NT takes the democracy out of the democracy sausage

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Amongst all of the analysis that will undoubtedly follow the weekend’s Northern Territory election, one important issue has almost slipped past without mention. In the days leading up to the election the Northern Territory Electoral Commission launched a quiet attack on a great Australian tradition.

Earlier this year the NT Government amended the Electoral Act to prohibit canvassing for votes (and similar conduct) within 100 metres of a polling place. These amendments extended the previous exclusion zone from 10 metres to 100 metres. The amendments were intended to make the area surrounding a polling place apolitical. In the lead-up to the election, however, it became clear that the new laws would have an unintended consequence for that great Australian Election Day tradition – the democracy sausage.

The Northern Territory Electoral Commission sent out a newsletter to schools before the election warning them that sausage sizzles on Election Day were caught by the new laws. While sausage sizzles could occur within the 100 metre boundary, they had to be conducted apolitically. This meant that staff working at the BBQs “ must refrain from discussing political matters” and that the BBQs could not be manned by a party or candidate worker or even by a former politician.

The implied right to freedom of political communication that was discovered in the Constitution by the High Court of Australia over twenty years ago requires that any law burdening political communication must be reasonably appropriate and adapted to advancing a legitimate object. A law that bans anybody behind a polling booth BBQ from exchanging politically flavoured niceties with punters who are waiting for their sausage to cook, and that bans certain people from reaching for their BBQ tongs entirely is overkill, and constitutionally suspect.

Taking the democracy out of the democracy sausage in the Northern Territory is most likely unconstitutional but, more importantly, it is most definitely un-Australian.

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Who gifts human rights to the UK?

When British Home Secretary Theresa May called for the United Kingdom to exit the European Convention on Human Rights, the cries of indignation were entirely predictable. Her comments were dismissed as ‘an irresponsible and dangerous strategy’ that ‘will provide comfort to human rights abusers‘. A video sketch starring actor Patrick Stewart swiftly followed. The sketch shows Stewart as the British Prime Minister asking his Cabinet ‘What has the European Convention on Human Rights ever done for us?’

The answer may surprise you. Apparently the European Convention gave human rights to the British people. According to this sketch it was responsible for – amongst other things – the right to a fair trial, freedom of religion, freedom of expression and freedom from slavery. Before the European Convention it seems that the British people entirely lacked these basic rights and freedoms.

This demonstrates a complete misunderstanding of the historical foundations of these fundamental human rights. Human rights did not materialise only in modern times with the emergence of supra-national bodies and treaties. In fact, the origins of human rights can be traced well back in history, with key English contributions including the Magna Carta in 1215 and Bill of Rights in 1689.

Why does this matter? It matters because we all too frequently treat these regional and international human rights treaties and bodies with excessive reverence and fail to acknowledge the historical traditions they are building on. The European Convention didn’t gift human rights to the United Kingdom. Nor should it be the final word on human rights.

It is entirely fitting for the United Kingdom to think about their broader European involvement at the same time as they are approaching a referendum to decide whether or not to remain within the European Union. A treaty should never be beyond scrutiny or criticism, and should never be held up as either the first or last word on human rights.

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We don’t need laws to tell farmers to like trees

If you ask the strident environmental lobby they will tell you that farmers basically hate trees. They will paint a picture of a stereotypical farmer who wants to bulldoze his land for his own short-term economic gain, with no thought of the longer term environmental costs. This is the reason that we apparently need punitive native vegetation legislation across the country.

A recent study by UWA academics¹ has debunked this myth, concluding that farmers actually like trees. The study examined 7,200 property sales in Victoria since 1992 and found that farmers “on average, pay more for land that includes a proportion of woody native vegetation on it compared with land that is fully cleared”. The authors suggested a number of reasons for this result, including the high amenity value of woody native vegetation and its contribution to agricultural production.

This begs the question – if the private market values native vegetation, why does government have to interfere at all? The above study concluded that “there is scope for improved targeting of investment in the study region by incorporating the private benefits of environmental projects”. In other words, the free market has a role to play in environmental protection and farmers themselves have a commercial incentive to engage in sustainable environmental management practices. Who would have thought?

