Constitution

Anti-discrimination laws “chilling this country’s political process”

John Roskam writing in the Australian Financial Review last week, following the anti-discrimination complaint of Archishop Julian Porteous’ innocuous marriage pamphlet, and how, as well as “chilling freedom of speech”, anti-discrimination laws are “now also chilling this country’s political process”:

The plebiscite on same-sex marriage is one of two significant and contentious votes to take place in the new few years. The other is the referendum on Indigenous recognition… it’s entirely legitimate to have a debate about recognising Aboriginal and Torres Strait Islander people in the constitution, but if there is a chance for it to be regarded as legitimate, it must be the outcome of a free and open debate between two sides. Under Australian anti-discrimination legislation, if someone participating in the debate on Indigenous recognition says something deemed by the authorities to be “insulting” or “offensive”, they will be breaking the law.

A vote in a plebiscite or referendum, in which one side is not allowed to present its case, is not a legitimate vote. That’s why both supporters and opponents of same-sex marriage should be concerned by the complaint against Archbishop Porteous and the Catholic Church.

Read the whole article here.

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Recognising bias in the debate on indigenous recognition

recognise-large-logoSimon Morgan has an important piece published in the most recent edition of The Spectator. His thorough analysis of Recognise – the taxpayer-funded organisation responsible for promoting the referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution – can be read online here. I’ve excerpted the opening paragraphs:

There is a tremendous cache to be found in portraying oneself as an ‘underdog’ in contemporary Australian society, whether that be in the cultural, the commercial or the political arena.Australians love the notion of a scrappy band of outsiders banding together and taking on powerful interests. The emotional appeal of insurgency is a key aspect of the public campaign being waged by ‘Recognise’ – which badges itself as ‘the people’s campaign to recognise indigenous Australians in the Constitution.’ The use of the term ‘people’s campaign’ is no doubt deliberate, and meant to evoke romantic images of a mass uprising that forces ‘the system’ to bend to its will.

There are a couple of minor problems with this narrative. The first is that a genuine ‘people’s campaign’ is an organic uprising, often social protest against the established order. In contrast, Recognise is possibly the first ‘people’s campaign’ to be not only birthed by the State, but also financed by it, around $15 million thus far.

The second, more troubling, aspect of Recognise’s evolution was its decision last month to burst into partisan politics.The catalyst was the WA Liberal Party State Conference, which among 52 policy motions listed for debate, included one that proposed the Party ‘oppose any move to recognise a single race to the exclusion of all others in the body or preamble of the Commonwealth Constitution’.

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PM must live up to his promise of a government “committed to freedom”

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Malcolm Turnbull’s promise to lead a “thoroughly Liberal government committed to freedom, the individual and the market” must be backed up with policies. This is an argument put forward by the IPA’s James Paterson, in an article for The Australian, which is well worth a read.

In particular, Paterson had this to say on freedom of speech, and section 18C of the Racial Discrimination Act 1975:

A core issue for the free-market Right is freedom of speech… Turnbull is on the record as supporting a compromise measure proposed by Family First senator Bob Day, and co-sponsored by Liberal Democrat David Leyonhjelm and Liberals Dean Smith and Cory Bernardi. Day’s bill would remove the words “offend” and “insult” from 18C, meaning it would still be an offence to “humiliate” or “intimidate” someone on the basis of their race. It’s a proposal so reasonable many on the Left support it. An announcement that it will vote for Day’s private member’s bill would be a powerful demonstration of the values of the Turnbull government.

Regarding constitutional recognition of Aboriginal and Torres Strait Islanders, he says:

Many Australians hold the view there is no place for race in the Constitution. They may be willing to support the removal of outdated provisions that refer to race, but they will not accept any new references to race being inserted because they believe all Australians are equal and should be treated as such in the Constitution. The Constitution should be changed – to remove all refer­ences to race and the power for federal government to enact laws based on people’s race.

Check out the whole article here.

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Email: The IPA’s Chris Berg and Simon Breheny give expert evidence to senate Nanny State inquiry at Parliament House in Canberra

Last Friday 11 September 2015, the IPA’s Chris Berg and Simon Breheny appeared as expert witnesses before the Senate Economics References Committee inquiry into personal choice and community impacts, colloquially known as the Nanny State inquiry.

The three key points we made were:

  • Paternalism is deeply undemocratic
  • Policy makers are as prone to making mistakes as consumers
  • Politicians and bureaucrats do not know what is in our best interests

Click here to read the media release the IPA published on the day of the hearing, and click here to read the IPA’s written submission.

