About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
Friday, May 15, 2009
The Statute of Liberty - Chapters 5, 6, and 7
Chapter 5
This chapter makes out some interesting arguments as to why Australia should adopt a charter of rights, including the claim that we are otherwise cutting ourselves off from international developments in human rights law. Also, it would be useful in various contexts to have a statement of the values that we stand for. One interesting claim is that we would have a definitive set of values, and could refuse to accept immigrants who were not prepared to accept it.
I'm not entirely convinced. Some of the values we stand for, such as what is enshrined in the Millian harm principle, are not the kind of thing that could easily go into a charter of rights. Such a charter would not exhaust the sorts of principles that should guide the development of the law in Australia. Even with the comment about immigrants, I'm not so sure. After all, many of the values that I would like to see widely accepted, and would at least contemplate imposing on immigrants, are not necessarily shared even by the majority of Australians (e.g. values to do with morphological freedom). Is it reasonable to expect immigrants to sign up to values that we don't expect to be accepted by the majority of Australians, let alone all Australians? This is a pluralistic society, after all (though acceptance of that is an important value).
Robertson rightly hammers the importance of freedom of speech and bemoans the opposition to further constitutional protection of free speech from the Australian media, even as they engage in fairly futile lobbying for statutory reform. This is one of the best passages in the book so far.
He defends the incorporation of positive rights, partly on the basis that these would be construed in a fairly narrow way. I.e., the courts would not get into issues of how much money should be spent on particular programs, such as health or education. He cites a couple of South African cases where the courts did not look at such macro issues but (in one case) at a refusal to make a specific HIV drug available and (in the other case) at the effect of government housing policy on the very poorest.
This is the best defence I have seen so far of a (very limited) form of judicial decision-making on matters of government policy, although I am still not convinced. I'd like to know a lot more before being persuaded that there is a way to write in positive rights, such as rights to provision of health care and housing, without empowering the courts to enter into open-ended political investigations, and encouraging them to make judgments about contentious issues of political discretion that normally are left to the electorate to decide when it chooses between rival party platforms. It's one thing for the courts to be required to enforce the boundary lines within which legislatures and executive governments should confine themselves, and to declare when the state has overstepped the mark. It's another for a court to be picking and choosing among the numerous legitimate options that governments always have when they act within their powers. Within appropriate boundaries, governments and alternative governments need the discretion to consider and develop a wide range of approaches to funding priorities and the design of programs.
I'm not totally dogmatic about this problem, and am open to persuasion. But Robertson is going to have to do more (in this book or elsewhere). In particular we need to see exactly how the work of judges in enforcing positive rights - where the duties of governments are vague and largely discretionary - will be confined, principled, and structured. These are duties of imperfect obligation, and it is not the role of the courts to shape how they will be given effect.
Perhaps the later chapters will give us enough of the fine print, but meanwhile I'm sceptical.
Chapter 6
This is an interesting chapter on the British experience with a Bill of Rights, putting some of the criticisms into perspective, and arguing that the experience has been positive. An interesting and persuasive chapter, though many of the issues dealt with under the Bill of Rights in Britain seem to me to be more like issues that should either be picked up in political debate over ordinary legislation or dealt with by enhancement (where needed) of administrative law. Accordingly, I'm still not convinced that any kind of constitutional provision in Australia should go as far as the content of the British legislation.
Robertson also discusses the criticism that declarations of incompatibility would, in Australia, be unconstitutional, as they would be advisory opinions. Robertson rejects this claim, but I find his discussion inconclusive, at best. They still look like advisory opinions to me, if they merely tell the parliament that a provision is inconsistent with the charter of rights - and if this has no legal effect on the substantive rights of the parties (since the charter of rights does not prevail in the event of inconsistency).
I suppose that extra bells and whistles might be introduced to get some sort of legal right that amounts to more than an advisory opinion - but less than striking down the impugned law for constitutional repugnance - but I'm not impressed with any of the proposals I've seen so far. I'll do some more work on this, but at the moment it looks to me like a big problem with any charter of rights that is not constitutionally entrenched and follows the "dialogue" model.
Chapter 7
This chapter responds to some of the critics of a charter of rights. The responses are quite cogent, and the best thing in the chapter is the step by step demolition of Bob Carr's examples of supposedly bad judgments from overseas. Carr seems to have a lot of his facts wrong and/or gives distorted, one-sided accounts.
That's a familiar story to me: supposedly bad judgments that become the subject of horror stories often turn out to make a lot more sense when you go to the judgment itself, rather than rely on a one-sided description of it. That doesn't mean that the judges always get it right, but even cases that seem to be wrongly decided are seldom just crazy.
Sometimes we do see truly activist judges, or groups of judges associated with a particular court (I can think of examples from my past experience of the court system). It's certainly true that lower-level judges and tribunal members can sometimes be overly enthusiastic about giving teeth to whatever legislation they are dealing with, even if, correctly interpreted, the legislation applies to few real-life situations. Such over-enthusiasm can cause problems, and it's wise to take it into account when enacting legislation. However, it tends to get checked higher in the system. When it's claimed that a whole series of crazy judgments have emanated from the heights of a foreign legal system - such as that of the UK or the US - something is usually not right about the claim. Jurists at those heights have biases, and they can go wrong, but they're not fools and they're not reckless.
