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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 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.

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