About Me

My photo
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).

Tuesday, April 14, 2009

Back from the roundtable

Well, that was an interesting exercise. There were about 200 people, maybe even more, organised into tables of 10. We had two hours. I must compliment the committee members who ran the show, particularly Frank Brennan and Tammy Williams. They were well-organised, and very patient with the inevitable crackpots who turned up and somehow managed to grab the mikes (or to harangue committee members one-on-one afterwards ... as one person was doing to Brennan when I approached him to ask a simple question). I think that I would have lost patience very quickly with some of the individuals present. This was not a good forum for long speeches about peripheral single issues, such as whether men are treated unfairly in the divorce courts, or whether there ought to be a free ferry service to Tasmania, to take a couple of the examples that came up.

Brickbats to Victoria's Attorney-General, Rob Hulls, who insisted on making a speech in praise of Victoria's Charter of Rights, and offering it as a model for the federal level of government. Hulls has plenty of opportunities to put his views, and I thought it was selfish of him to take valuable time from what was already a time-stretched public meeting.

The microphone somehow never found its way to me in the question times, though I did put my hand up because I had some issues to raise. In any event, most of the time was devoted to the individual tables acting more or less as syndicate groups. Each table was asked to jot down points about (1) what rights should be protected, (2) whether they are adequately protected now, and (3) how they ought to be protected in future. The large sheets of paper were then collected. This process really meant that there was no chance for useful discussion about some things being off the agenda. If someone had a suggestion, it was duly recorded. The people at my table were sensible enough, though far more fixated than I was on economic and cultural rights. (They probably went out thinking that I'm a Randian or something, but of course I am not at all opposed to an economic safety net or some of the other things they were talking about. I just don't think those issues are appropriate for being constitutionalised, and my written submission explains why, as does Helen Irving's.)

Since the process encouraged each table to put down each point being made by anyone in the group of ten, it was a great opportunity for single-issue cranks. So if someone wanted the consultation exercise to bring about a free ferry service to Tasmania or better outcomes for men in the divorce courts ... well, I guess it got jotted down at the relevant table.

I did get some agreement from the others at my table to say that there was value in an entrenched Bill of Rights, even though it is supposedly off the agenda; that we are worried about constitutional problems with a non-binding charter; and that there could be merit in a non-judicial human rights watchdog (separate from the Australian Human Rights Commission) to vet legislation. Tammy Williams indicated that the committee would at least report to the government if there was public support for an entrenched Bill of Rights, even though its hands were tied to stop it making any recommendations limiting the ultimate sovereignty of parliament.

One person who did get a chance to put her view in the final question time made a specific point about the threat to freedom of speech from the push in the UN to prohibit "defamation of religion". Good for her in raising that. A bloke whom I found slightly annoying because he managed to get two goes by being aggressive (while most of us missed out entirely) did make an important point - that we shouldn't be trying to use this exercise to pursue our full political agenda, whether left-wing or right-wing. We should be concentrating on protecting fundamental freedoms. So a couple of the things that I wanted to say got said.

All in all, I conclude: "Not a total waste of time." I give the Committee members 4 out of 5 for how they ran the session under difficult circumstances.


Michael Kirkland said...

The Canadian Charter of Rights and Freedoms has a useful compromise on the issue of entrenchment.

The notwithstanding clause allows the federal or provincial governments to override certain sections of the Charter, but imposes a 5 year sunset (which is the maximum time between elections in Canada) on any law that uses it.

This forces governments to acknowledge when they're doing something they think will violate the Charter, rather than just charging forth and hoping the courts will rule in their favour. It also places such a large stigma on such laws that they usually peter out before getting passed anyway. Even if they do get through, the law will have to be passed again in every parliament.

Russell Blackford said...

Has that provision ever been used?

It may have a role to play, but the view I tend to hear is that has become pretty much a dead letter in Canada. I'd be interested in any facts about when it has actually been used by one of the legislatures over there.