This chapter makes out some interesting arguments as to why Australia should adopt a charter of rights, including the claim that we are otherwise cutting ourselves off from international developments in human rights law. Also, it would be useful in various contexts to have a statement of the values that we stand for. One interesting claim is that we would have a definitive set of values, and could refuse to accept immigrants who were not prepared to accept it.
I'm not entirely convinced. Some of the values we stand for, such as what is enshrined in the Millian harm principle, are not the kind of thing that could easily go into a charter of rights. Such a charter would not exhaust the sorts of principles that should guide the development of the law in Australia. Even with the comment about immigrants, I'm not so sure. After all, many of the values that I would like to see widely accepted, and would at least contemplate imposing on immigrants, are not necessarily shared even by the majority of Australians (e.g. values to do with morphological freedom). Is it reasonable to expect immigrants to sign up to values that we don't expect to be accepted by the majority of Australians, let alone all Australians? This is a pluralistic society, after all (though acceptance of that is an important value).
Robertson rightly hammers the importance of freedom of speech and bemoans the opposition to further constitutional protection of free speech from the Australian media, even as they engage in fairly futile lobbying for statutory reform. This is one of the best passages in the book so far.
He defends the incorporation of positive rights, partly on the basis that these would be construed in a fairly narrow way. I.e., the courts would not get into issues of how much money should be spent on particular programs, such as health or education. He cites a couple of South African cases where the courts did not look at such macro issues but (in one case) at a refusal to make a specific HIV drug available and (in the other case) at the effect of government housing policy on the very poorest.
This is the best defence I have seen so far of a (very limited) form of judicial decision-making on matters of government policy, although I am still not convinced. I'd like to know a lot more before being persuaded that there is a way to write in positive rights, such as rights to provision of health care and housing, without empowering the courts to enter into open-ended political investigations, and encouraging them to make judgments about contentious issues of political discretion that normally are left to the electorate to decide when it chooses between rival party platforms. It's one thing for the courts to be required to enforce the boundary lines within which legislatures and executive governments should confine themselves, and to declare when the state has overstepped the mark. It's another for a court to be picking and choosing among the numerous legitimate options that governments always have when they act within their powers. Within appropriate boundaries, governments and alternative governments need the discretion to consider and develop a wide range of approaches to funding priorities and the design of programs.
I'm not totally dogmatic about this problem, and am open to persuasion. But Robertson is going to have to do more (in this book or elsewhere). In particular we need to see exactly how the work of judges in enforcing positive rights - where the duties of governments are vague and largely discretionary - will be confined, principled, and structured. These are duties of imperfect obligation, and it is not the role of the courts to shape how they will be given effect.
Perhaps the later chapters will give us enough of the fine print, but meanwhile I'm sceptical.
Chapter 6
This is an interesting chapter on the British experience with a Bill of Rights, putting some of the criticisms into perspective, and arguing that the experience has been positive. An interesting and persuasive chapter, though many of the issues dealt with under the Bill of Rights in Britain seem to me to be more like issues that should either be picked up in political debate over ordinary legislation or dealt with by enhancement (where needed) of administrative law. Accordingly, I'm still not convinced that any kind of constitutional provision in Australia should go as far as the content of the British legislation.
Robertson also discusses the criticism that declarations of incompatibility would, in Australia, be unconstitutional, as they would be advisory opinions. Robertson rejects this claim, but I find his discussion inconclusive, at best. They still look like advisory opinions to me, if they merely tell the parliament that a provision is inconsistent with the charter of rights - and if this has no legal effect on the substantive rights of the parties (since the charter of rights does not prevail in the event of inconsistency).
I suppose that extra bells and whistles might be introduced to get some sort of legal right that amounts to more than an advisory opinion - but less than striking down the impugned law for constitutional repugnance - but I'm not impressed with any of the proposals I've seen so far. I'll do some more work on this, but at the moment it looks to me like a big problem with any charter of rights that is not constitutionally entrenched and follows the "dialogue" model.
Chapter 7
This chapter responds to some of the critics of a charter of rights. The responses are quite cogent, and the best thing in the chapter is the step by step demolition of Bob Carr's examples of supposedly bad judgments from overseas. Carr seems to have a lot of his facts wrong and/or gives distorted, one-sided accounts.
That's a familiar story to me: supposedly bad judgments that become the subject of horror stories often turn out to make a lot more sense when you go to the judgment itself, rather than rely on a one-sided description of it. That doesn't mean that the judges always get it right, but even cases that seem to be wrongly decided are seldom just crazy.
Sometimes we do see truly activist judges, or groups of judges associated with a particular court (I can think of examples from my past experience of the court system). It's certainly true that lower-level judges and tribunal members can sometimes be overly enthusiastic about giving teeth to whatever legislation they are dealing with, even if, correctly interpreted, the legislation applies to few real-life situations. Such over-enthusiasm can cause problems, and it's wise to take it into account when enacting legislation. However, it tends to get checked higher in the system. When it's claimed that a whole series of crazy judgments have emanated from the heights of a foreign legal system - such as that of the UK or the US - something is usually not right about the claim. Jurists at those heights have biases, and they can go wrong, but they're not fools and they're not reckless.
The Statute of Liberty - Chapters 3 and 4
Chapter 3
Still moving slowly. Robertson gives quite a good short account of Australia's constitutional history, and emphasises how little we have in the way of constitutional rights. There's not much here that was unfamiliar to me, though I suppose it's good to provide a popular audience with this sort of basic information.