Rather than stripping away private property rights by imposing punitive native vegetation legislation, perhaps we would achieve better environmental outcomes by actually working cooperatively with our farmers. But – of course – common sense and environmental protection aren’t phrases that are natural partners in Australian public policy.

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In defence of Germaine Greer

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Cardiff University


This is the first and only time I have ever written in defence of Germaine GreerThe fact that Greer may cancel a public lecture at Cardiff University in the face of opposition from an online petition accusing her of holding ‘misogynistic views towards trans-women’ should concern anybody who believes that a university campus should be one place where freedom of speech is sacrosanct.

On 22 October, a Change.org petition was launched calling for Cardiff University to cancel Greer’s upcoming lecture, Women & Power: The Lessons of the 20th Century, saying:

While debate in a University should be encouraged, hosting a speaker with such problematic and hateful views towards marginalized and vulnerable groups is dangerous.

Within three days this petition garnered almost 2,000 signatures. And so Greer joins the ever-increasing and diverse list of speakers – ranging from lesbian feminist Julie Bindel to French Front National leader Marine Le Pen – who have been ‘no-platformed’ from UK university campuses.

This is not limited to the United Kingdom. Lukianoff and Haidt recently wrote about the institutionalization in America of this new climate of ‘vindictive protectiveness’, warning that microaggressions and trigger warnings had risen quickly ‘from obscurity into common campus parlance’.

Australia is also not immune. The campaign that pressured UWA to withdraw from establishing an Australian Consensus Centre is an example of a ‘No Platform’ mentality creeping into Australian universities. Change.org was again used to launch a petition, with almost 6,500 supporters arguing that the Centre should not be supported as ‘Lomborg’s views are dangerous‘.

I may disagree with most of what Germaine Greer says, but that is exactly the reason that I would love to hear her speak. Engaging with thinkers you disagree with, and having your own ideas challenged in the process, is at the core of a university education. Spending your student days wrapped in the cotton wool of agreeable ideas might lead to a safe and comfortable journey through your university degree, but it won’t be an intellectually engaging or rewarding one.

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‘Recognising’ the Constitution, and its limits: Part II

Part I appeared on FreedomWatch yesterday, and can be seen here.


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As I wrote yesterday, the recognition debate has seemingly moved away from considering minimal, albeit still problematic, symbolic constitutional change. At the Garma festival in Arnham Land last weekend, Noel Pearson acknowledged that ‘there’s no substantial constituency in Indigenous Australia for just some kind of preambular embroidery’, while Galarrwuy Yunupingu suggested that a constitutional clause outlawing racial discrimination was ‘not negotiable right from the start‘.

This follows both the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (in June 2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (in January 2012) putting forward suggestions that included the amendment of the existing race power under s. 51(xxvi) to provide for a ‘beneficial’ race power and the insertion of a new constitutional provision prohibiting racial discrimination.

There are a number of significant problems with these substantive proposals. The first is that any constitutional race power – even if it claims to be exclusively beneficial – undermines the simple proposition that nobody should be judged or discriminated against because of the colour of their skin. It is difficult to see how enshrining references to race in our Constitution could do anything other than undermine racial equality and reconciliation.

At a more practical level, the inclusion of a ‘beneficial’ race power assumes that the interests of all Aboriginal people are homogenous, that public policy can clearly labelled as either ‘beneficial’ or ‘detrimental’, and that these public policy discussions are better determined by the courts through litigation rather than the parliament through elections.

The more minimalist option of simply removing references to race from the Constitution through the removal of both sections 25 and 51(xxvi) seems to have fallen by the wayside. This is a lost opportunity. Amending our Constitution to ensure that it is not itself racist would be a small but unifying step forward that would have a realistic chance of succeeding at a constitutional referendum.

Trying to transform our Constitution into a single-clause Bill of Rights that will itself defeat racism both fails to take into account the fundamental character of our Australian Constitution, and opens up a constitutional debate that is highly likely to result in failure at a referendum.

The Recognise discussion does offer a real opportunity to contribute to a more unified and reconciled nation. But we need to be realistic about what our Constitution is, and more importantly what it is not. When the referendum is held it is not, as Professor Marcia Langton claimed recently, a choice between ‘do you want Aboriginal cultures to survive, or do you not want Aboriginal cultures to survive’. Instead it is an overdue opportunity to remove antiquated provisions that should have no continuing place in our daily governance.

