Guest post

Mass-murderer Castro dies unpunished

If there is a Latin American nation in which human rights and the rule of law seem to have completely vanished, that nation certainly is Cuba. And yet the recently deceased dictator Fidel Castro remains revered by those who regard him as a revolutionary hero who bravely stood against ‘capitalism’ and ‘American imperialism’.

Amongst these leftist admirers of Castro are the Prime Minister of Canada, Justin Trudeau and the leader of the Opposition in Australia, Bill Shorten. Mr Shorten has been to Cuba and he deeply admired a notorious six-hour speech delivered by Castro. ‘It was amazing,’ Shorten said. Of course, he is not the only Labor leader to deeply admire the brutal dictator. British Labour leader Jeremy Corbyn said Castro was a ‘champion of social justice’ — a nonsensical statement given all the people Castro brutally murdered and all the human rights he grossly violated.

The fact that so many left-wing leaders have expressed admiration to Castro should be a reason for great concern. After all, since the adoption by Castro of Marxist-Leninism in 1959 the Cuban regime has sanctioned the brutal assassination of dissidents, the introduction of retroactive criminal legislation, the confiscation of property for political reasons, and numerous other ’emergency measures’ against the so-called ‘enemies’ of the communist regime.

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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.


Culture of victimhood: The rise of argumentum ad victimam


Now that argumentum ad hominem has become a bit old hat, (unless of course said hominem is in a category utterly beyond the pale, such as old white males), clearly there is a need for another form of argument which;

(a) doesn’t require an analysis of the issue at stake,

(b) has the firepower to shut down the opposing view, and

(c) provides an opportunity for ‘virtue signalling’.

Luckily the authoritarian, censorious and would-be virtuous among us can call upon what I would label argumentum ad victimam. Habitually employed by the opponents of any reduction in government spending, it is commonly heard at budget time. Indeed, it sometimes seems that the only examination of the budget that matters is an ad victimam one. Should an incumbent Treasurer propose, for example, to reduce the public spend on childcare by 0.5 per cent over the next four years, the Opposition and press will, in the blink of an eye, produce some benighted parent whose life will be made intolerable by their child no longer being eligible for subsidy.

The victim naturally has to elicit our sympathy, so welfare recipients need to be chosen with a little care. However, now that most of the population is in receipt of other people’s money by way of various ‘benefits’ it isn’t difficult to find personable victims for any planned curb in public spending. Children are a pretty sure bet, but even aged pensioners lacking obvious sex-appeal can enjoy their 15 minutes (or less) of fame.

This partly explains the curious phenomenon of the rise and rise of welfare expenditure in Western democracies, because it is both difficult to feel sympathy for the rich people (most of whom, let’s face it, are old white males) forced to cough up a few more tax dollars every week, and easy to feel sympathy for the children who will probably end up on drugs if they don’t get subsidised childcare.

It is not only in the arena of welfarism however, where we see the ad victimam technique employed; during the term of the previous federal government footage of a mistreated bullock in an Indonesian abattoir brought about the shutdown overnight of the entire live cattle trade to that country. A senior member of the same administration lamented, after a failed attempt to regulate the Australian press, that it might have succeeded had they had the cunning to parade a victim of Big Press (also known as Rupert Murdoch) before the Australian people.

Similarly, when Mark Steyn spoke in support of repeal of section 18C of the Racial Discrimination Act on Q&A recently, the response from a Labor politician on the panel was to tell the story of a child called a “half-caste” by a neighbour, in order to convince us of the critical need for the existing legislation (which incidentally did not prevent this allegedly happening).

However shallow its ethical and intellectual basis, there is no doubt that ad victimam can be a very effective technique in debate. There is a nice illustration of this from the field of public health, where the anti-vaccination movement has gained considerable traction by emphasising the harm done very rarely to individual children by vaccines, whilst failing utterly to acknowledge the enormous benefit of vaccination to countless children and the wider community.

So what is one to do for example, if invited onto the Q&A panel and served up an argumentum ad victimam? Well, as in the case of an ad hominem attack, if one is alert to the technique, at least one can recognise it for what it is. I would suggest pointing out that good intentions are not of themselves a sufficient basis for government action (and indeed if used as such almost inevitably result in unintended and unfortunate consequences).

The making of sound law requires sound principles, so that rather than focussing on individual cases, however appealing that may seem, we ought to be looking at the underlying principles as they apply to the population as a whole – but I acknowledge that these arguments are not easy to make in a public forum where issues are adjudicated by soundbite (and that is most of them).

There is a saying amongst lawyers that hard cases make for bad laws; perhaps we might borrow that concept and assert that pitiable victims make for bad laws.


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.


Free speech and open debate under threat from anti-discrimination laws

Archbishop Julian Porteous, the subject of a complaint to the Tasmanian Anti-Discrimination Commissioner

It is deeply disturbing that a Catholic archbishop is being dragged to an anti-discrimination authority for simply expressing a traditional view on the subject that until quite recently was shared by both the major political parties as well as a large segment of the population. This exposes religious organisations to attack from outsiders and leaves their practices and beliefs unguarded.

If religious organisations can be punished for simply expressing their traditional views on marriage, family and a child’s right to a father and mother, then I wonder what else they and their followers might be punished for once same-sex marriage is legalised in Australia.

Before a plebiscite on same-sex marriage can even take place in this country, it is necessary to address the intolerable impact that anti-discrimination laws are having on free speech. As a society we really need to ask ourselves if we should undermine the rights of one group in order to protect or promote the interests of another.