He's starting to reiterate the point that he wants a charter of rights to incorporate some deep-seated and distinctive Australian values, thought it's unclear what these are, apart from some kind of celebration of the Aboriginal peoples of the country for "their historic place on our land and in our imagination."
Okay, there's something superficially attractive about the idea of distinctive Australian values, but it also has its dangers: this is a pluralistic society, and we need to be careful before we impose a particular set of values that is not shared by everyone. I'm going to want to know just what these "Australian" values are before I'm happy to incorporate them in a legal instrument that has application to everybody - including people whose values might be somewhat different.
Robertson starts to explain them in the next chapter ...
Chapter 4
This begins with a discussion of the early years of Australia. By this point we are starting to get some oddities. For example, on page 81, Robertson describes Arthur Phillips' insistence on proper provisioning of the First Fleet and equal sharing of rations. In memory of this, and in memory that we helped include economic and social rights in the UDHR, he wants us to opt for a charter "that includes economic and social rights to a basic minimum of food, shelter and medicine."
That seems like a bizarre reason to include such positive rights. Surely, if rights such as these are going to be included in a constitutional instrument it isn't to memorialise certain events that most living Australians would seldom (if ever) think about. It is because we don't trust future governments to provide for even a basic social safety net, because we think that the failure to do is justiciable, and because we believe that this issue needs to be given such high priority as to justify constitutionalisation (in an attempt to tie the hands of future governments and electorates).
I have real reservations about this. All of us who are not extreme libertarians do want some kind of social and economic safety net, which means providing for it by legislation. But the problems of catching everyone, no matter their circumstances, are complex and considerable. At the same time, the detail of just what should be done is a matter of day-to-day political debate. It is not something that readily lends itself to constitutionalisation and oversight by the courts. I'm going to need better arguments as to why the latter is needed in respect of positive rights to the resources that make up a social safety net.
Robertson then asks for a "right to be free of visual desecration" (page 83); this seems to be a positive right against governments that they prevent ugly developments such as the Sydney building known as "the Toaster", Blues Point Tower, and the Cahill Expressway, all of which spoil views of Sydney Harbour. This is really a bit hard to take. I can see a need for planning laws to balance utilitarian considerations against aesthetics, but is this really the sort of thing that we want in a constitutional document?
Robertson then wants "the right to engage in ethical scientific experiment" to be enshrined in a charter of rights (page 83) in memory of Australian medical pioneers, including those who pioneered IVF. Again, that seems like a very odd reason for including some kind of right to pursue scientific inquiry. If this is meant to be simply a negative right against the state - a right not to have certain kinds of scientific inquiry banned - then it might be desirable. But the word "ethical" gives away with one hand the very right that is granted with the other. Of course governments that ban certain kinds of scientific experiments believe that they are banning them because they are "unethical". In a pluralistic society, however, there are many different views as to what is or is not "unethical". Are we really going to hand over to the courts the power to determine whether or not a law banning, say, research on 15-day-old human embryos is unethical by some supposedly "correct" standard? Perhaps we do want to have some sort of constitutional protection for the right to pursue science, but if so it will need to be given meaningful protection. It's no use preventing governments from banning certain kinds of science if all they have to show is that the science concerned was "unethical" by some standard that a court might or might not agree with. Why not a tougher test such as the requirement for the state to demonstrate a compelling state interest?
Robertson then wants a guarantee of trial by jury for any crime with a prison sentence of more than one year. The basis of this seems to be that juries are able to give sympathy verdicts, and this provision would honour the many sympathy verdicts given by British juries that saved convicts from the gallows and got them transported to Australia in the late 18th and early 19th centuries. Again, that seems like an obscure reason to support such a right. If it is really so important to have jury trials for some kinds of crimes, that needs to be established in its own right. Frankly, I'm not convinced; many modern legal systems get by perfectly well without the use of jury trials. Perhaps there's an argument that the criminal courts might one day be so suborned to the will of the executive that trial by jury will be needed as a protection against totalitarian suppression of unpopular individuals and their ideas, but that argument needs to be made out. I'm not necessarily opposed to some effective constitutionalisation of trial by jury for serious crimes, but we need more than what Robertson offers.
Robertson then suggests a right to free association to honour those who fell at the Eureka Stockade (pp. 84-85). Again, this seems strange. The right to freedom of association is one of the most fundamental freedoms, and I support constitutionalising it, but the reference to the Eureka Stockade and other historical struggles does not strengthen the case. The reference to the Tolpuddle Martyrs (p. 85) is more appropriate, since it does involve an historical example of a group who were denied their right to freedom of association. Again, however, we already know that there have been many such cases, and trying to isolate some that were specific to Australia does little to strengthen the argument. The fact is that governments have a propensity to abridge freedom of association, and this can only be restrained by constitutionalisation. The idea is good, but Robertson's actual argument for it is weak.