The final proposal should ultimately be assessed not by any symbolic value ascribed to it, or indeed the fear of being characterised as racist for not simply agreeing sight unseen to ‘Recognise’ – regardless of what the final proposal ends up being. Instead it should be judged by the only criterion that is ever relevant when considering questions of constitutional reform, namely will these changes actually improve the practical workings of our constitutional structure?

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‘Recognising’ the Constitution, and its limits: Part I

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The issue of racism is at once extraordinarily simple and incredibly complicated. The fundamental principle that nobody should be judged or discriminated against because of the colour of their skin is simple and indisputable. But when it comes to translating that principle into practice we only need to look at the most recent Closing the Gap Report to see how much work Australia undoubtedly still needs to do.

Unfortunately there is no other issue in Australia where discussion is so frequently characterised by significant controversy and divisiveness, and where the urgent need to find an all-encompassing solution actually stops us from taking the first steps towards addressing the problem.

So it is with the Recognise campaign. At the 2010 federal election both major political parties declared their support for a referendum to recognise Indigenous Australian in the Constitution. The proposal for constitutional recognition was intended to be one ‘that could contribute to a more unified and reconciled nation’ and ‘be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums’.

Despite the good intentions, the campaign seems to have now reached a significant cross-road. The constitutional proposals themselves have grown from the symbolic to the substantive, and the debate seems to be moving further away from any proposal that would have a realistic prospect of success in a constitutional referendum.

A preliminary question that seems to have been lost amongst the desire to achieve recognition is whether, in the first place, our Constitution is the appropriate vehicle to drive us to this destination. At the recent Garma Festival in north-east Arnhem Land, Patrick Dodson equated the constitutional recognition process with Australia deciding ‘it wants to stand up and defeat racism once and for all’.

This is ascribing a symbolic power to the Australian Constitution that simply doesn’t exist. At its heart, the Australian Constitution is a workmanlike and practical document, and it was expressly designed this way. Unlike other Constitutions it was not born of revolution or crisis, and it does not attempt to embody or define the hopes, dreams or character of the Australian nation in soaring prose.

Instead it is fundamentally a procedural document that sets out the rules for government. This may be boring to some, but it is undoubtedly part of the reason the Australian Constitution is amongst the most enduring and successful examples of a national constitution. It also makes it an unsuitable instrument for symbolic gestures.

The Recognise discussion seems, however, to have moved away from considering a minimal model of purely symbolic recognition…


Part II of ‘Recognising’ the Constitution, and its limits will appear on FreedomWatch tomorrow. Here it is.

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Reflecting on the 800th Anniversary of the Magna Carta

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Next week officially marks the 800th anniversary of the sealing of the Magna Carta at Runnymede. The anniversary is being acknowledged with a range of commemorative events in Great Britain and other countries, reflecting on the legacy of a document famously described by Lord Denning as: ‘The greatest constitutional document of all times – the foundation of freedom of the individual against the arbitrary authority of the despot’.

This view of the sealing of the Magna Carta as ‘an event that changed the constitutional landscape in this country and, over time, the world’[1] is one held by many. The story is one familiar to most Australian lawyers. It was a critical moment where the King’s subjects were able to demand that he obey his own rules and place limits on his power. It was foundational in establishing the rule of law and in the development of individual rights and freedoms.

The power of its words continues to resonate today, as best exemplified in the original Article 39:

No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.

Some, however, have expressed a greater level of caution when extolling the enduring legacy of the Great Charter. In a 2013 lecture Lord Phillips compared the myth and reality of the document, developing the thesis ‘that the document we now revere was little more than a cynical attempt by a bad king to buy time from those determined to temper his abuse of power’. Lord Sumption earlier this year distinguished between the ‘lawyer’s view’ of the document and the more critical ‘historian’s view, which has tended to emphasise the self-interested motives of the barons and has generally been skeptical about the charter’s constitutional significance’. In a similar vein, in 2010 Mark Juddery listed the Magna Carta as one of the ’50 most overhyped things in history’.

