TO: National Human Rights Consultation
Secretariat
Attorney-General's Department
Central Office
Robert Garran Offices
National Circuit
BARTON ACT 2600
FROM: Dr Russell Blackford
Albert Park,
E-mail: russellblackford@bigpond.com
Website: www.russellblackford.com
Phone: 03 9699 1493
SUBMISSION
TO THE NATIONAL HUMAN RIGHTS CONSULTATION COMMITTEE
By
Russell
Blackford
"The object of this Essay is to assert one very
simple principle, as entitled to govern absolutely the dealings of society with
the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the
moral coercion of public opinion. That principle is,
that the sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their number,
is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to
prevent harm to others."
John Stuart Mill, On
CONTENTS
EXECUTIVE SUMMARY............................................................................................. 4
The temptation and problem of populism....................................................................... 4
Proposals..................................................................................................................... 4
Independent Commission for Rights and Freedoms....................................................... 5
International law issues................................................................................................. 6
1. INTRODUCTION...................................................................................................... 7
2. THE IDEA OF A LIBERAL SOCIETY...................................................................... 9
3. HARM AND OFFENCE.......................................................................................... 13
4. "HARM" TO THE UNBORN................................................................................... 16
5. FREEDOM OF SPEECH......................................................................................... 19
The basis for freedom of speech................................................................................. 19
The constitutional situation.......................................................................................... 21
Defamation law.......................................................................................................... 23
Censorship and the Henson debacle........................................................................... 23
Religious vilification.................................................................................................... 26
Racial vilification......................................................................................................... 29
6. COMMERCIAL SPEECH, CORPORATE SPEECH, AND THE ISSUE OF PORNOGRAPHY 31
Father Brennan's concerns.......................................................................................... 31
Commercial and corporate speech.............................................................................. 32
Pornography and freedom of speech........................................................................... 36
Final remarks............................................................................................................. 41
7. FREEDOM OF RELIGION (BELIEF, CONSCIENCE, AND WORSHIP)............. 43
8. A SPHERE OF PERSONAL FREEDOM................................................................. 48
Introductory remarks.................................................................................................. 48
Lawrence v. Texas..................................................................................................... 48
The example of euthanasia.......................................................................................... 51
Final remarks............................................................................................................. 54
9. PROCEDURAL DUE PROCESS AND JUSTICE IN PUNISHMENT.................... 56
Introductory remarks.................................................................................................. 56
Preventive restriction and detention............................................................................. 58
David Hicks............................................................................................................... 61
Asylum seekers and mandatory detention.................................................................... 62
Final remarks............................................................................................................ 65
10. EXCESSIVE OR CRUEL PUNISHMENT............................................................. 66
Issues........................................................................................................................ 66
Mandatory detention.................................................................................................. 67
Final remarks............................................................................................................. 70
11. EQUALITY IN A LIBERAL SOCIETY................................................................. 71
12. THE ROLE OF INTERNATIONAL HUMAN RIGHTS LAW.............................. 75
13. CRITICISMS OF CONSTITUTIONAL RIGHTS AND FREEDOMS.................. 80
"The wrong parties benefit"......................................................................................... 80
"Power to unelected judges"....................................................................................... 82
"It's undemocratic"..................................................................................................... 85
"Rights and responsibilities"......................................................................................... 85
14. WHICH RIGHTS AND FREEDOMS
SHOULD BE PROTECTED?..................... 87
Constitutionalising positive rights?............................................................................... 87
Binding private persons and entities............................................................................. 89
Regulating private power............................................................................................ 91
Summary................................................................................................................... 93
15. WHAT SHOULD BE DONE?................................................................................ 94
NOTES....................................................................................................................... 101
APPENDIX: INDEPENDENT COMMISSION FOR RIGHTS AND FREEDOMS ACT (DRAFT) 103
AFTERWORD............................................................................................................ 107
REFERENCES........................................................................................................... 108
ABOUT THE AUTHOR............................................................................................. 111
I refer to the National Human Rights
Consultation and express my gratitude for the opportunity to make this submission.
It is especially timely for
A key
idea in this submission is that public policy is frequently made in an
environment of widespread fear, suspicion, or outrage.
Policy development in a field such as bioethics
can be distorted by irrational fears of violating the natural order, or
"playing God". Elsewhere in the policy landscape, many mainstream
Australians can be insensitive or unimaginative when considering the interests
of people who are outside the mainstream. Cases involving such groups as asylum
seekers or disaffected Aboriginal youth underline how tempting it is for populist governments
to apply harsh treatment to people who lack mainstream support and attract
mainstream suspicion. Even relatively privileged individuals, such as the
photographer Bill Henson, can be isolated by the mainstream public
and demonised by populist politicians.
The greatest problem for individual liberties is
not when a determined government introduces draconian provisions against fierce
parliamentary opposition and in the face of public disquiet. Such decisions are
relatively rare, and they can be put to the test in the electoral process:
sufficiently unpopular laws can become electoral millstones (notoriously so
with labour relations laws that are experienced as harsh to workers).
A far greater threat to individual liberties
arises from popular legislation that
does little to prevent the majority from doing what they want and also has a
degree of bipartisan support. This, for example, is the situation with the
harsh treatment of asylum seekers, illiberal laws that ban recreational drugs,
attempts to rein in the creativity of artists, and unnecessary restrictions on
medical research and reproductive rights. In all these cases, the state's
actions appeal to more or less irrational fears that politicians have no real
interest in soothing with rational analysis.
Against that background, I argue that fully
adequate protection of our rights and freedoms would require all of the following:
·
The inclusion of core civil liberties such as
freedom of speech and expression, freedom of belief, conscience, and worship,
and freedom of association in a constitutionally-entrenched Bill of Rights,
along with strong procedural protections before anyone can be subjected to
punishment, imprisonment, detention, ill-treatment, or other loss of liberties.
·
Unequivocal commitment by all
major political parties to the Millian harm principle and the
maintenance of a broad sphere of personal freedom.
·
A culture in which critics and observers of
government action routinely apply these ideas: i.e., the Millian harm principle and a broad sphere of personal freedom.
However, I acknowledge that there is no prospect
of a successful referendum to include a Bill of Rights in the Australian
Constitution, and in any event such a proposal is beyond the terms of reference
of the National Human Rights Consultation. Accordingly, I have developed
proposals that do not involve any constitutionally entrenched rights or
freedoms.
I submit that an aggressive program of law
reform should be initiated at all levels of government. This is needed to
expunge from the statute books those criminal laws that cannot be supported by
liberal principles such as the harm principle. Such a program may not be
politically palatable, since some forms of conduct that have been improperly
criminalised such as the use of recreational drugs have also been
successfully demonised. Nonetheless, with only minor qualifications, we should
all be free to engage in acts that do not directly harm others (or which others
consent to).
In the case of drug laws, many drugs that are
currently prohibited should be legalised. Legislative bans should be replaced
with more rational forms of regulation, and all recreational drugs should be
regarded with the same mixture of caution and acceptance that currently applies
to alcohol.
Freedom of speech should be recognised as the
most important freedom of all and should not be abridged without very powerful
reasons. One specific area where governments have begun to go too far is in
laws relating to religious vilification. Such laws are not in the public
interest. No new laws should be made in this area, and existing ones should be
repealed. Laws on racial vilification may be more justifiable, but existing
laws should be reviewed with an aim of narrowing the focus, to concentrate on
the worst or most harmful kinds of race-based hate speech.
All attempts to expand vilification law should
be resisted strongly because of their tendency to "chill" legitimate
speech, especially legitimate criticisms of religious doctrines and cultural
practices.
There is no substitute for continual social and
political struggle in an effort to secure adequate protection of the rights and
freedoms of Australian citizens, residents, new arrivals, and visitors.