Then there is the argument for a right to join trade unions and have them bargain collectively (pp. 85-86). Here, Robertson relies on the contributions of Australian trade unions, Australia's work with the ILO, and the unpopular Work Choices legislation. However, this passage is also quite weak. There certainly should be a right to join a trade union, which falls under freedom of association. The right to collective bargaining is another matter. Clearly, history has shown that labour relations legislation of some kind is essential to provide redress for the unequal bargaining power between employers and employees (while also reducing the social disruption caused by industrial disputes). In at least some industries, however, it may be more appropriate to provide for compulsory arbitration (which was a staple of labour relations law in Australia for many years), or for a mix of collective bargaining and compulsory arbitration. Indeed, compulsory arbitration always remains an alternative form of general labour relations regulation - one that the ILO would do well to recognise more clearly. While collective bargaining may be superior, this is a political issue that has been at the very core of party politics in Australia for many decades. It is not the kind of issue that should be constitutionalised.
Work Choices was, of course, unpopular, but that is a good reason not to constitutionalise the mix of labour relations approaches in Australia. History shows that these are exactly the kinds of laws that can be opposed effectively through democratic processes. On two occasions, harsh labour relations legislation has led not only to changes in governments but to prime ministers losing their seats. The kinds of government actions that cannot be opposed successfully through ordinary politics tend to be of a very different character, namely those that infringe fundamental freedoms in ways that are popular, and which strike no chord of sympathy with the mainstream electorate because they affect people who are, for some reason, seen as not mainstream.
Next (pp. 86-870), Robertson refers to Ned Kelly and others, in order to support provisions for fair treatment of prisoners (such as preventing suspect confessions, induced by force, trickery, or other unfair police tactics). While this sort of provision may be needed, no distinctive reference to Australian history is required. There is always a danger of unfair tactics by police, and perhaps some kind of constitutionalisation of a basic set procedural protections is needed here, in addition to protections of relating to fair trials. Again, Robertson doesn't add much to this argument.
Robertson also wants rights to education (he again wants to put his weak "commemoration" or "celebration" type arguments). He proposes: "first everyone's basic right to free and secular education until the age of sixteen; second, a right to be able to access tertiary education on the basis of merit; and third, the right of parents to opt out of state education for their children, and to enrol them in schools that conform to minimum educational standards set by the state (pp. 87-88)." I don't really disagree with any of this, but it is reaching into questions of detail. While I can't imagine that we'd ever go backwards to make education free up to a younger age than sixteen, why specify a particular age in a constitutional document? Perhaps seventeen or eighteen would be a better age. And how, exactly, do we compare merit for the purpose of access to tertiary education? In any event, what evidence is there that these matters, which mainly involve positive rights, are better handled by constitutionalisation than by the cut and thrust of day to day politics? As Robertson's discussion proceeds, he gives as examples of actions that should be open to challenges in the courts the arbitrary refusal of an education department to approve a particular private school or to make adequate provision for students with learning difficulties. But the question of what is "adequate provision" is a political matter rather than something easily justiciable by the courts, which are not expert on determining educational spending priorities. As for the arbitrary refusal to refuse to approve a particular private school, that certainly seems like a decision that should be open to challenge by way of administrative or judicial review, but not necessarily any more appropriate for constitutionalisation than any other such matters.
Finally, Robertson turns to freedom of speech (pp. 88-91). He finds little to celebrate in our history, but nonetheless emphasises (quite rightly) that this is a fundamental liberty that has often been abrogated by governments and needs protection.
And that's just the point: we need to constitutionalise certain specific liberties that are fundamental to our freedom to live as we might reasonably wish in the supposedly liberal society of Australia. The argument is all the stronger where governments have a propensity to circumscribe our fundamental liberties (and meet with little opposition). The arguments about distinctive Australian values and about commemorating/celebrating/honouring individuals or events from our history are pretty much a distraction from what is really at stake.
Still moving slowly. Robertson gives quite a good short account of Australia's constitutional history, and emphasises how little we have in the way of constitutional rights. There's not much here that was unfamiliar to me, though I suppose it's good to provide a popular audience with this sort of basic information.
He's starting to reiterate the point that he wants a charter of rights to incorporate some deep-seated and distinctive Australian values, thought it's unclear what these are, apart from some kind of celebration of the Aboriginal peoples of the country for "their historic place on our land and in our imagination."
Okay, there's something superficially attractive about the idea of distinctive Australian values, but it also has its dangers: this is a pluralistic society, and we need to be careful before we impose a particular set of values that is not shared by everyone. I'm going to want to know just what these "Australian" values are before I'm happy to incorporate them in a legal instrument that has application to everybody - including people whose values might be somewhat different.
Robertson starts to explain them in the next chapter ...
Chapter 4
This begins with a discussion of the early years of Australia. By this point we are starting to get some oddities. For example, on page 81, Robertson describes Arthur Phillips' insistence on proper provisioning of the First Fleet and equal sharing of rations. In memory of this, and in memory that we helped include economic and social rights in the UDHR, he wants us to opt for a charter "that includes economic and social rights to a basic minimum of food, shelter and medicine."
That seems like a bizarre reason to include such positive rights. Surely, if rights such as these are going to be included in a constitutional instrument it isn't to memorialise certain events that most living Australians would seldom (if ever) think about. It is because we don't trust future governments to provide for even a basic social safety net, because we think that the failure to do is justiciable, and because we believe that this issue needs to be given such high priority as to justify constitutionalisation (in an attempt to tie the hands of future governments and electorates).
