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.


A medical journal’s unscientific campaign against e-cigarettes


FreedomWatch recently wrote about the public health body in the United Kingdom which actually came out in support of e-cigarettes. For stepping outside of the orthodox public health line of thinking, The Lancet smeared Public Health England, asserting that the ’95 percent safer than smoking’ estimate (‘Nutt’s study’) were ‘the opinion of a small group of individuals with no pre-specified expertise in tobacco control’.

Christopher Snowdon has a must read rebuttal at The Spectator:

With wearying predictability, The Lancet launches into an ad hominem attack on two of the 11 authors of Nutt’s study. The editorial notes that one of the authors has consulted for a distributor of e-cigarettes and another has been a consultant to the pharmaceutical industry. Since Big Pharma does not make e-cigarettes and sees them as a rival to their own nicotine products it is debatable whether the second of these is a competing interest at all, but it is nevertheless there in black and white in the original study, as competing interests always are.

According to The Lancet, the declared interests of two out of 11 authors of one study cited by Public Health England ‘raises serious questions not only about the conclusions of the PHE report, but also the quality of the agency’s peer review process’. This risible attempt to make a mountain out of a mole hill suggests that The Lancet is less interested in assessing the scientific evidence than in groping around for anything that might help blacken the PHE report’s name in the eyes of the public.

This is a technique the magazine has been perfecting ever since it laid into the now-legendary scientific pioneer John Snow in the 1850s. When Snow concluded that cholera was spread through the water supply and not, as the medical consensus had it, through the air, The Lancet accused him of being in the pay of the polluting industries. And they were right. He was. But that did not stop germ theory being right and miasma theory being wrong. The Lancet finally got round to correcting its notoriously terse obituary of Snow two years ago. One might hope that by now the magazine would have learned how to play the ball rather than the man.

Read the whole piece here.


Top 3 articles from this week you must read


Michael Baume AO

1) The NSW anti-corruption commission has now refused to answer questions from the NSW parliament itself. Chris Merritt writes in The Australian that, more than being annoying, what ICAC is doing is a direct challenge to the concept of responsible government itself ($)

2) Opposition to capitalism, even from the Pope, hurts the poor. Read more from Michael Rubin in Commentary magazine this week

3) Writing in The Spectator, Michael Baume argues that vexatious litigation, sovereign risk, loss of reputation and foreign investment are among the reasons that absurd laws which permit ideological opponents to challenge and delay mining projects must not be allowed to continue.


Summits, divestment motions and the republic – the worrying rise of gesture politics


Newcastle City Councillor Declan Clausen

The decision by the Newcastle City Council to only invest its $270 million in banks involved in “environmentally and socially responsible investments” is, along with Wednesday’s National Reform Summit (which achieved nothing) and Joe Hockey’s flirtation with the republic, just the most recent example of the rise of gesture politics.

State, federal and local politicians like gesture politics because they don’t have to actually do anything. It is far easier to move a motion, make a speech, or tell people that you care, than it is to justify why you CAN’T spend the money, DON’T think government should be involved or explain why investment in infrastructure that will deliver benefits AFTER you have left office is preferable for the taxpayer.

Twenty-year-old Labor Councillor Declan Clausen, who moved the successful Newcastle motion, helpfully revealed more than what seasoned campaigners usually do. To the Sydney Morning Herald, Cr Clausen admitted that the Council should not “invest in things that produce pollutants, greenhouse gases, habitat destruction, uranium, potentially abuse human rights, have involvement in bribery and corruption, or the manufacturing of alcohol, tobacco or gambling products”.

Taking a look at the companies in the ASX 200, if you exclude the banks, mining companies, and any company that has any relationship with the above, there really aren’t a lot left!

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The French revolutionaries’ ‘commitment’ to freedom of speech


On this day in 1789, French National Constituent Assembly adopted the very short-lived Declaration of the Rights of Man and the Citizen. Included in the declaration were two articles which sought to protect the expression of opinions, and that the ‘free communication of ideas and opinions is one of the most precious of the rights of man’.

Indeed, the French Revolutionaries presented free speech and freedom of the press as foundations of their society. It was short-lived because the revolution was not actually inspired by a devotion to natural rights, and these principles were completely discarded by the time of the Reign of Terror in 1793-94.

