far enough.

Simons is correct when she says Abbott makes sense in places, she just incorrectly identifies those places.  As I’m an atheist, it will probably shock readers to know which part I think he gets correct:

If it’s all right for David Marr to upset conservative Christians, why is it not all right for Bolt to upset activist Aborigines?  [Source: Tony Abbott ‘The job of government is to foster free speech, not to suppress it‘ The Australian]

The question (if questions can have a truth-value) is correct.  Why is it all right for David Marr to upset conservative Christians?  If we apply the same reasoning from before (about being in a Republic of Reasons) then there should be some good reason for Marr to ridicule or humiliate a section of society based on their religious beliefs.  Indeed, that goes for a lot of the pop-atheist crowd who seem to think they’ve got some God-given right to ridicule and humiliate Christians just because they have different beliefs.

You could argue that people choose their race but don’t choose their religion.  Not only is this naive (most people don’t choose their religion) but it also fails to grapple with the point.  Why does choice matter?  Why shouldn’t people be able to choose what they like without being ridiculed or humiliated for those choices?  I’m on ‘Team Non-Biologically Determined’ when it comes to the question of sexuality, but I’m also on ‘Team If You’re Attracted to The Same Sex but Don’t Have the Gay Genes You Have Made An Awesome and Perfectly Legitimate Choice and Nobody Should Question Make You Feel Bad for That’.  It’s not choice vs non-choice; it’s respect vs disrespect at play here.  In a sense, opponents of 18C are asking us to respect the choice of people to humiliate and ridicule others based on their race.  People who don’t want to extend 18C to religion are similarly asking us to respect the choice of people to humiliate and ridicule others based on differences of belief.

Which brings us back to Simons.  Simons believes that we should have legislative room to be disrespectful to each other without the consent of the person being harmed.  She couches this in the entitled and undergraduate language of ‘freedom of speech’.  It is clear that, if we want to live in a Republic of Reasons, we need a more mature model of this freedom, especially when it affects the apparent right of others to engage in society unmolested.