 

It is certainly true that the Magna Carta has taken on something of a mythical significance, and it does no disservice to its legacy to acknowledge that it was not an intrinsically perfect document. It did not extend freedoms to peasants and it is probably fair to say that the demands made by the barons were motivated more by self-interest (and particularly anger at the prospect of increased rental fees) than pure altruism or concern for the rights of others. It is further true that only three of the sixty-three original clauses actually remain in force under English statute, with English lawyer David Allen Green describing the Magna Carta in modern times as ‘ornamentation, not legislation‘.

But none of this ultimately takes away from the enduring legacy of the Magna Carta.  As Lord Sumption observed:

Some legislation has a symbolic significance quite distinct from any principle which it actually enacts. Thus it is with the Magna Carta. It has become part of the rhetoric of a libertarian tradition based on the rule of law, that represents a precocious and distinctively English contribution to western political theory.

In any event, to say that the Magna Carta does not have a continuing practical significance is not entirely true. For example, a quick survey of judgments from the High Court of Australia reveals that the Magna Carta has been referred to in thirty-five decisions since 1940.  This influence is even more apparent in America, where it was calculated in 1991 that the Magna Carta ‘had been cited in more than 900 decisions of State and Federal courts to date’. There is no doubt that the Magna Carta continues to have enduring influence.

To my mind, the 800th Anniversary is an opportunity to remind ourselves of this legacy. And it is important that we do so. In a world-wide survey conducted to mark the 800th Anniversary it was found that more Britons knew about the US Declaration of Independence than the Magna Carta, and that only 53 per-cent of Australian adults surveyed had heard of the Magna Carta. Of even more concern is the result that only 65 per-cent of Australian adults surveyed said that they had heard of the Australian Constitution.

This highlights a basic, but often forgotten, truth – democratic principles, the rule of law and individual liberties are not permanent inevitabilities. Rather, they are contestable ideas that, once established, must be fiercely protected and cherished. This is a lesson worth reflecting on during the 800th Anniversary of the Magna Carta.


[1]     Lord Bingham of Cornhill, The Role of Leadership in the Creation and Maintenance of the Rule of Law (Lecture delivered at the Hon Society of the Middle Temple, 21 February 2007).

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Iran: A leader in women’s rights?

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Hassan Rouhani (President of Iran) with the Secretary-General of the UN, Ban Ki-moon (September 2013)

In his Message on the 8th March marking International Women’s Day 2015 the UN Secretary General emphasised that this is ‘a vital year for advancing the cause of women’s human rights’. If the election this month of Iran to the Executive Board of UN Women is any indication, then this isn’t going particularly well.

You read that correctly. Iran – which recently ranked 137 out of 142 countries in the 2014 World Economic Forum Global Gender Gap Index – was elected by a two-thirds majority of the UN Economic & Social Council to the Executive Board of UN Women, the body created to lead and coordinate the UN system’s work on gender equality and the empowerment of women. Just over a year ago the UN Secretary-General reported that women in Iran ‘are subject to discrimination, entrenched both in law and practice’. Only eight months ago, the Special Rapporteur on the Situation of Human Rights in Iran reported to the UN General Assembly that the human rights situation there ‘remains of concern’, warning specifically of draft laws that ‘markedly compound discrimination against women by further eroding their protection from forced marriage and rights to education, work and equal wages’.

The very fact that the Special Rapporteur is felt by UN Member States to be necessary should itself suggest that Iran is not a suitable candidate for any UN human rights body. This is not, however, the only recent example of Iran being elected to a key women’s rights organisation. It follows on from their re-election last April to the Commission on the Status of Women.

It is also not an isolated example of a nation with a questionable human rights track record being elected to key UN human rights bodies. Other current Board members of UN Women include countries such as Saudi Arabia (the only country in the world that prohibits women from driving) and Turkey (whose President told a women’s conference last year that it is ‘against nature’ to put men and women on an equal footing).

It is true that an argument can certainly be made for positive engagement. That is, isolating countries like Iran may ultimately prove counter-productive whereas actually engaging with them may encourage improved human rights outcomes. There is, however, a significant difference between cautious engagement and legitimizing a regime that systematically treats women as second-class citizens.  The election of Iran to UN Women certainly feels more like the latter.