I have real reservations about this. All of us who are not extreme libertarians do want some kind of social and economic safety net, which means providing for it by legislation. But the problems of catching everyone, no matter their circumstances, are complex and considerable. At the same time, the detail of just what should be done is a matter of day-to-day political debate. It is not something that readily lends itself to constitutionalisation and oversight by the courts. I'm going to need better arguments as to why the latter is needed in respect of positive rights to the resources that make up a social safety net.
Robertson then asks for a "right to be free of visual desecration" (page 83); this seems to be a positive right against governments that they prevent ugly developments such as the Sydney building known as "the Toaster", Blues Point Tower, and the Cahill Expressway, all of which spoil views of Sydney Harbour. This is really a bit hard to take. I can see a need for planning laws to balance utilitarian considerations against aesthetics, but is this really the sort of thing that we want in a constitutional document?
Robertson then wants "the right to engage in ethical scientific experiment" to be enshrined in a charter of rights (page 83) in memory of Australian medical pioneers, including those who pioneered IVF. Again, that seems like a very odd reason for including some kind of right to pursue scientific inquiry. If this is meant to be simply a negative right against the state - a right not to have certain kinds of scientific inquiry banned - then it might be desirable. But the word "ethical" gives away with one hand the very right that is granted with the other. Of course governments that ban certain kinds of scientific experiments believe that they are banning them because they are "unethical". In a pluralistic society, however, there are many different views as to what is or is not "unethical". Are we really going to hand over to the courts the power to determine whether or not a law banning, say, research on 15-day-old human embryos is unethical by some supposedly "correct" standard? Perhaps we do want to have some sort of constitutional protection for the right to pursue science, but if so it will need to be given meaningful protection. It's no use preventing governments from banning certain kinds of science if all they have to show is that the science concerned was "unethical" by some standard that a court might or might not agree with. Why not a tougher test such as the requirement for the state to demonstrate a compelling state interest?
Robertson then wants a guarantee of trial by jury for any crime with a prison sentence of more than one year. The basis of this seems to be that juries are able to give sympathy verdicts, and this provision would honour the many sympathy verdicts given by British juries that saved convicts from the gallows and got them transported to Australia in the late 18th and early 19th centuries. Again, that seems like an obscure reason to support such a right. If it is really so important to have jury trials for some kinds of crimes, that needs to be established in its own right. Frankly, I'm not convinced; many modern legal systems get by perfectly well without the use of jury trials. Perhaps there's an argument that the criminal courts might one day be so suborned to the will of the executive that trial by jury will be needed as a protection against totalitarian suppression of unpopular individuals and their ideas, but that argument needs to be made out. I'm not necessarily opposed to some effective constitutionalisation of trial by jury for serious crimes, but we need more than what Robertson offers.
Robertson then suggests a right to free association to honour those who fell at the Eureka Stockade (pp. 84-85). Again, this seems strange. The right to freedom of association is one of the most fundamental freedoms, and I support constitutionalising it, but the reference to the Eureka Stockade and other historical struggles does not strengthen the case. The reference to the Tolpuddle Martyrs (p. 85) is more appropriate, since it does involve an historical example of a group who were denied their right to freedom of association. Again, however, we already know that there have been many such cases, and trying to isolate some that were specific to Australia does little to strengthen the argument. The fact is that governments have a propensity to abridge freedom of association, and this can only be restrained by constitutionalisation. The idea is good, but Robertson's actual argument for it is weak.
Then there is the argument for a right to join trade unions and have them bargain collectively (pp. 85-86). Here, Robertson relies on the contributions of Australian trade unions, Australia's work with the ILO, and the unpopular Work Choices legislation. However, this passage is also quite weak. There certainly should be a right to join a trade union, which falls under freedom of association. The right to collective bargaining is another matter. Clearly, history has shown that labour relations legislation of some kind is essential to provide redress for the unequal bargaining power between employers and employees (while also reducing the social disruption caused by industrial disputes). In at least some industries, however, it may be more appropriate to provide for compulsory arbitration (which was a staple of labour relations law in Australia for many years), or for a mix of collective bargaining and compulsory arbitration. Indeed, compulsory arbitration always remains an alternative form of general labour relations regulation - one that the ILO would do well to recognise more clearly. While collective bargaining may be superior, this is a political issue that has been at the very core of party politics in Australia for many decades. It is not the kind of issue that should be constitutionalised.
Work Choices was, of course, unpopular, but that is a good reason not to constitutionalise the mix of labour relations approaches in Australia. History shows that these are exactly the kinds of laws that can be opposed effectively through democratic processes. On two occasions, harsh labour relations legislation has led not only to changes in governments but to prime ministers losing their seats. The kinds of government actions that cannot be opposed successfully through ordinary politics tend to be of a very different character, namely those that infringe fundamental freedoms in ways that are popular, and which strike no chord of sympathy with the mainstream electorate because they affect people who are, for some reason, seen as not mainstream.
Next (pp. 86-870), Robertson refers to Ned Kelly and others, in order to support provisions for fair treatment of prisoners (such as preventing suspect confessions, induced by force, trickery, or other unfair police tactics). While this sort of provision may be needed, no distinctive reference to Australian history is required. There is always a danger of unfair tactics by police, and perhaps some kind of constitutionalisation of a basic set procedural protections is needed here, in addition to protections of relating to fair trials. Again, Robertson doesn't add much to this argument.