However, I recommend one key institutional change that will be, at worst, a
socially useful experiment and perhaps something far more valuable. This is
the creation of a statutory body, to be called, I suggest, "the
Independent Commission for Rights and Freedoms".
The Independent Commission for Rights and
Freedoms would be empowered to scrutinise existing and new federal legislation,
and to report to parliament and the public on the legislation's compliance with
a set of statutory criteria. These would cover the most fundamental rights and
freedoms that ought to constrain the use of political power in a liberal
society. I
recommend that the new agency be given responsibilities that extend as far as
examining whether existing and new laws unnecessarily encroach upon a sphere of
personal freedom, such as discussed in the American case Lawrence v. Texas. Although this sphere is somewhat vague, it is
sufficiently well-defined for an agency with appropriate expertise to carry out
such a non-judicial task.
I emphasise that the Independent Commission for
Rights and Freedoms would investigate only those laws that infringe negative
rights against the state, such as freedom of speech and expression, and freedom
of belief, conscience, and worship. I argue that it would be wrong in principle
to use such an institution to further a program of positive rights i.e.
claims for various kinds of assistance or resources. It would also be wrong in
principle to give the same, or equivalent, rights to citizens in relation to
each other as they are given in relation to the state. In both cases, these
issues are legitimate subjects of day-to-day politics. They should not be
included in a Bill of Rights if that were a viable option in any document
such as a non-entrenched charter with a similar purpose, or in the terms of
reference of investigations by the Independent Commission for Rights and
Freedoms.
As
well as recommending the creation of the Independent Commission for Rights and
Freedoms, I support continuation of access to the First Optional Protocol to
the International Covenant on Civil and Political Rights. This allows individual
citizens and others to protest government mistreatment to the UN Human Rights
Committee. In the past, this has led to valuable outcomes such as the repeal of
However,
the Optional Protocol is not a panacea. Nor should excessive faith be placed in
the development of international human rights law in general. There is even a
possibility that the latter will develop in increasingly less benign
directions, since such parties as
Thus,
I refer to the National Human Rights
Consultation ("the Consultation") and thank you for the opportunity
to make this submission.
The Consultation is timely, in that
Unfortunately, there is very little in
The Australian Constitution does provide some
limited protections against the overreach of government power; these protections
arise indirectly from the document's structure and some of its major content.
For example, the provision for democratic elections for the House of
Representatives and the Senate imposes, by implication, some limit on the power
of governments at all levels (Commonwealth, State, and local) to enact laws
infringing freedom of speech. That is because at least some kinds of political
speech are required for the operation of any system of democratic elections.
Furthermore, the structure of the constitution, with its separate provision in
Chapter
However, these protections of rights and
freedoms are available from, as it were, a side wind, and do not reflect any
principled conclusions as to what rights and freedoms should be enjoyed by
Australian citizens, residents, and new arrivals or visitors.
In this submission, I will consider what means should
be adopted to protect the rights and freedoms of individuals in Australia, on
the assumption that we live in what at least aspires to be a modern, secular,
liberal society (I will abbreviate this throughout simply as "a liberal
society"). I am mindful that the Terms of Reference of the Consultation
expressly rule out the option of constitutionally-entrenched limitations on
legislative power, such as might be located in a Bill of Rights. However, I am
concerned that this restriction is unnecessarily pre-emptive of the full range
of options that might be available to protect our rights and freedoms.
I submit that fully adequate protection of our
rights and freedoms would require the inclusion of core civil liberties, such
as freedom of speech and expression, and freedom of belief, conscience, and
worship, in a constitutionally-entrenched Bill of Rights, along with strong
procedural protections before anyone can be subjected to punishment,
imprisonment, detention, ill-treatment, or other loss of liberties. In
addition, I submit, governments and potential governments (in other words, all
major political parties) should commit themselves unequivocally to the Millian
harm principle and the maintenance of a broad sphere of personal freedom.
Likewise, critics and observers of government action should be encouraged to
apply these ideas, bearing in mind that they will, from time to time, operate
to benefit many parties, whether rich or poor, privileged or marginalised,
attractive or the opposite. We should not support the provision of important
rights and freedoms only to those parties for whom we happen to feel sympathy.
Unless all these steps are taken, the future may
be bleak, since many important freedoms will be at the mercy of a political
process that is often driven by crude populism.
Nonetheless, I am conscious of two important
points. First, it appears almost inconceivable that there could, under any
near-term or medium-term circumstances, be a successful referendum to amend the
Australian Constitution to include new protections of rights and freedoms.
Second, the terms of the Consultation rule out proposals for constitutional
change that would introduce entrenched limits on the power of the Commonwealth
parliament. Accordingly, with considerable misgivings, I will put forward a set
of recommendations that does not involve amendments to the Australian
Constitution. I must, however, add that I am convinced that much of the
opposition to constitutionally-entrenched rights and freedoms is misguided.
Furthermore, much of this misguided opposition seems to extend to any change
that could (to whatever extent) hinder or control the use of legislative power.
As this sort of opposition is (as I perceive things) wrong in principle, yet
highly influential in Australian political discussion, I do propose to explain
(in Section 13) why it should not be accepted.
Adequate protection of the rights and freedoms
of Australian citizens, residents, and others will require continual social,
cultural, and political struggle. Nonetheless, some one-off alterations to
existing arrangements might be useful at least as an experiment. Accordingly,
I recommend one key institutional change: this is the creation of a statutory
body, to be called, I suggest, "the Independent Commission for Rights and
Freedoms". This agency would be empowered to scrutinise existing and new
federal legislation, and to report to parliament and the public on its
compliance with a set of statutory criteria that cover the most fundamental
rights and freedoms that ought to constrain the use of political power in a
liberal society.
As
already indicated, I assume throughout this submission that
A
liberal society embraces pluralism, in the sense that it does not seek to
impose any one vision of what it means to be virtuous or to lead a good life.
Within such a society, approval is commonly expressed for John Stuart Mill's
view that "experiments in living" should not be merely tolerated, but
actually welcomed and celebrated (Mill 1974: 120). As Max Charlesworth writes,
"In a liberal society personal autonomy, the right to choose one's own way
of life for oneself, is the supreme value." He adds that this includes
what he calls ethical pluralism: members of the society are free to hold a wide
range of moral, religious, and non-religious positions, with no core values or
public morality that it is the law's business to enforce" (M. Charlesworth
1993: 1). Accordingly, a liberal society is one that is marked by an attitude
of official toleration for a wide range of behaviour (in what follows, I refer
to this as "liberal tolerance").
In a recent defence of liberalism, Paul Starr
offers a rich description of the liberal ideal. Liberalism (as Starr
understands it) has allowed people with different religious and moral
commitments not just to live side by side, but to flourish together. A liberal
state will not require everyone to worship in the same way, follow the same way
of life, or profess an official ideology, but it expects citizens to show
reasonableness and openness to ideas. It is not neutral about such values as
disease and health, sloth and effort, deceit and integrity, cowardice and
courage (Starr 2007: 176-77). Nonetheless, Starr argues, a liberal state is
neutral where divisions over the nature of the good life are deep and
irreconcilable. Most crucially, the state apparatus of a liberal society allows
a diversity of cultural and moral practices that cause no harm to others; this
provides a framework for individuals' free development (Starr 2007: 22-23).
On an approach such as Starr's, liberalism can
welcome any worldview that is able to endorse such ideas as mutual tolerance
and the free development of autonomous individuals.1 As Starr points out, modern liberalism has also
adapted to growing agglomerations of private power, the harsh collective and
individual impacts of unregulated markets, social changes, economic crises, and
unprecedented scales of warfare (Starr 2007: 85-116). Surely this is correct:
as a result of social and economic change over the last few centuries, the
apparatus of the state now exercises extensive powers for the purposes of
social coordination and to ameliorate the harshness of economic outcomes that
would arise under a system of unbridled capitalist competition (see, e.g.,
Atiyah 1979: 571-779). However, these powers are explained in liberal thought on
the basis that their use is meant to extend, rather than reduce, the practical
autonomy of individual citizens (Lee 1986: 16-17; Raz 1986: 414-18).