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Taxpayers are already being billed for promoting division in the Constitution

Earlier this month, I gave the Prime Minister credit for rejecting calls for taxpayer funded conventions or conferences to assist advocates of constitutional recognition and Aboriginal and Torres Strait Islander people come up with a proposal.

Clearly, I spoke too soon:

On Friday, [Prime Minister Tony] Abbott reversed his opposition to taxpayer-funded conventions for indigenous ­people to try to build consensus on constitutional recognition.

The chairman of Mr Abbott’s indigenous advisory council, Warren Mundine, told The Australian yesterday he was relieved the conventions would go ahead.

It is entirely inappropriate that the government would assist one side of the debate in their quest to change, and entrench division, in the constitution.

However, this merely carries on a trend of taxpayer funding for the cause. Reconciliation Australia is funded predominantly by the federal government, and on at least two occasions has pledged extra taxpayer money for the express purpose of promoting constitutional recognition. In July 2012, Reconciliation Australia entered into a $10 million, two year funding agreement with the then ALP government, while the Coalition government promised to top up RECOGNISE (which is a part of Reconciliation Australia) with another $5 million last November.

Some groups have even been required to demonstrate what they are doing to advance constitutional recognition to justify government funding, as this segment on Four Corners highlighted:

Unlike the local government referendum, where the official ‘Yes’ and ‘No’ cases were funding by significantly different degrees, constitutional recognition of Indigenous Australians is being rigged before the referendum campaign has even begun.

Proponents for constitutional recognition are free to conduct their own conventions – and should do so at their own expense.

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Where have the constitutional conservatives gone?

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I have a piece at the ABC’s Drum arguing that the Coalition needs to rediscover its constitutional conservatism: the reluctance to amend the constitution that has given Australia institutional stability over the last century:

The Australian founders may not have intended it to be this hard to change the constitution. But there are good reasons for constitutional change to be difficult.

Constitutions exist in order to provide fixed rules about what governments can and cannot do. The strength of a constitution derives from the certainty it provides. A constitution that can be easily changed is not a constitution at all, in that it does not offer the stability necessary for long term economic and political management. In the pre-constitutional era, governments did not feel bound by rules. Now they do. That’s a very good thing.

This does not mean constitutions should be impossible to alter. But the danger to the constitution comes from reckless change, not stubborn adherence to the status quo.

Yet the we’ve seen in the last couple of years an unfortunate abandonment of that conservative legacy:

In opposition, Abbott had signed up to Gillard’s local government referendum. He had to be pulled back into line by state Liberal party divisions.

Abbott wants to amend the constitution to recognise Indigenous Australians. You only need observe how the recognition debate has spiralled out of the Government’s control to see how antithetical it is to the conservative mindset.

Now senior ministers of the government are seriously proposing a constitutional amendment for no other reason than to stack the deck against a policy they oppose. And that policy is, we are repeatedly told, a second-order issue.

Read the whole thing here.

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The history of referenda in Australia

ABC Radio National this week ran a programme on constitutional referenda in Australia, in the context of a debate on the proposal to recognise Aboriginal and Torres Strait Islanders in the Australian constitution.

Referendums have become synonymous with failure in Australia, even when initial polling shows great support for a proposed change.

The figures are well known: 44 referendums have been put to the Australian people, but only eight have been passed.

The programme highlighted the various roadblocks that constitutional referenda face. The record of failed referenda in Australia is worth keeping in mind as the current debate continues.

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Email: Major report backs changes to section 18C

Bob_DayA government review of Commonwealth laws has identified section 18C of the Racial Discrimination Act 1975 as being ‘of particular concern’ to freedom of speech, in a major report released last week.

The Australian Law Reform Commission, which was joined last month by the IPA’s academic advisor Professor Suri Ratnapala as a part-time Commissioner, is conducting a review into Commonwealth encroachments of ‘Traditional Rights and Freedoms’.

In its interim report last week it identified the freedom of speech implications of section 18C, and the need for a ‘more thorough review’ of the law.

This follows the tick of approval by the Parliamentary Joint Committee on Human Rights to amend put forward by Senator Bob Day to remove the words ‘offend’ and ‘insult’ from the law.

With the Prime Minister’s own party’s rank and file also having endorsed Senator Day’s amendment bill in June, the government should consider this an ideal opportunity to honour its election promise and take a stand for freedom of speech.

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