Robertson also wants rights to education (he again wants to put his weak "commemoration" or "celebration" type arguments). He proposes: "first everyone's basic right to free and secular education until the age of sixteen; second, a right to be able to access tertiary education on the basis of merit; and third, the right of parents to opt out of state education for their children, and to enrol them in schools that conform to minimum educational standards set by the state (pp. 87-88)." I don't really disagree with any of this, but it is reaching into questions of detail. While I can't imagine that we'd ever go backwards to make education free up to a younger age than sixteen, why specify a particular age in a constitutional document? Perhaps seventeen or eighteen would be a better age. And how, exactly, do we compare merit for the purpose of access to tertiary education? In any event, what evidence is there that these matters, which mainly involve positive rights, are better handled by constitutionalisation than by the cut and thrust of day to day politics? As Robertson's discussion proceeds, he gives as examples of actions that should be open to challenges in the courts the arbitrary refusal of an education department to approve a particular private school or to make adequate provision for students with learning difficulties. But the question of what is "adequate provision" is a political matter rather than something easily justiciable by the courts, which are not expert on determining educational spending priorities. As for the arbitrary refusal to refuse to approve a particular private school, that certainly seems like a decision that should be open to challenge by way of administrative or judicial review, but not necessarily any more appropriate for constitutionalisation than any other such matters.
Finally, Robertson turns to freedom of speech (pp. 88-91). He finds little to celebrate in our history, but nonetheless emphasises (quite rightly) that this is a fundamental liberty that has often been abrogated by governments and needs protection.
And that's just the point: we need to constitutionalise certain specific liberties that are fundamental to our freedom to live as we might reasonably wish in the supposedly liberal society of Australia. The argument is all the stronger where governments have a propensity to circumscribe our fundamental liberties (and meet with little opposition). The arguments about distinctive Australian values and about commemorating/celebrating/honouring individuals or events from our history are pretty much a distraction from what is really at stake.
Thursday, May 14, 2009
I am not fully human ...
Well according to a loony British cardinal.
Those of us who have sneaking transhumanist tendencies might wonder why being human is so great anyway. When nutty religionists come out with pronouncements like this, we might feel the temptation described by PZ Myers:
There is a temptation to agree with them, I'm afraid: the idea that I'm a post-human mutant bestowed with the super-powers of reason and the ability to see through superstition is flattering. But it's not true. Everyone has those powers, it's just that some of us have had the good fortune and a history of experience that allows us to shake off some indoctrination. Nothing more.
Well, yes, I pretty much agree with this. But usually when authoritarian personalities formulate the idea that some fellow Homo sapiens are "not fully human" it implies that they are sub-human - not just in their capacities but in their moral worth. It's a bit frightening when representatives of powerful organisations start to speak like that.
And note that Cardinal Cormac Murphy O'Connor is the same guy who is after a seat in the House of Lords. If I have any UK readers, I hope you're campaigning against this guy obtaining any temporal power.
Those of us who have sneaking transhumanist tendencies might wonder why being human is so great anyway. When nutty religionists come out with pronouncements like this, we might feel the temptation described by PZ Myers:
There is a temptation to agree with them, I'm afraid: the idea that I'm a post-human mutant bestowed with the super-powers of reason and the ability to see through superstition is flattering. But it's not true. Everyone has those powers, it's just that some of us have had the good fortune and a history of experience that allows us to shake off some indoctrination. Nothing more.
Well, yes, I pretty much agree with this. But usually when authoritarian personalities formulate the idea that some fellow Homo sapiens are "not fully human" it implies that they are sub-human - not just in their capacities but in their moral worth. It's a bit frightening when representatives of powerful organisations start to speak like that.
And note that Cardinal Cormac Murphy O'Connor is the same guy who is after a seat in the House of Lords. If I have any UK readers, I hope you're campaigning against this guy obtaining any temporal power.
The Statute of Liberty - Chapter 2
Still proceeding slowly, though Robertson has now given a potted account of the development of rights in the traditions of Britain, Europe generally, the US and Canada, and the UN, with some focus on Australia's proud role in the creation of the original Universal Declaration of Human Rights. He has also, rightly, emphasised the role played by judges in the historical development of rights, and has made the point that a democratic country is not supposed to be a tyranny of the majority over the minority.
We still haven't encountered a lot of compelling argument one way or another, or learned a great deal about what Robertson actually wants for Australia, beyond the obvious fact that he's aiming for some sort of statutory charter with legal force similar to that of the charters introduced in recent years in the ACT and Victoria. I'll read on ...
We still haven't encountered a lot of compelling argument one way or another, or learned a great deal about what Robertson actually wants for Australia, beyond the obvious fact that he's aiming for some sort of statutory charter with legal force similar to that of the charters introduced in recent years in the ACT and Victoria. I'll read on ...
The Statute of Liberty - Chapter 1
Over the next few days, I'm going to take some time to read - and blog about - the new book from Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back Their Rights (Sydney: Vintage, 2009). Like Robertson, I support the idea of a bill of rights. Actually, Robertson is only supporting a statutory charter, whereas I support full-blown constitutional entrenchment of fundamental freedoms (such as freedom of speech). On the other hand, he probably supports more content going into his charter of rights than I am happy with. We'll see how this plays out.