Unless some kind of harm can be identified, a
liberal society is reluctant to restrict the liberty of individuals to act as
they wish with the resources available to them. Even the idea of harm is
usually restricted to direct, significant, and wrongful harm to others. In
particular, the harm described must be to secular interests, not to theological
ones such as interests in personal salvation, holiness, purity from sin, or
conformity to the will of a deity.2
In a
liberal society, the state will be particularly deferential to freedom of
choice where individuals' personal life plans are at stake, including their
ability to express themselves freely, have consenting sexual relations, and
make reproductive decisions. Prima facie, the infliction or threat of force by
the state is considered objectionable, especially so when very personal
interests are at stake, as with choices about sexual relationships and family
formation.3 In short, a liberal
society is unwilling to punish individuals' freely-chosen actions in the
absence of harms to others, and it is especially keen to protect the choices of
competent individuals where they fall within a broadly-defined sphere of
personal freedom.
Some of the most forthright defences of liberal
tolerance in recent years have come from thinkers in the field of bioethics,
where governments have been especially prone to introduce illiberal laws.
For example, John Harris, a leading
philosophical bioethicist, based at the
Debates over new biomedical technology provide
excellent case studies of illiberal public policy, since bioethical issues have
frequently evoked near-hysterical responses. To a large extent, these were
provoked by the 1997 announcement in Nature
that scientists in the UK had succeeded in cloning an adult sheep using what is
known as somatic cell nuclear transfer ("
One outcome of the recent debates has been the
enactment of the Prohibition of Human
Cloning for Reproduction Act 2002 (Cth) ("the Prohibition of Human Cloning Act"). In its current form, as
amended, this specifies a raft of criminal offences with maximum terms of
imprisonment of fifteen years. The offences set out in the Act include any
deliberate alteration of a human cell that would be inheritable, and intended
as such (section 15), and any action that involves placing what the Act calls
"a human embryo clone" in the body of a human being or another animal
(section 9). The legislation bans germ-line manipulation of embryos for any
reason, along with certain actions that would be needed for reproductive
cloning.
I submit that this Act contains little that can
be justified on grounds that should be acceptable in a liberal society. Instead
it responds in an anti-liberal way to assuage populist fears of new technology
that can be perceived as a Frankensteinian violation of the natural order.
However unpopular a practice such as human cloning might be, a liberal society
has no business in banning any practice merely to calm the fears of the
majority. Rather, it needs to identify harm to others. While human cloning
should not be used as a method of reproduction until such a time as it becomes
a safe technology, there should be no objection to its use thereafter. It is
unfortunate that politicians in
The Prohibition
of Human Cloning Act operates in conjunction with numerous other
restrictions on the use of biomedical technology under state legislation and
guidelines issued by the National Health and Medical Research Commission
("NHMRC").
In particular, the use of PGD for embryonic sex
selection, a technology that is already available, is proscribed by NHMRC
guidelines and prohibited by some state provisions such as Victoria's Infertility Treatment Act 1995 (Vic.),
which provides a maximum two-year penalty for any attempt to predetermine the
sex of a child by technological means, except where necessary for medical
reasons (section 50). These provisions have no justification, much less any
compelling one, in a liberal society. Sex selection harms no individual, but
merely influences which individuals will come into existence. There is no evidence
that the availability of sex selection would produce sex imbalances if allowed
in Western societies: thus, even if there is a compelling justification for
such laws in, say,
Of course, illiberal tendencies in public policy
are not, and cannot be, confined to bioethical issues. If the idea of liberal
tolerance is not constantly kept in mind, many unpopular practices will end up
being suppressed by the coercive power of the state. To take a glaring example
and this example is like an elephant in the room much of the policy
framework in Australia and elsewhere for dealing with recreational drugs seems
to be driven by an illiberal form of moralism, rather than a concern with
liberty or even a concern for harm reduction.
As I draft this submission, it is 75 years since
the American states ratified the Twenty-first Amendment to the US Constitution,
officially ending the Prohibition era after a disastrous decade and a half of
well-intentioned social engineering. By the 1930s, even some of Prohibition's
strongest supporters had reached the plain conclusion that the experiment had
done more harm than good; whatever evils arose from legal consumption of
alcohol were less than those caused by trying to suppress it. That lesson can
be generalised more widely, but it does not seem to have been taken to heart in
(supposedly) liberal societies since countries such as the US and Australia
continue their futile and socially-damaging efforts to suppress the use of
"soft" recreational drugs, such as marijuana, and "hard"
drugs, such as heroin.
One might expect that a liberal society, not
tied to ideas of enforcing morality through the law, would understand that
considerations of individual freedom and compassion converge to create an
overwhelming case for the repeal of such laws. The so-called "War on
Drugs" is a shameful failure. It has inflicted the stigma of criminality
on many people who have done no harm to others, while producing human and
social costs vastly greater than could have been caused merely by the
consumption of the drugs themselves, with their well-known mix of pleasures and
dangers.
A genuinely liberal society, interested in
protecting individual rights and freedoms, as well as the best interests of its
citizens, should look far beyond protecting the merely procedural rights of
accused persons in drug-related cases. The time has come to inquire closely into the more
substantive issue: why are these drugs prohibited in the first place? I submit
that the prohibition cannot be justified. The legal framework should be revised
radically: many drugs that are currently prohibited should be fully legalised.
Legislative bans should be replaced with more rational forms of regulation, and
all of the well-known recreational drugs should be regarded with the same
mixture of caution and acceptance that currently applies to alcohol.
In this section, I attempt to define the harm
principle advocated by John Stuart Mill with greater precision than I have
introduced so far. Mill famously claimed that only the prevention of harm to
others can justify the exercise of power over an individual in a civilised
community (Mill 1974: 68-69). As elaborated by Mill, this principle rules out
the use of social power (particularly legal prohibitions) to intrude on actions
that directly affect only the individual concerned and any consenting parties.4 Importantly, Mill held that it is not sufficient that
others might ultimately be affected, and perhaps harmed, by an indirect process
(71). In this same spirit, I suggest that the harms must be serious, and must
be of a secular kind: i.e., harms to worldly things, such as life, health,
liberty, and property, rather than to spiritual salvation, holiness or purity
from sin, or the gratification of a deity.
Mill's requirement that the harm be direct
raises obvious problems, since directness may be a matter of degree. Perhaps
what really matters are such things as the urgency of a situation, the
likelihood of harm eventuating, or the futility of attempts to avert the risk
by relatively non-coercive means, such as education or persuasion. This way of
looking at the issue does not reflect Mill's own language, but it does explain
his famous example of an angry mob gathered in front of a corn dealer's house.
According to Mill, it is permissible to punish words that might rouse the mob
to immediate violence, such as a demagogue's claim that corn dealers are
starvers of the poor (1974: 119). Mill accepts the possibility of punishment in
such a case even though the words by themselves do not harm the corn dealer.
One important issue here is that the harm
principle is aimed only at wrongful harms, not those that are somehow deserved,
consented to, or otherwise considered legitimate. This notion of legitimacy is,
again, difficult to define in such a way that a bright line can be drawn.