The articles which protected freedom of speech (articles 10 and 11) came with prominent caveats which left them exposed to the inevitable efforts to restrain those freedoms. Moreover, the revolutionaries’ were never really committed to natural rights such as freedom of speech. As Chris Berg wrote in his 2012 book, In Defence of Freedom of Speech:

The Marquis de Lafayette – veteran of the American revolution – drafted one of the first proposed declarations for consideration. Drawing on bills of rights in the American state constitutions, Lafayette’s proposal was unequivocal. Rights were ‘inalienable’, and freedom of conscience and the press were to be protected absolutely. There were no caveats in Lafayette’s proposed declarations.

Yet Lafayette was in the minority… There was no significant constituency in the Assembly for an absolute statement on freedom of the press. And there was no consensus that that free expression of ides was a core ideal of the revolution…

This may, perhaps, seem incongruous. The French Revolution was presented as a revolution driven and inspired by natural rights… Yet as Alexis de Tocqueville argued, political freedom was a late-comer to the ideals of the revolution. It was the last philosophy to be adopted, and the first to be abandoned. The philosophes had first in mind a program of government reform. The ideals of ‘freedom’, when they were adopted on the eve of the revolution, often clashed with that program, and it was freedom that lost out…

Abbé Sieyès, a Catholic clergyman… proposed a general law on sedition and criminal libel to the National Committee in January 1790 – just a few months after the Declaration had been adopted. By 1793, even calling for the dissolution of the revolutionary government was punishable by death. The Terror demanded the elimination of seditious speech.

There had never been a consensus on freedom of speech, as a close reading of the clumsily worded Declaration reveals. But whatever promise  the revolution did offer to liberals like Lafayette, it had well and truly disappeared by the Terror.


Summit shows reform consensus does not exist


“Today’s National Reform Summit has failed to agree to a meaningful reform agenda,” says James Paterson, Deputy Executive Director of the free market think tank the Institute of Public Affairs. Mr Paterson participated in the Summit in Sydney today.

The Australian and the Australian Financial Review are to be commended for their attempt to forge a consensus reform agenda. Regrettably, key summit participants vetoed crucial aspects of any holistic reform program that could boost our prosperity,” says Mr Paterson.

“Critical areas of national reform were declared no-go areas. Workplace relations reform, essential to improving Australia’s slipping productivity, was barely discussed. In the statement, the words ‘award’, ‘penalty rates’, ‘unfair dismissal’ and ‘Fair Work Commission’ were not even mentioned.”

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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.


Door to GST on health should be kept shut


Federal Treasurer Joe Hockey’s latest speech about reforming the personal income tax system has been subject to a lot of discussion.

Much of the discussion was perhaps not as flattering as the Treasurer might like, in part because we’ve heard the promises of tax cuts all before (by the way, did you read Sinclair Davidson’s excellent takedown of the Hockey speech? Itʼs a must‑read).

But what largely went unnoticed was the question and answer session after Hockeyʼs speech, in which he left open the possibility of broadening the GST base to health care:

There’s no doubt that with the exemptions in place in relation to the GST, the GST’s pace is narrowed, particularly with the growth in the healthcare sector, which is essentially GST free. And because health is growing with the ageing population, it means that the tax base for the GST is narrow.

But there are two sound reasons we should apply a strong, indeed prohibitive, health warning against extending GST to health care.

First, applying GST to health would entrench the unfair economic and financial advantages enjoyed by the public health sector against private sector operators.

As noted by economist Henry Ergas, ‘public hospitals do not charge fees … That means GST could not be applied to those providers. But it could be applied to their private competitors … As a result, extending the GST would make private providers less attractive, while reinforcing the public sector suppliers.’

As a consequence, imposing a GST would most likely swell public hospital waiting lists and reduce private health insurance memberships, harming the efficiency and effectiveness of our health system more generally.

Second, applying GST to health is likely to violate a basic principle of tax economics that taxation shouldn’t be imposed on investments which expand our productive capacity (for a similar application to school education, see a recent paper I wrote for Independent Schools Queensland).

Many economists argue there is a strong investment element in health care, with services maintaining the health of the workforce and helping to sustain labour productivity.

Sure, there is an element of consumption to health spending as well but taxing authorities are unlikely to have the knowledge or insight to be able to tease out which elements of health expenditures are for consumption or investment purposes, unless they were prepared to invoke exorbitant compliance costs and painful tax injustices trying to do so.

Is a cardiac procedure for a senior Australian consumption or investment, against the background of more older people being more willing and able to work these days? Is cosmetic surgery in all cases necessarily an act of consumption expenditure? What about vaccinations? These are actually not straightforward questions to answer.

When considering the diverse operating environment for Australian health care, and the contribution of health toward productive economic outcomes, Treasurer Hockey should, in fact, maintain a disposition against extending GST to health care.