So far, I've read Chapter 1, which is a rather chatty introduction that hasn't said anything much at all. I do wish books would cut to the chase, rather than starting slowly with irrelevant personal reminiscences and the like. To Robertson's credit, however, he does have a shot at the simplistic claim that documents such as bills of rights transfer power from politicians to unelected judges. He doesn't say much about why this claim is misleading - nonetheless, so long as the rights concerned merely take the form of limits on government power over the citizens, there is no such "transfer".
Rather, there is an area of freedom created for citizens, where governments (legislatures and executive branches) do not have the legal ability to tell them what to do. Where there is a dispute about whether the government has overstepped the boundary, it is determined by the courts. However, the courts do not possess the power that has been taken from government, such as a power to restrict freedom of speech. All they can do is decide whether or not the government has acted in such a way as to overstep the limits, and even the power to decide that must be exercised in a structured way that severely limits the courts' discretion.
If a bill of rights starts setting out positive rights, things become more complicated. But as long as we are dealing with provisions that protect an area of freedom for the citizens, by imposing limits on government power, there just is no transfer of the power of elected politicians to unelected judges. Rather, it is removed from the politicians, and an area of power over their lives is handed back to the citizens themselves.
This annoying meme - transferring power from elected politicians to unelected judges - has an ability to replicate itself that is greatly disproportionate to the small amount of truth it contains. I wish that people who trot out this idea were taken to task more often.
Then again, Robertson doesn't make the point all that well. He has less analysis of the real issue than I have set out above, and it remains to be seen whether what I've set out applies neatly to his own proposals. We'll find out more as I work my way through the book. Now for Chapter 2 ...
So far, I've read Chapter 1, which is a rather chatty introduction that hasn't said anything much at all. I do wish books would cut to the chase, rather than starting slowly with irrelevant personal reminiscences and the like. To Robertson's credit, however, he does have a shot at the simplistic claim that documents such as bills of rights transfer power from politicians to unelected judges. He doesn't say much about why this claim is misleading - nonetheless, so long as the rights concerned merely take the form of limits on government power over the citizens, there is no such "transfer".
Rather, there is an area of freedom created for citizens, where governments (legislatures and executive branches) do not have the legal ability to tell them what to do. Where there is a dispute about whether the government has overstepped the boundary, it is determined by the courts. However, the courts do not possess the power that has been taken from government, such as a power to restrict freedom of speech. All they can do is decide whether or not the government has acted in such a way as to overstep the limits, and even the power to decide that must be exercised in a structured way that severely limits the courts' discretion.
If a bill of rights starts setting out positive rights, things become more complicated. But as long as we are dealing with provisions that protect an area of freedom for the citizens, by imposing limits on government power, there just is no transfer of the power of elected politicians to unelected judges. Rather, it is removed from the politicians, and an area of power over their lives is handed back to the citizens themselves.
This annoying meme - transferring power from elected politicians to unelected judges - has an ability to replicate itself that is greatly disproportionate to the small amount of truth it contains. I wish that people who trot out this idea were taken to task more often.
Then again, Robertson doesn't make the point all that well. He has less analysis of the real issue than I have set out above, and it remains to be seen whether what I've set out applies neatly to his own proposals. We'll find out more as I work my way through the book. Now for Chapter 2 ...
Athena Andreadis on Star Trek
Wednesday, May 13, 2009
So WHAT SHOULD teachers do?
Let's make a positive statement here, building on earlier commments that I've made.
First, evolution is science - important and well-established science that is foundational for biology and all the related disciplines. Children absolutely should be taught the basics of science at school. Hence, I am absolutely saying that evolution SHOULD be taught in state schools. Whether or not there are constitutional issues in the country concerned, as in the US, science should be taught in what I call a religion-blind way. I.e. there is no reason for a teacher in a science class to mention that creationism even exists. Creationism is religion, and does not belong in a science class. Evolution is science, and it definitely DOES belong in a science class.
There are, indeed, genuine scientific controversies within evolutionary biology, such as the precise importance of genetic drift as a mechanism for phenotypical change; the role, if any, of group selection; and the likelihood, or otherwise, that certain human behavioural propensities are genetically coded (in the sense that the same propensities will tend to appear in a very wide range of accessible environments). But there is NO genuine controversy about whether the main propositions of contemporary evolutionary theory are true. Sufficiently advanced students (perhaps in senior high school) should be taught about genuine controversies at the cutting edge of science; they should not be taught about sham controversies that have been concocted for the purpose of undermining mainstream science.
There is no more reason to teach about a fantasised "controversy" between biological evolution and some alternative than there is to teach about an equally fantasised "controversy" between the approximately-spherical Earth theory and the flat Earth theory, or a "controversy" about the oxidation theory of fire and the phlogiston theory of fire (or a theory of fire that involves combat among angry demons, if it comes to that).
Hence, in a biology class, evolution should be taught on its own merits with no reference at all to religious doctrines or religiously-inspired pseudoscience. If these are brought up by students, teachers should explain politely that they are not science and have no scientific support. The same applies to any other body of scientific findings - e.g. in geology, or astronomy - that contradicts various religious beliefs. Just teach the science on its merits.
In a history class or a literature class, or philosophy class, a wide range of religious ideas may need to be discussed because of their historical influence or literary treatment, or because they have been the subject of philosophical reflection and examination.
