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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 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.

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