A real democracy – and we must never forget this – requires that controversial issues will be resolved by the people only after a truly open and robust debate has taken place.


The Nanny State: A failure of regulation


On 11 September, I testified on the lack of evidence in favour of regulation at a public hearing of the Senate’s “Nanny State” Inquiry at Parliament House in Canberra. As the Hansard transcript reveals, that led to a lively and good-natured exchange on the nature of regulation with the Chair, Senator Dastyari.

My testimony was based on my submission to the Inquiry (number 237) titled, “Regulating choice: The need for evidence“. I concluded from reviews of the experimental evidence on the effects of regulation, that the Iron Law of Regulation applies.

The Iron Law has been stated as;

There is no form of market failure, however egregious, which is not eventually made worse by the political interventions intended to fix it.

An honest belief in the value of regulation is presumably grounded in a faith that a wise and well-intentioned regulator could in practice increase total net welfare.

That belief is not obviously plausible, as it depends on a sequence of assumptions or conditions that are highly unlikely to apply in practice. Can you think of any regulation where the regulator has met all of the ten necessary conditions for successful regulation described on page 3 of my paper with Scott Armstrong?

Our research has investigated the effects of government regulation of speech (by way of mandatory disclaimers in advertising), corporate social responsibility and of the environment. We could find no evidence that regulation increased welfare – in most cases it caused harm. We have not found a regulation that would meet even one of the ten necessary conditions for successful regulation.


The not-so-secular foundations of Australia’s legal-political institutions


While the Australian legal-political tradition cannot lay claim to the historical depth of America and the United Kingdom, it too was built on solid foundations—starting with the first British fleet departing for Australia in 1787, when Captain Arthur Phillip was instructed to take such steps as were necessary for the celebration of public worship.

At the time of British settlement in Australia, Christianity formed an integral part of the theory of English law and civil government. In his seminal work, A History of English Law, Sir William Holdsworth expressed the traditional view of the close relationship between Christianity and the common law:

Christianity is part and parcel of the common law of England, and therefore is to be protected by it; now whatever strikes at the very root of Christianity tends manifestly to dissolution of civil government.

While the penal colony of New South Wales was established in 1788, English law was not recognised until the passage of the Australian Courts Act 1828 (Imp.). This Act determined that all laws and statutes in force in England at that time were to be, as far as it was possible, applied in the courts of New South Wales and Van Diemen’s Land.

When the English common law was transplanted to Australia, the supreme courts of the colonies were empowered to decide which English laws were applicable to Australia. It was at that moment that Christianity was included in the law of the land.

The place of Christianity in the common law was not only acknowledged, but unconditionally adopted by the Supreme Court of NSW in the case of Ex Parte Thackeray (1874). The reception of these principles was perhaps best encapsulated in that case by Justice Hargrave, who famously commented that:

We, the colonists of New South Wales, “bring out with us” … this first great common law maxim distinctly handed down by [Sir Edward] Coke and [Sir William] Blackstone and every other English Judge long before any of our colonies were in existence or even thought of, that ‘Christianity is part and parcel of our general laws’; and that all the revealed or divine law, so far as enacted by the Holy Scripture to be of universal obligation, is part of our colonial law….

It has been said that a people without historical memory can be easily deceived by false and destructive philosophies. Although undeniably diminished and rarely acknowledged, the Christian religion has an enduring role in the Australian legal-political system. In these days of political correctness and cultural relativism, it is always good to be reminded of our Christian heritage, which still permeates most of the present laws and socio-political institutions of this democratic nation. To state this obvious fact is not to be ‘intolerant’ but to simply stress an undeniable truth.


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

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


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?


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


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.


Cloudy with a chance of climate debate


With the United Nation’s December Paris Climate Change Conference looming, climate change campaigners have been busy giving us a sense of what to expect from public debate over the next five months.

The Fairfax papers this week ran a “Climate for Change” campaign to raise the stakes and scare policy makers and the public into supporting higher Australian CO2 emissions reduction targets, highlighted by an article on how bread will shrink by 2050 due to higher levels of CO2 in the atmosphere.

The Pope weighed in with an encyclical on climate change which talks about the environment, banks, failings of the market, and mining pollution amongst related topics.

Even the former head of the UN, Kofi Annan, co-authored a piece for the Washington Post which noted the low energy usage of people in sub-Saharan Africa, how 600 million people in this region do not have access to electricity and that the solution was for Africa to “leapfrog” the use of fossil fuels and go straight to renewables.

However the IPA has been out there flying the flag for sensible energy policies, and on Monday released new research which showed how 82 million Indians could have access to a regular and reliable supply of electricity each year if Australia were to develop its Galilee Basin coal export potential.

According to the World Health Organisation, over 3 billion people still cook and heat their homes with materials like wood, crop leftovers and dung, and over 4 million people per year die from resulting illnesses. In India alone, at least 300 million people have no access to electricity and around 815 million people still rely on these types of fuels for cooking. Australian coal can make a real difference to living standards in the world’s biggest democracy.

Another article from the Washington Post, from 2 June 2015 also explained how Europe’s renewable energy policies are apparently paying for people in the US to chop down perfectly good trees to feed power stations in England.

But the news from Europe is not all bad – on Monday the UK’s new Secretary of State for Energy and Climate Change Amber Rudd announced an end to UK government subsidies for onshore wind power facilities with the speech including a quote that should be framed and sent to every State and Federal policymaker in Australia as well: “Government support is designed to help technologies stand on their own two feet, not to encourage a permanent reliance on subsidy.”


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