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Strengthening property rights in Western Australia

Although the Universal Declaration of Human Rights declares that human rights are ‘equal and inalienable’, some rights seem to be more equal than others.  Property rights, for example, seem to have been relegated to the very bottom of the list.  Indeed, the Human Rights Commissioner recently described property rights as one of ‘the forgotten freedoms’ that ‘… are being taken for granted and are consequently compromised’.

Given this, any moves to strengthen private property rights should be encouraged.  The WA Government has recently taken steps in this direction with the introduction of the Land Acquisition Legislation Amendment (Compensation) Bill 2014 and the adoption of the Private Property Rights Charter for Western Australia.  This is a positive step, but unfortunately a much smaller one than many had hoped for.

The draft Bill creates a just terms compensation guarantee when an interest in land is compulsorily acquired by the State and introduces a number of other reforms designed to ‘deliver a fairer and more transparent approach for the assessment and determination of compensation for landholders where private property is acquired by the State’.  The Charter is intended to guide public officials when they make decisions affecting property rights, and emphasizes a number of key principles including ‘fair compensation, transparency, timeliness and the use of compulsory acquisition as a last resort’.

Both the draft Bill and the Charter are worthwhile reforms.  There is, however, still a long way to go.  For example, while the Charter is a step in the right direction in recognizing the importance of reform at the bureaucratic level, it is drafted in such equivocal language that it provides little by the way of real protection or certainty for property owners.

A much bigger problem is that the draft Bill fails to extend the just compensation guarantee to cases where the government imposes significant restrictions on the use of property, but stops short of actually acquiring the property itself.  Many of the most egregious recent examples in which individuals have found their property rights significantly diminished in Western Australia are in cases where those rights have been restricted, rather than taken.

A key example is native vegetation regulations, with a complicated protection framework created under the Environmental Protection Act 1986 (WA), Environmental Protection (Clearing of Native Vegetation) Regulations and the Environmental Protection (Environmentally Sensitive Areas) Notice 2005.  The effect of the Notice is to declare a substantial range of areas to be Environmentally Sensitive Areas (‘ESAs’).  It is estimated that 4000 – 6000 landowners are impacted by an ESA designation and that ‘the area covered by ESAs goes from Gingin and along the coastal strip, all the way down to Esperance’.  It is not only areas of high conservation value that are affected, with extensive areas of land across Western Australia being classified as ESAs.

It is an offence to clear native vegetation without a permit, unless falling within a stated exemption – none of which apply to ESAs.  Illegal clearing is a criminal offence, and individual offenders may be fined up to $250,000.  The types of activities that may be considered illegal clearing include many routine farming activities, such as clearing re-growth or grazing cattle.

A farmer who finds their property declared as an ESA will effectively be unable to continue using that land for farming, at the risk of criminal conviction.  To continue farming they need to obtain a permit, but the permit process is a bureaucratic nightmare, being uncertain, complicated and entirely discretionary.  Before you can apply for a permit you also need to actually know that your property is an ESA.  In fact, landowners are not individually consulted or notified before their property is encumbered and the designation is not recorded on the Certificate of Title.  Instead, the Government has claimed that publishing the overarching Notice in the Government Gazette is sufficient!  The upshot is that many property owners are simply not aware that their property is affected, and may unknowingly be committing a criminal offence.

The unfair burden that this places on individual landowners is highlighted by the case of Peter Swift.  Mr Swift was prosecuted for illegally clearing 14 hectares of native vegetation on his property without a permit.  This was despite the clearing actually being done by a previous owner before Mr Swift purchased the property.  Although he was ultimately cleared in court, this has come after being forced to endure years of litigation, and at an enormous financial and personal cost.  What is more, he is still faced with the majority of his land being designated as an ESA which means that he can’t use the property for farming – the very reason that he purchased it in the first place!  The value of his property has been destroyed by the ESA restrictions, and yet he hasn’t received any compensation.  The sheer injustice of this situation is overwhelming.

The proposed property right reforms in Western Australia are welcome, but hopefully they are just a starting point with further reform in this area being sorely needed.

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