Are Bills of Rights immoral? A reply to @ashhirsch #auspol #auslaw

In response to an article I wrote arguing that rights legislation was ineffective and cumbersome, Asher Hirsch responded with a fairly common assertion:

[tweet https://twitter.com/ashhirsch/status/410537128649428992]

The best response to this assertion was from one of the drafters of the Australian Constitution, Alexander Cockburn:

Why should these words be inserted? They would be a reflection on our civilization. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilization. People would say-“Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice.” [Source]

It’s sometimes been said that Australia has a ‘she’ll be right‘ attitude towards legislated rights.  In a sense, that’s correct.  For the most part, we expect Parliament to share our moral intuitions and not to pass laws which are repugnant to those intuitions.

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That’s me in the corner… On the question of s116 of the Constitution #auslaw

The Guardian was lovely enough to publish one of my articles arguing that Australia should avoid having a Bill or Charter of Rights.  The argument there is fairly straightforward.  Despite popularising the Bill of Rights, the United States has a shocking human rights record (the example I chose was McCarthyism); thus, Bills of Rights aren’t terribly effective.  Secondly, because the Bill of Rights is very broad, it has resulted in perverse outcomes (the example I chose was the Westboro Baptist Church’s picketing of funerals — the First Amendment protects them but not the family burying a loved one).  Further, because we lack a Bill or Charter of Rights, Australia has been able to score some impressive legal victories, such as the Plain Packaging Tobacco legislation which isn’t possible in other jurisdictions.

The point is summed up here:

When society lost interest in upholding the lofty rhetoric of rights, the First Amendment didn’t come to the aid of the heretics. A Bill of Rights has not stopped the US trying to find a new definition of pain and suffering in the belly of offshore detention centres. Conversely, when the Australian Government sought a referendum to acquire the power to pass anti-Communist legislation, Australians voted it down. The best rights protection will always be an engaged and critical electorate, not a parliament with rusted on training wheels.

This doesn’t sit well with a lot of people.  Challenging the assumptions behind human rights legislation is ipso facto a difficult task.  Our culture ideologically prepares us to accept rights as legal norms, making it difficult to even express the idea that human rights are problematic.  Thus, I’ve had quite the interesting range of feedback.  Some people thought I was attacking human rights out of a libertarian campaign to take people’s property.  Some people thought I was making an anti-Indigenous statement.  And one person pondered whether or not I was actually Andrew Bolt.

A few commentators and a few e-mail correspondents had some interesting responses, particularly in relation to this paragraph:

Our constitution also fails to defend religious freedom. In Snyder v Phelps, SCOTUS discovered this right protected the Westboro Baptist church’s right to protests at military funerals. Our deficiency has meant Australian courts might consider other priorities, such as the welfare of children. In a 1978 case called The Marriage of Paisio, the family court found that “certain practices, albeit given a veneer of religious justification, are in fact so positively harmful to the welfare of the children that they must be removed from the influence of those who advocate such practices”.

One person took umbrage with this in fairly strong terms: ‘Section 116 of our constitution explicitly protects religious freedom. It is worded almost identically to the US religion clauses – though Australian courts have read them somewhat differently. I wonder if you would correct your blatant error of fact.’

I’ve written about s116 before but, in the interest of not writing turgid legal essays, I kept away from drilling into a thorough analysis of the section. So let’s go on an adventure through the wonderful world of s116 of the Constitution and why it’s not what you think it is.

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The Second Amendment: An argument against an Australian Bill of Rights #auslaw

I usually put some song lyrics in the title.  A few times now I’ve discussed issues where the fear of looking too glib has meant that I can’t go with that convention.  This is another of those.

First things first, I do not understand why civilians can purchase any kind of gun.  Even for farmers.  When I was a kid, we had guns on the property.  They were used twice: once to deal with a snake, another to deal (unsuccessfully) with a fox.  What sort of moron uses a gun to deal with a snake?  My father.  As I grew up, only the weirdo kids at school were into guns.  They were exactly the kind of people that you didn’t want anywhere near guns.  ‘Maaaate, we shot a defenseless creature.  Awesome.’  Although I know significantly fewer farmers now that I’m an employable nerd, the ones that I do know don’t have guns.  Or any interest in them.  In conclusion, why are guns able to be purchased by individuals?

Second things second, the shooting at the primary school was horrible.  I’m not usually the kind of person who gets emotionally affected by news reports, but this one made me feel ill.  There was nary a minute between seeing the item flash up on my newsfeeds before people went immediately to their stock standard battle positions regarding the Second Amendment.  What is it?  Are we that eager to have opinions about things?  Do we have such an incredible need to find somebody to blame (apart from the obvious person)?  It was just utterly vulgar.

Yesterday’s atrocity is yet further evidence why Australia should not adopt a Bill of Rights.

In 1996, the Howard Government was able to pass legislation to severely restrict the sale of firearms.  It was able to do this because there are very few restrictions on Parliament’s ability to pass legislation (provided there’s a head of power to do so).

When the drafters thought up the Second Amendment, they had no way of knowing that it would result in the school shooting.  No way at all.  When legislation is passed, it’s taken out of the author’s hands and into the legal ether of the court system.  It takes on a life of its own.  Some people might argue that this is a good thing: the Refugees Convention, for example, is doing things that the people who wrote it could not possibly have foreseen.  Other people (like me) look at this with a great deal of suspicion.  If the legislation is taking on a life of its own, how is it being controlled?  In whose interest is the legal principle morphing?