Briefly, however, advocates of the harm principle generally argue that not all
adverse outcomes from involvement in social or economic competition should be
cognisable as harms by the law. Mill's own discussion excludes the harm
suffered from lack of success in a competitive examination or an overcrowded
profession, unless the means involved have included fraud, treachery, or force
(1974: 163-64). Similarly, Feinberg is at pains to confine his conception of harm to those setbacks to interest that are
also wrongs (1984: 35-36). On Feinberg's account, it is not wrongful to defeat
a rival for a beloved's heart, or for a desirable job, unless the methods
involve some kind of indefensible attack on the rival's interests (such as a
kick in the groin to a rival in love) (1984: 113-14). In a similar spirit, J.L.
Mackie suggests that society should not try to suppress competition and
conflict as opposed to regulating and attempting to accommodate them (Mackie
1977: 232-37).
Feinberg's four-volume magnum opus, The Moral Limits
of the Criminal Law, explores the ramifications of the harm principle in
intricate and (I suggest) generally compelling detail. I don't propose to summarise
Feinberg's views in their entirety, but much of his account would be captured
by an insistence that any harm be significant, secular, direct or urgent,
inflicted upon others (rather than self-inflicted), and wrongful in the sense
discussed in the previous paragraph. Though there is room for discussion of
fine points, the prevention of harm, understood in approximately this way, has
become the least controversial of the possible uses of the criminal law. It can
be contrasted with other possible uses, such as to protect us from our own
actions, to prevent us offending others, or to enforce morality as such (see
Buchanan, et al.: 205). However, some
theorists broadly in the tradition of Mill, including Feinberg, do recognise a
limited role for other principles.
In addition to the harm principle, Feinberg
adopts a constrained version of the offence principle, accepting offence to
others as a legitimate basis for criminalisation in some very limited
circumstances (1985: 26). For Feinberg, the relevant considerations for public
policy include the intensity and durability of the experienced repugnance, the
extent to which it could have been anticipated as affecting people who are not
especially susceptible, the ease with which it could be avoided by those who
experience it, and the extent to which the latter have assumed the risk of
being offended, through their curiosity or anticipation of pleasure. Feinberg
also emphasises that the interests of those giving the offence must be given
due consideration when a policy response is formulated.
Issues relating to offence can be important in
many contexts, but it is not necessary, for the purposes of this submission, to
determine exactly where the line should be drawn. Wherever a liberal society
might draw the line, it cannot accept that serious offence sufficiently
serious to justify coercion by the state follows merely from knowledge that a
deeply disliked activity is taking place in private (Hart 1963: 46-47). On the
contrary, a liberal society will provide strong protections even to public
displays. This is partly because of the propensity of people to take offence at
many useful, or even necessary, activities, and partly because of the history
of offence-taking by mere bigots, who would, for example, have forbidden the
public expression of love between interracial couples (Feinberg 1985: 25-26).
Hart and Raz also accept a limited role for the
state in protecting citizens against self-inflicted harms (Hart 1963: 30-34;
Raz 1986: 22-23). But just how far we should accept such paternalism may depend
upon a number of factors. It is clearly more acceptable where those who are
protected from themselves are children, young teenagers, or others who may not
appear competent to decide for themselves, as opposed (to take the opposite
extreme) to adults at the height of their deliberative powers. As a general
proposition, competent adults have good reason to trust their own decisions
about how they live their own lives, and to distrust the efforts of the state
to make decisions on their behalf. Even children and teenagers deserve to be
treated with a fair measure of respect for their choices, rather than with
sentimentality or condescension. There is always a danger that public policy
will fail to respect the reasonable decisions of children and especially those
of mature minors.
Paternalistic laws may be more acceptable when
they impose only trivial burdens (as with the compulsory use of seat-belts) or
in those areas where something more than ordinary adult competence in
understanding and deliberation is required to make a sound decision. The
scientific study of medical drugs, for example, is highly complex, and few
people who are not specifically trained can seriously claim the expertise to
treat themselves with the entire pharmacopoeia of drugs that are legally
available. Hence, it is not an insult to our competence or a serious violation
of our autonomy if a government sets up bodies and standards to regulate the
availability and prescription of drugs.
But paternalistic laws relating to medical drugs
would be unacceptable if taken to an extreme that prevents adults from making
decisions within their own competence. Competent adults would be justified in
taking offence at a law that required, for example, that aspirin could be
obtained only by medical prescription. It is also offensively paternalistic to
ban well-known recreational drugs such as alcohol (in other times and places),
marijuana, and even hard drugs such as heroin. Moreover, such bans have many
ramifications that make them counterproductive even as harm-prevention
measures.
This brief discussion of harm to others, offence
to others, and paternalism is not intended to be definitive, but it strongly
suggests that the use of coercion is most likely to be justified when direct,
secular harm to others is involved. If coercion can be justified in respect of
some indirect harms, it is to the extent that they resemble more direct ones in
the need for an urgent response; if it can be justified in respect of some kinds
of offence, it is to the extent that the high impact of some offensive images
(or smells, etc.) merges with unequivocal harm; if it can be justified in
respect of some self-inflicted harms, it is largely to the extent that we have
good reason not to trust our own judgment in areas requiring sophisticated
technical competence. The examples discussed tend to confirm that the harm
principle is at least the central
principle for the justification of political coercion in a liberal society. Any
extensions of it should be principled and cautious, with the presumption of
freedom applying except in the clearest cases.
Before continuing, it is well to remember that
the criminal law is not the only means by which the state could react with
hostility to a practice, attempting to suppress it through the exercise of
political power. In current social circumstances prevailing in Western
societies, the criminal law uses punishments that can include the infliction of
a range of harms, such as loss of liberty or property, while also expressing
public resentment, indignation, reprobation, and disapproval (Feinberg 1970:
98). But much the same infliction of harm and officially-sanctioned stigma
could be accomplished by means that do not involve a criminal justice system as
we know it.
Even in current liberal societies, the
difference between criminal law and civil law is arbitrary to some extent, and
may not always be of great substance. Modern statutes frequently create civil
offences, often applying to corporations or their officers. Although civil laws
do not categorise those who breach them as criminals, they, too, can be used to
attach a stigma to actions and to individuals, and even to destroy reputations
and careers. Think, too, of how we should categorise a provision that provides
for punitive damages in defined circumstances, or such innovations as attempts
to "discourage law-breaking" by imposing triple damages for breach of
a statutory obligation.5 This would
not be a criminal provision, but the purpose is similar to that of the criminal
law.
Moreover, the state can select many hostile and
repressive means to achieve its aims. These include propaganda campaigns that
stigmatise certain categories of people and officially-tolerated discrimination
against people of whom it disapproves, such as by denying certain categories of
people access to government employment. A liberal society requires good
justification before it calls upon the power of the state to suppress any form
of conduct by any of these means.
Many controversial questions arise in respect of
alleged harms to human zygotes, embryos, and fetuses; often, "harms"
to the so-called "unborn" are alleged to provide a basis for
prohibition of abortion. Similar arguments can be used against medical research
that results in the destruction of human embryos. In this section, I argue that
none of these can harmed in the same way as an adult human being or a
developing child.
Allegations about harms that should be prevented
by the criminal law are especially weak when we are considering early embryos,
which should not, I suggest, be regarded as entities capable of having genuine
interests. Consider what interests an early embryo could have. Unlike an adult human being, a
child, or even a baby, an early embryo has not developed a nervous system, and
it cannot feel terror or pain. Thus the alleged wrongfulness of a scientist's
conduct in destroying it, or discarding it, cannot consist in inflicting upon a
entity something that it feared or something that it experiences as unpleasant.
The predicament of an embryo that has been created for a purpose such as stem
cell research may be contrasted with that of an adult human being who has been
diagnosed with cancer, and fears the rapid approach of death. A prognosis of
imminent death from cancer is tragic. A proposal to discard an early embryo is
nothing of the sort.
Should
any of us fear death or see it as a harm? In ancient times, Epicurus and his followers argued
to the contrary, and it is worthwhile seeing where their arguments go wrong.