When they are discussed, there's no reason for teachers to go out of their way to attack religious doctrines, whether it's the Genesis account of creation; or the Catholic doctrine of transubstantiation; or the supposed finality of the Koran; or idea of achieving moksa through meditation and detached conformity with your dharma; or the wisdom of sacrificing cattle to avoid being struck down by Zeus's thunderbolts. Where necessary (perhaps in a history class), discuss these ideas politely as things that some people believe or have believed, but don't give any of them special credence. Phrases such as "superstitious nonsense" should be avoided, but the teacher need not pretend to think that all these doctrines are somehow true.
Religions and religious ideas should be discussed with neither the teacher's endorsement nor the teacher's disparagement - but of course there has to be a margin for pedagogical discretion in such classes, or teaching such subjects will be impossible. E.g., some religions have been harsh in their social effects, and teachers cannot be expected to pretend otherwise when discussing a relevant period in history when this became apparent, or a literary text in which religion's effects are dramatised in some way.
Finally, if I had my way, comparative religion would be a subject in schools for students from a young age. Students should learn accurate information about what religious beliefs have been held by people in the past, and about the variety of beliefs that are held now. They should be taught about all these without any of the beliefs being advocated or denigrated, just to convey the great variety of what has been on offer, and to give students the kind of cultural insight that comes from being knowledgeable about what a wide range of people have believed about the world and humanity's place in it.
First, evolution is science - important and well-established science that is foundational for biology and all the related disciplines. Children absolutely should be taught the basics of science at school. Hence, I am absolutely saying that evolution SHOULD be taught in state schools. Whether or not there are constitutional issues in the country concerned, as in the US, science should be taught in what I call a religion-blind way. I.e. there is no reason for a teacher in a science class to mention that creationism even exists. Creationism is religion, and does not belong in a science class. Evolution is science, and it definitely DOES belong in a science class.
There are, indeed, genuine scientific controversies within evolutionary biology, such as the precise importance of genetic drift as a mechanism for phenotypical change; the role, if any, of group selection; and the likelihood, or otherwise, that certain human behavioural propensities are genetically coded (in the sense that the same propensities will tend to appear in a very wide range of accessible environments). But there is NO genuine controversy about whether the main propositions of contemporary evolutionary theory are true. Sufficiently advanced students (perhaps in senior high school) should be taught about genuine controversies at the cutting edge of science; they should not be taught about sham controversies that have been concocted for the purpose of undermining mainstream science.
There is no more reason to teach about a fantasised "controversy" between biological evolution and some alternative than there is to teach about an equally fantasised "controversy" between the approximately-spherical Earth theory and the flat Earth theory, or a "controversy" about the oxidation theory of fire and the phlogiston theory of fire (or a theory of fire that involves combat among angry demons, if it comes to that).
Hence, in a biology class, evolution should be taught on its own merits with no reference at all to religious doctrines or religiously-inspired pseudoscience. If these are brought up by students, teachers should explain politely that they are not science and have no scientific support. The same applies to any other body of scientific findings - e.g. in geology, or astronomy - that contradicts various religious beliefs. Just teach the science on its merits.
In a history class or a literature class, or philosophy class, a wide range of religious ideas may need to be discussed because of their historical influence or literary treatment, or because they have been the subject of philosophical reflection and examination.
When they are discussed, there's no reason for teachers to go out of their way to attack religious doctrines, whether it's the Genesis account of creation; or the Catholic doctrine of transubstantiation; or the supposed finality of the Koran; or idea of achieving moksa through meditation and detached conformity with your dharma; or the wisdom of sacrificing cattle to avoid being struck down by Zeus's thunderbolts. Where necessary (perhaps in a history class), discuss these ideas politely as things that some people believe or have believed, but don't give any of them special credence. Phrases such as "superstitious nonsense" should be avoided, but the teacher need not pretend to think that all these doctrines are somehow true.
Religions and religious ideas should be discussed with neither the teacher's endorsement nor the teacher's disparagement - but of course there has to be a margin for pedagogical discretion in such classes, or teaching such subjects will be impossible. E.g., some religions have been harsh in their social effects, and teachers cannot be expected to pretend otherwise when discussing a relevant period in history when this became apparent, or a literary text in which religion's effects are dramatised in some way.
Finally, if I had my way, comparative religion would be a subject in schools for students from a young age. Students should learn accurate information about what religious beliefs have been held by people in the past, and about the variety of beliefs that are held now. They should be taught about all these without any of the beliefs being advocated or denigrated, just to convey the great variety of what has been on offer, and to give students the kind of cultural insight that comes from being knowledgeable about what a wide range of people have believed about the world and humanity's place in it.
A good response on Stranger in a Strange Land
This from Arthur D. Hlavaty's LiveJournal site, "From the Oval Throne of Pope Guilty I".
Russell Blackford on Stranger in a Strange Land by Robert A. Heinlein
This piece on Heinlein's novel is now available over at normblog, the quite extraordinary site maintained by Norman Geras.
I've put a fair bit of work into this, folks, so please consider checking it out. While you're there, browse in the rest of his "Writer's choice" reserve, which is a truly amazing resource with over 200 pieces from a wide range of writers, critics, etc., on books that have influenced them or that they regard as personal favourites.
I've put a fair bit of work into this, folks, so please consider checking it out. While you're there, browse in the rest of his "Writer's choice" reserve, which is a truly amazing resource with over 200 pieces from a wide range of writers, critics, etc., on books that have influenced them or that they regard as personal favourites.
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