For most laws, there’s an easy remedy to this problem: pass a new law!  Intellectual property law is throwing up weird outcomes?  Law reform!  Contract law is throwing up weird outcomes?  Law reform!  Too many individual pieces of human rights legislation?  Omnibus law reform!

It’s bits of legislation which are difficult to change which throw up huge problems.  The Refugees Convention extends rights to asylum seekers tacitly.  Most of our problems in the debate is a result of people being imprecise with terminology.  If the Refugees Convention were easy to amend, it could be clarified to extend rights to asylum seekers.  Instead, we know that if the Refugees Convention were proposed today, nobody would sign it.  As a piece of legislation, it’s immutably stuck in the past.

Constitutional laws are similarly problematic.  Take section 25 of the Constitution:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

I still remember the ‘WTF?’ face I pulled when I first read that section.  Holy crap, it looks horrible.  Disqualifying races from voting?  Oh, those racist white male drafters of the Constitution.  What a bunch of racists.

It turns out that the person who proposed the section, Andrew Inglis Clark, was a progressive visionary.  Section 25 was a way of motivating States to be non-discriminatory in their electoral laws.  If the law of any State discriminates against a race in their electoral laws, the State will be penalised when it comes to representation in Parliament.  It’s really clever.

If you read the YouMeUnity document, you don’t get that background.  I guess ‘Be Informed’ just means ‘Here is the information we want you to have’.  Informed referenda are, it seems, overrated.

Section 25 now looks like a weird bit of historical quirk.  Do we still need this protection in the Constitution?  On the other hand, do we gain anything by removing the protection?  All interesting ideas that you won’t find explored on the websites of people interested in the proposed referendum.

Other sections of the Constitution have played out strangely and, indeed, completely contrary to what the drafter (or, especially, Sam Griffith) thought they would.  Consider  s51(xxxv):

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State

Until the Engineers’ Case, nobody would have thought that this line would signal an end to implied intergovernmental immunities.

Sir Isaac Isaacs sure showed them.

Short of a referendum, Sir Isaac Isaacs breathing life into the conciliation and arbitration power will be the moment where the course of Australian law changed.  Sure, he got it right on this occasion (screw the States) but this could have gone in an entirely different direction.

And that’s the problem with Constitutional rights.  You don’t know now how the right will end up being deployed tomorrow.  Having a well regulated militia for the security of the State probably sounded like an intuitively obvious assertion back in the 1700s.  Today, we’re affected by another gun-related tragedy.

They’re not half as bad as me say anything and I’ll agree… Geoffrey Robertson and Big Tobacco

Advocates of an Australian Charter of Rights concentrate almost exclusively on its humanitarian benefits, ignoring the obvious ways in which the wealthy and powerful will exploit their good intentions.  One of the least critical champions of an Australian Charter of Rights is celebrity QC Geoffrey Robertson.

In Statute of Liberty, Robertson outlines a proposal for a charter of rights.  The book exemplifies the shallowness of thought which has plagued Robertson in recent years (see, for example, The Case Against the Pope).  While his arguments in favour of a charter of rights are eloquent and articulate (if wrong-headed), he dismisses any opposition to his case as ‘charterphobia’.  An interesting development in Australian law is about to show precisely why the ‘charterphobia’ was rational.

The Australian Government has outlined its proposal to enforce plain-packaging for cigarettes.  Various health groups are in favour of it and it doesn’t seem as if the opposition will oppose it.  British American Tobacco Australia, on the other hand, will and will mount a case defending their intellectual property rights.

Let us imagine, for a moment, if Robertson’s charter had been adopted complete with its ‘property’ right.  Instead of being a difficult argument to mount — that BATA has an investment in its brands which should be protected by law — Robertson would have given them a free kick.  It would have been trivially easy for BATA to argue that the charter of rights protects their property and, as such, the Government’s proposal is unlawful.

When thinking about rights issues, it’s not enough to trumpet what you’ll receive; you also have to wonder what others will take away.  We dodged a bullet.

I like to wait to see how things turn out… but we had the better constitution

There were lots of strange claims surrounding the recent report into whether we should have a Bill of Rights in Australia.  The strangest of these were those which compared us unfavourably to the United States.  In the U.S., it was claimed, the citizens enjoy the benefits of a vast array of rights which are completely and totally denied to Australians.

It is sad that we seem to be so keenly aware of the United States’ Bill of Rights and yet so ignorant of history.  There are such excellent examples of how the Australian system afforded much better protection of our rights than were ever recognised in the U.S.

In the 1950s, for example, the Menzies Government passed legislation to outlaw the Communist Party of Australia.  In quite an amazing judgement, the High Court of Australia declared that the provisions of the Communist Party Dissolution Act 1950 were invalid in whole.  Menzies tried to get around this with a referendum but failed.

Compare this with a similar situation in the United States.  The Communist Control Act 1954 was passed and several other Acts were updated to provide more legitimacy for what had become McCarthyism.  Despite several cases going before the Supreme Court, SCOTUS never protected the rights of citizens to hold pro-Communist/Socialist beliefs.

The U.S. system works by defining rights — despite handwaving in the 9th the fact that it’s not limiting the number of rights apparently held by citizens.  In Australia, we don’t.  We have a judicial system which uses a commonsensical attitude which prevents legislatures from ‘gaming the rules’.  As McCarthyism demonstrated, the same was not true in the U.S.  Why, then, we would idolise the Bill of Rights completely baffles me.