According to Epicurus, we have no reason to fear death, if death involves the
extinction of all sensation; he claimed that death is "nothing to
us", something that is neither good nor evil (Long and Sedley 1987: 149).
Indeed, there is a puzzle about how death can be a misfortune for any of us if
there is nothing we can experience afterwards. I submit, however, that the
approach of death truly is an evil for most human beings, even if there is
nothing unpleasant about actually being dead.
Once
we are born and begin to become part of a society, we soon have good reasons
for preferring to stay alive: reasons that are forward-looking (Nussbaum 1994:
192-238, 204-212). For example, I may wish to complete a philosophical monograph
that I am writing, or the developmental work on a new curriculum, or the
research required to support this submission. I may want to see some progress
for a political cause that I have taken up. Various people may love me, and
some of them may be emotionally shattered by my death (I care about this
because I love them). No one could be
indifferent to a medical prognosis of imminent death while retaining such
forward-looking attachments to life. But, contrary to what Epicurus might advise, those attachments are among the most valued aspects
of our experience, not something we can or should discard.
Contrast
an early embryo, marked for destruction in medical research. It does not fear
death. It is incapable of planning books or curricula, of identifying with
political causes, or falling in love. It cannot imagine the future at all. It
has no networks of kin, loved ones, dependents or colleagues, and cannot commit
itself to any projects that give it reasons to want to go on living and
developing. Indeed, it has no wants. There is nothing at all that it is like to
be an early embryo, and if death is a misfortune for it in some way, it is
certainly not in the same way as for a human adult or a human child. It is
difficult to see why moral weight should be put on a need to avert whatever
kind of "misfortune" we wish to attribute to the embryo. It cannot
outweigh the interests of actual adults and children whose lives, well-being,
and hopes for the future depend crucially on the development of new medical therapies.
Embryos,
then, cannot have meaningful interests. In any event, we have no compelling
reason to give moral weight to whatever bizarre "interests" can be
attributed to entities that are unable to suffer pain or frustration, have no
forward-looking subjective attachments to life, and do not know fear.
Furthermore, there is no rational justification for thinking of embryos in the
emotionally-charged and culturally rich ways that we inevitably think of babies
and young children.
This leads me to an important point that is
relevant to the abortion debate. Adult human beings are drawn as if by instinct to babies and
young children, even those of other parents. As Kunich puts it, we find babies
uniquely "appealing and endearing", and feel "driven to care for
them and nurture them" (Kunich 2003: 139). In acknowledging this, we need
take no dogmatic stance on exactly how far our attitudes to babies can be
correctly described as "instinctive", rather than the product of
similar situations across human cultures. The more important point is that
these attitudes are inevitable for creatures like us.
For
whatever precise combination of reasons, we are immediately moved by strong
emotions when we hear, or read, of acts in which babies are murdered or treated
cruelly. Note, however, that this is not because we think automatically of the
violation of "growing-up rights" that babies share with other
"potential persons", such as embryos. It is not even because we
imaginatively place ourselves within a baby's viewpoint. Our shock that someone
could act in such a way is more direct. What sort of individual would do such a
thing? At the same time, we can easily put ourselves in the place of a mother
whose baby is killed before her eyes in a cruel way. Without experiencing it,
perhaps we cannot fully imagine what it is like to have such a bond destroyed
by the actions of a sociopathic criminal or a brutal enemy soldier, but even a
limited sense of it evokes our spontaneous compassion mixed with feelings of
outrage.
All
of these attitudes and emotions towards babies and their mothers are of benefit
to the flourishing of human cultures and communities, and there is certainly no
good reason to try to disown and suppress them. On the contrary, they are an
aspect of our psychology that we have every reason to endorse. We should
continue to think in the way we do, be glad that parents bond so readily and
strongly with their children, and reaffirm the significance that we accord to a
young member's entry into our community (Warren 1992: 198-215, 205-8). Nor need
a liberal society be neutral about all this. Public policy should lean towards
assisting mothers and other family members in caring for their young children.
And yet, this is all remote from early embryos produced in vitro for use in
scientific research.
This takes us in the direction
of a familiar defence of abortion, based on the fact that, although a fetus is
human (no one doubts that it belongs to the species Homo sapiens) it is not a human person (e.g. Singer 1993: 151-52).
It does not possess such characteristics as self-consciousness and a sense of
its own future. Although a fetus can experience pain once cortical development
proceeds beyond a certain point, death cannot be a misfortune for the fetus in
the same way as it is for an adult or even a child, both of whom have
preferences about the future. According to this approach, abortions should be
carried out with the minimum possible amount of pain for the fetus, which
suggests a preference for early abortions if possible, but aborting a fetus is
not morally equivalent to murdering a child or an adult. No harm of the same
kind is done. I believe that this argument is unanswerable and that it entails
that the harm principle cannot justify the prohibition of abortions (as long as
the pregnant woman concerned genuinely seeks the abortion or agrees to it;
compulsory abortions obviously inflict great harm on the mother).
Arguments along these lines
are often thought to cause embarrassment to those who support the so-called
"pro-choice" position. The imagined embarrassment arises from the
fact that newly born babies are not human persons either: there is nothing
special about birth, because the intrinsic characteristics of a late fetus and
a newborn baby are much the same. Such capacities as self-consciousness and a
sense of the future develop over time after a baby is born. And yet, we tend to
consider the killing of a young baby to be a serious crime. Why not take the
same attitude to late abortions?
Although it is desirable for
abortions to be carried as early as possible, we should not lose sight of the
considerations that I have discussed in the paragraphs above. A liberal society
has good reasons to favour the nurturing, protection, and socialisation of
children, perhaps even as birth approaches and certainly after birth. It has
good reasons to favour the strong pro-baby sentiments that most of us possess,
as if by instinct, but not to force
women to become mothers against their will. Richard Garner has summed up the
situation with abortion very well, pointing out what we might actually
see if we look carefully. In the classic sort of case, we see, on the one hand,
"an actual pregnant teenager who desperately wants an abortion"
contrasted with the fetus that she wants aborted. As Garner says, it is
difficult to see how any information we could obtain about the fetus could move
our compassion more than the information we can obtain "about a real young
woman with a face, a name, and a full complement of hopes, fears, and
plans" (Garner: 373). Things will go terribly badly by most humane
standards if the teenager is denied the abortion she wants so much, and she is
forced to become a mother.6
Accordingly, a liberal society
can and should allow for strong abortion rights while also, generally speaking,
forbidding harms to babies once they are born. Even here, such a society should
favour humane rather than dogmatic solutions when a baby is born with no
prospects of growing into a human adult with an ordinary human life such as
the case of anencephalic babies.
Freedom
of speech and expression is the most important freedom of all in a liberal society.
It is also the one that is most apt for protection in such a society's
fundamental legal arrangements, e.g. by means of a constitutionally-entrenched
provision preventing governments from taking action to abridge the freedom. In
my emphasis on the importance of this freedom, I appear to be in disagreement
with the head of the Consultation, Father Brennan, so perhaps it is all the
more important to discuss the issue in some detail.
A
starting point is to identify the deeper considerations that underlie freedom
of speech and expression (for convenience I'll henceforth tend to abbreviate
this as simply "freedom of speech" or "free speech"). Why
is it such an important political principle? In part, the justification for
free speech is the general presumption, in a liberal society, against coercing
individuals in a manner that prevents them from living how they please and
doing what they want. However, a number of special justifications are commonly
put forward for free speech, in particular. In her judgment in R v. Keegstra, a 1990 Canadian Supreme
Court case on hate propaganda, Justice McLachlan provided an accessible and
concise synopsis:7 (1) free speech promotes "the free flow of ideas
essential to political democracy and democratic institutions" and limits
the ability of the state to subvert other rights and freedoms;8 (2) it promotes a marketplace of ideas, which includes, but
is not limited to, the search for truth;9 (3) it is intrinsically
valuable as part of the self-actualisation of speakers and listeners;10 and (4) it is justified by the
dangers for good government of allowing its suppression.11
Though
other justifications are sometimes adduced, such as the need to obtain
information about products and services to make enlightened choices in a consumer
society, those stated by Justice McLachlan cover some of the most persuasive
considerations. Each of these justifications can be elaborated in a variety of
ways and some may need to be qualified.
The
first and fourth can be bracketed together as democratic justifications. They
relate to aspects of free speech's political role in a liberal democracy. The
third stresses the particular importance of language, symbolism and
representation for our lives and autonomy. It can be developed further by referring
to the importance for individuals of communicating deeply held religious and
similar beliefs and the value of creativity as expressed in literature, art and
many other ways, including personal presentation or "style". The
issue here is how we should treat other individuals as moral and psychological
beings. We might refer to this as the "moral" justification, if we
want to distinguish between political principles and principles that relate to
the moral rights of individuals and our intuitions about how people should be
treated. However, it also highlights the fact that we are beings with
psychological needs that involve self-expression and self-actualisation. With
this in mind, and with some misgivings about the expression, I will refer to
the "psychological" justification of free speech.
Alan
Haworth (1998: 24-29 ) has emphasised that John Stuart
Mill's classic defence of free speech, in On
Liberty, is actually phrased as a defence of "the Liberty of Thought
and Discussion". Mill did not express this idea in terms of a
"marketplace" and his conception was essentially that of freedom to
develop and discuss ideas in the search for truth or understanding. Another way
of putting this second justification is that free speech of certain kinds is integral
to rational inquiry. If we value this, we should also advocate the liberty to
articulate potentially unpalatable or unpopular ideas. Mill's argument might be
termed "the rationalist justification". It is very powerful as far as
it goes but inevitably somewhat elitist, for relatively little speech and
expression in real-world societies appeals primarily to the intellect.
However,
there are senses in which the rationalist justification can be extended beyond
the speech of academics, scientists and other intellectuals. In one sense, it
merges with the psychological justification, if it is interpreted as our
individual need to pursue truth and understanding in our way
own, necessarily reliant on resources available through language. In
another sense, it encourages us to protect serious literature and art,
especially narrative forms such as prose fiction, theatre and cinema, one
function of which is to open minds by appeals to the imagination. The
rationalist justification also merges with the democratic justification,
insofar as debate about political ideas, with attempts to find the truth about
the best kinds of political structures, principles, and policies, forms a large
component of the general pursuit of truth in modern societies. Moreover, it
supports the importance not just of speech but of all methods of inquiry into
the nature of the world, such as those used by science.
On
Note,
however, that no entire society can operate like a seminar. If too much weight
is given to
Further,
it allows the participation of individuals, perhaps the majority, who may not
have been socialised or trained to express themselves with the detachment and
urbanity that might be expected in a seminar for middle-aged philosophy
professors. If freedom of speech is confined too closely to decorous speech,
this is likely to disadvantage young people, working class people, and many
other groups who need the freedom to speak out while experiencing the urbane
speech of middle-aged and middle-class professors as almost like a foreign
language.
This
analysis suggests a number of conclusions. First, there are powerful
overlapping arguments for free speech as a basic political principle in any
liberal democracy. Second, however, free speech is not a simple and absolute
concept but a liberty that is justified by even deeper values. Third, the values implicit in the democratic, rationalist, and
psychological justifications for free speech will not apply equally strongly to
all speech in all circumstances. For example, these "free speech
values" may not be at stake to their fullest extent when there are
proposals to regulate purely commercial advertising or entirely cynical works
of pornography. I will say more about this below.
If
freedom of speech is to operate as a political principle that imposes practical
restraints on the coercive power of the state, it needs to be formulated in a
relatively simple and sweeping way. It cannot track the precise relevance of
underlying free speech values in every circumstance where speech might be
suppressed. It follows that a constitutional restriction on state interference
with free speech might give practical protection to some speech that has little
to do with democratic, rationalist and psychological values. This creates a
buffer zone around the more central areas where free speech values apply, and
that is all to the good. In particular circumstances, other values might be
more important than free speech, but any exceptions to the principle must be
defined carefully and applied sparingly. Otherwise, they will soon gobble up
the rule.
In the
In
There are two main ways that federal laws can be
attacked for restricting freedom of speech, neither of which is the result of
any principled consideration of what speech ought to lie beyond parliamentary
restriction in a country such as Australia. First, some federal heads of power are interpreted by the courts as
"purposive", meaning that they confer a power to enact statutes for
particular purposes, such as national defence. Since anything can be enacted
for almost any purpose at all or at least asserted to be the courts require
some rational connection and proportionality between the enactment and the
supposed purpose. Otherwise, the purposive heads of power would be unlimited,
which is clearly not the constitution's intent. Where a purposive power is
relied upon, legislation attacking basic rights and freedoms recognised by the
common law will sometimes be held by the courts to exceed the power of the
parliament, where a purposive power is relied upon. Thus the High Court struck
down a ban on the use of the everyday words "200 years" in proximity
to "1788" or "1988", which was part of an overly zealous
effort to promote
Second,
there is a constraint on the power of Australian legislatures to enact
statutory provisions that violate an implied constitutional freedom of
political speech. Developed by the High Court through the 1990s, this doctrine
prevents political censorship, at least for its own sake. The doctrine was
first articulated in Australian Capital
Television Pty Ltd v. The Commonwealth,14 which struck down laws that dramatically restricted
political advertising. As formulated in Lange
v. Australian Broadcasting Corporation,15
and refined in Coleman v. Power,16 the test of a federal or state law's validity is
two-fold. First, does it burden free speech about government and political
matters? Second, to use the High Court's jargon, is it reasonably appropriate
and adapted to serve a legitimate end in a manner compatible with the
procedures for federal elections and constitutional referendums set out in the
Constitution? If the answer to the first question is "yes" and that
to the second question is "no", a statute is unconstitutional.
In Lange,
the Court acknowledged that the federal legislation scrapped in Australian Capital Television was an
example of a law that might properly be held unconstitutional. Though it had
the legitimate end of tackling political corruption, the means were too
drastic. Surely this is correct: the impugned law would have severely limited
political advertising in a way that would have undermined the ability of lobby
groups and minor parties to compete with the major parties for the hearts and
minds of the electorate.
The cases show that the limited constitutional
protection of free speech in Australia is an inference from those provisions in
the constitution that entrench voting procedures for the houses of federal
parliament and for constitutional referendums. The reasoning is that such
voting procedures presuppose a liberty for members of the electorate to
articulate, receive, and debate ideas that are relevant to the exercise of
their democratic choice. State or federal legislation that impacts
disproportionately on this liberty is thus repugnant to a presupposition
underlying the constitution's structure and operation.
These two ways in which Australian
constitutional law gives limited protection to free speech are not
satisfactory. A great deal of material that would, I submit rightly, be constitutionally
protected in the
Yet, there is a pressing need in
A separate submission could be devoted solely to
the chilling effects of Australian defamation law. The law of defamation impinges seriously on robust
democratic debate and individual self-expression. Though the common law of
defamation has been developed by the High Court in a way that is intended to
conform to a constitutional protection of political communications, this is
still far too little to protect high-value forms of speech
such as criticism of the courts and satire of political figures. After some
brief comments, I will set aside this topic in the hope that there will be
other submissions focusing on it more closely.
I don't ask for the total abolition of torts
associated with defamation. There is a narrow area where the law should protect
the reputations of individuals from lies that could ruin their careers or lead
to their social ostracism. This is based on the fact that human beings are essentially
social animals. If an individual's good reputation in the society where she
lives, and on which she depends economically and psychologically, is destroyed,
that is a significant injury. Arguably, this should extend to true
revelations to the public about individuals' private lives the mass media can
be experienced as intrusive and powerful organisations, capable of oppressing
individual citizens, no matter how wealthy or prominent.
All this conceded, the law of defamation in its current form is
absurdly overprotective, and I advocate narrowing its operation as far as
possible (it certainly should not be extended further through concepts such as
group libel). Beyond the narrow areas where it is legitimate
to protect individuals from social ostracism or the unfair destruction of
careers, robust public debate should be permitted. This includes the acceptance
of harsh criticism and satire especially when these are aimed at the policies
and public activities (not the private lives) of public officials and
candidates for public office.
Outside the area of defamation law, there are
many other threats to freedom of speech and expression in
That
might have been the end of it, since Henson's exhibition was ultimately able to
go ahead, but this was not an example of the law working well. In the absence
of clear protections for freedom of speech and expression, Henson and others
associated with the exhibition had to deal with severe disruption, costly in
every sense. It is still possible that renewed attempts will be made to alter
the relevant
This
provides me with a good place to emphasise a key idea: crude populism can render individuals isolated and vulnerable, even if
they are people who otherwise possess a degree of privilege.
Missing
from most of the attacks on Henson and certainly the most virulent of them
was any imaginative identification with the artist, the models, and their
parents. These were people whose aesthetic values, and even obsessions, may not
have been easily comprehended by the mainstream electorate (for which sport of
one kind of another may be considered the only worthy focus for deep
involvement). There was little understanding of how Henson's photographs could
have been produced by anybody without a prurient
interest in the nascent sexuality of children, of how the children concerned
could possibly have made wise and mature decisions to take part, or why their
parents would have allowed them to. In this case, individuals such as Henson
and his patrons, who were privileged in other respects, became easy targets for
demonisation. The young models were subjected to highly offensive patronising
by individuals who wielded power and influence but seemed to have no
understanding of the inner lives of the human individuals whom they claimed to
protect.
Children
and teenagers in general suffer from the inability of (many or most) adults to
see them as capable of making consequential decisions. Often, talk of
children's rights degenerates into talk of paternalistic protections that
adults consider appropriate, rather than serious consideration of an
appropriate space for children to be able to make decisions that adults will
respect. The word "rights" is thus used an Orwellian sense:17
i.e., You have the right to be prevented
from making your own decisions because we know better.
In
the aftermath of the Henson episode, Arts
Monthly published its July 2008 issue in defence of the rights of artists,
adorning its cover with a well-known photograph of young model Olympia
Papapetrou, taken by her mother, Polixeni Papapetrou. Though
Perhaps
the most sensible words were those spoken by Olympia Papapetrou, aged eleven by
this time, when she took a starring role in a press conference over the Arts Monthly furore, and articulated exactly
what she thought of Rudd. "That was really, really rude," she said of
the prime minister's harsh comments on Henson and N. "And for him to be
talking about the picture with me in it, it doesn't feel good.
I love the
photo so much. It is one of my favourites if not my favourite photo my mum
has ever taken of me" (Marr 2008: 140). Here was a bright young person
speaking her mind without fear, opening up part of an entire inner world that
populist politicians and radio shock jocks evidently never imagine.
A
less well-known controversy about censorship in
Comstock's
approach, exemplified in Ashley and Kisha,
is to examine the lives of a couple who are involved in a loving (and intensely
sexual) relationship. The relationship is explored by juxtaposing the lovers'
conversations about it with images of their actual lovemaking. It is difficult
to locate anything offensive in this kind of film, and in a sense it is
surprising that Comstock's work even attracts controversy. It is shocking that
freedom of speech in
This
is, of course, far from the only experience of films being banned in
Another area where Australian
law has overreached in effectively censoring freedom of expression relates to
racial and religious vilification. Anti-vilification laws are meant to work
against the demonisation and scapegoating of vulnerable minorities, but it is
doubtful whether they have this effect in contemporary Australian
circumstances, particularly where the laws concerned cover religion rather than
race. Religious doctrines are ideas like any others, and are open to criticism.
Religious institutions exercise enormous private power and public influence
that can be used for good or ill, and it is legitimate for journalists,
academics, politicians, activists of various kinds, and ordinary people to
criticise the way that power and influence are used. No special immunity to
criticism or, indeed, satire, even of harsh kinds should be given to
religious ideas and institutions. Nor should any religion be immune to critique
from those who profess a rival religion that may be involved with it in a
struggle for converts. Yet, there has been a tendency for many defenders of
religion to seek these sorts of immunity.
In
recent times, this problem has been highlighted in
The
experience in
Sitting
as a
The
Court of Appeal was required, in particular, to interpret section 8 of the Act,
which stated that "A person must not, on the ground of the religious
belief or activity of another person or class of persons, engage in conduct
that incites hatred against, serious contempt for, or revulsion or severe
ridicule of, that other person or class of persons." Also relevant to the
proceedings was the correct construction of a defence provided in section 11,
which exempts conduct "engaged in reasonably and in good faith" for
various purposes, including a religious purpose.
The judges of the Court of Appeal handed down three separate judgments, leaving a number of issues open for future cases, particularly how clear a distinction can be made between hatred of a religion as such, as opposed to hatred of its adherents. However, it is fair to portray the gist of the judgment, on which there was considerable agreement among the three judges, as follows: the issue raised by section 8 is whether the natural and ordinary effect of a speaker's conduct, taken as a whole, on an ordinary person in its actual audience would be to create hatred (or serious contempt, etc.) for the people with the religious beliefs, on the ground of those religious beliefs. While this is complex, it is clearer than the convoluted drafting of the section itself, and to that extent is useful. As for section 11, "good faith" can be glossed as meaning "honestly and conscientiously for the purpose", while criticism of religion will be considered reasonable as long as it is not so ill-informed, misconceived, ignorant, or hurtful as to be beyond the bounds of toleration in a multicultural society.
The findings of the Court of Appeal are welcome not only because they give some much-needed clarity to the Act, but also because they impose a relatively strict test for the prohibition in section 8 and provide a relatively broad interpretation of the defence in section 11. One lesson from the case is that a well-resourced and determined defendant can probably resist claims of religious vilification unless its actions have been truly outrageous. Given the findings of the Court of Appeal, it is very doubtful that the claim could have succeeded in a rehearing.
But
the litigation overall is still disturbing. First, not all respondents are as
well-resourced or determined as Catch The Fire
Ministries proved to be. Such legislation must tend to chill legitimate, though
robust, criticism of religion, or a particular religion, or the adherents of
particular religions. Second, it is apparent that tribunal members and judges
will tend to take different attitudes to such legislation and to the importance
of freedom of speech. At the same time, third, it is difficult to draft
legislation of this kind, and the results are unpredictable. Again, this may
deter perfectly legitimate speech. Fourth, some specific issues have been left
in a state of uncertainty, including the significance of the distinction
between criticising a religion and criticising its adherents.
I submit that laws which provide judicial or quasi-judicial forums for redress from "religious vilification" tend to create further division in the community rather than to heal it. Furthermore, such laws chill legitimate speech. It would have been better if clear constitutional protection of freedom of speech had rendered the Act's divisive and illiberal provisions relating to religious vilification inoperative.
There is no evidence that Australian society has reached a point where such laws are necessary on the basis of an analogy with Mill's corn dealer example. No doubt there are incidents from time to time that involve incitements to crimes against individuals on the ground of religion, but incitements to crimes against individuals should be unlawful in any event, whatever the motive might be. Generally speaking that is the position in Australian law. That is, of course, quite acceptable.
However,
it is not acceptable for beliefs of
any sort to be protected from opposition, criticism, or satire. The freedom to
believe in a body of religious doctrine is no more than a negative right
against the state
admittedly a very important one. It is a guarantee that the state's power of
fire and sword (or in modern terms, prison cells and guns) will not be used in
liberal societies to suppress religious beliefs. But it does not entail that
other citizens must give your beliefs credence, or that they should offer the
content of your beliefs any particular deference or esteem (as opposed to
respecting your political right to have them). There can be no guarantee that
your doctrines will impress others as wise, plausible, or even rational; they
may, indeed, impress others as the opposite. If so, those others should have
every right to express their unfavourable impressions even in an ugly or wounding manner.
All
existing provisions relating to religious vilification, as opposed to general
laws on criminal incitement, should be repealed at the first opportunity.
Meanwhile, vigilance, and possibly political struggle, will be required if
there are any attempts to bolster the provisions so as to make them more
restrictive of free speech than has been the case so far. That is not an
unlikely prospect, if the sponsors of such legislation are determined that it
should lead to actual successes in suppressing speech and expression.
If
there is any reason to believe that criminal incitement laws are inadequate in
some jurisdictions, this situation should be reviewed. No new provisions should
be made that restrict freedom to oppose, criticise, or satirise religion in
general, a specific religion, or religious traditions and organisations and
their adherents. In particular, no provisions relating to religious
vilification should be enacted at the federal level. Freedom of speech may not
be the very deepest value as I have explained there are other values
underlying it but it should be looked on as a fundamental political principle
in a liberal society. It is too important to be compromised by well-intentioned
protection of religious sensibilities.
Clearly, racial vilification is in a separate category from religious vilification. A body of religious doctrine consists of ideas, which are fair targets for attack in a liberal society. Different religions are in a struggle of ideas against each other and against those of religious sceptics; this struggle should be permitted with minimal intervention by the state. Moreover, religious doctrines influence the social and political attitudes of their adherents in ways that merit comment (favourable or otherwise) and many religious organisations exert vast power and influence; it is in the public interest that this be subject to monitoring and criticism. By contrast, nothing like any of this applies to the category of "race". Thus, the positive reasons favouring critique of religion and religions do not apply in anything remotely like the same way to racial groups. It is therefore unfortunate, and inexcusable, that two such very different things are treated as similar by the Victorian legislation.
Nonetheless, experience with racial vilification legislation does show one thing that should cause concern to all defenders of free speech. It appears that a tribunal given the power to suppress or punish certain kinds of speech will tend to find ways to ensure that the power is actually used. That is, some tribunal members will read the effect of such laws expansively. The leading Australian case in this area, John Fairfax Publications Pty Ltd v Kazak,19 provides a good example of this. It shows how racial vilification laws can threaten legitimate criticism of particular cultures, societies and political leaderships.
The Kazak litigation involved a
forcefully-worded opinion in the Financial
Review, which was held to have breached a provision of the Anti-Discrimination Act 1977 (NSW)
forbidding communications to the public inciting "hatred, serious contempt
or ridicule" of a person or group of persons on the ground of their race.
The article comprised about 250 words of robust, opinionated criticism of
"the Palestinians" for turning against the
Although this piece was intemperate, it is difficult to imagine that the Financial Review's business-oriented readership interpreted it as a message that Palestinians are a fair target for racial hate. Yet, when the case was heard at first instance, the tribunal rejected the argument that the article was directed at the leadership or administration of the Palestinian people rather than Palestinians as such.
Fortunately, the outcome was reversed on appeal to the New South Wales Administrative Decisions Tribunals Appeal Panel.20 The Appeal Panel found that the tribunal had erred at first instance on this precise matter of fact, as well as matters of law. Once again, it appears that ill-founded claims made under anti-vilification legislation can be resisted by a sufficiently well-resourced and determined respondent, but again not everybody has the resources or the fortitude of a major business corporation such as John Fairfax.
This is not to suggest that there is never any role for legislation that
bans or restricts racial vilification. History shows that racist propaganda can
sometimes play an important role in the demonisation of racial groups, perhaps
leading to discrimination, violence, and even genocide. Moreover, the kinds of
public interest that support the criticism of religions along with all
systems of belief have no real counterpart when it comes to race. Racial
epithets and the use of racist images such as Nazi swastikas or Ku Klux Klan
style burning crosses can obviously create extreme forms of offence not to
mention intimidation, distress, or even terror. In all, there may well be a
case for racial vilification laws of some
kind in
Still, the historical experience of Aborigines, Asian immigrants, and others
in
However, they should be reviewed with a sceptical eye. Perhaps they should be recast in a narrower and more cautious form. The primary emphasis should be on the kind of hate propaganda promulgated by neo-Nazis and Nazi sympathisers, especially where this depicts people of a so-called "race" (a biologically dubious category) as sub-human or as vermin to be exterminated. The legislative goal should not be total suppression of ideas, however hateful,21 but (1) the protection of the public from truly dangerous campaigns of hate and incitements to violence, and (2) the protection of individual sensibilities from displays and campaigns that might be viewed unwillingly and have a high emotional impact that goes beyond mere offence or annoyance into the realm of distress. The drafting of the legislation should be responsive to needs that arise from current Australian circumstances, and there should be no possibility of further cases such as Kazak (in the decision at first instance) where legal liability is found for honest and legitimate commentary on matters of obvious public interest.
In
his 1998 book, Father Brennan opposes constitutional protection of free speech
in
Presumably Australian judges would be
left even further behind the play left to follow the reasoning of their
American brethren or compelled to justify to offended litigants why the
American hazy, crooked line in the sand between free speech, privacy,
reputation and public interest is not to be followed. Our judges have better
things to do with their time. (Brennan 1998: 145.)
With
all respect, this is a strange passage. Courts are continually required to deal
with difficult cases in which they seek assistance from earlier judgments in
other jurisdictions. Much of a skilled lawyer's art consists in the ability to
apply or distinguish previous cases, examining the reasoning closely,
attempting to reconcile cases that give superficially (or not so superficially)
different guidance, and making subtle distinctions. In difficult cases at the
higher levels of the judicial system, it is routine for judges to explain to
disappointed litigants why it was not considered appropriate to follow earlier
cases that the litigants perceived as being on point.
If
the Australian Constitution contained broader and more explicit protection of
free speech, Australian judges would, of course, seek assistance from
constitutional cases in, say, the US and Canada. However, they would not be
required to follow those cases mechanically, even if such a thing were
possible: the Australian guarantee of free speech might well be worded
differently from that in any other country; it would be incorporated in the
constitution under different historical circumstances that would justify
different inferences about its exact purpose and scope; and it would operate
under Australian conditions where any values countervailing against freedom of
speech would be, in some respects, unique. None of this is surprising. It is
not beyond the capacities of Australian judges to make such distinctions, and
the cases coming before the superior courts need be no more difficult than
those already dealt with by those courts when they deliberate upon such issues
as the extent of the corporations power, the limits of freedom in interstate
trade, or the correct application of the existing constitutional protection of
political speech.
While
Father Brennan's conclusion is unconvincing, taken in isolation, it is
supported by a chapter that analyses a number of foreign cases, suggesting that
their reasoning was unpersuasive and the outcomes unmerited. These cases tend
to involve forms of speech that (arguably) are low in value when considered
against the range of free speech values that I discussed in the previous
section of this submission. Such forms of speech include merely commercial
speech, the speech of corporations, and at least some forms of pornographic
material that are of little artistic or expressive worth. An examination of
such cases might give the impression that constitutional protection of free
speech leads to victories for undeserving litigants and meretricious speech (in
the face of worthy government attempts to regulate the latter for the public
benefit). While Father Brennan does not put the point in quite that way, it
appears to be sub-text of his discussion, and in any event it is a conclusion
that readers may draw if they are impressed by his analyses.
With
respect, I take a different view. Although there can be good grounds to forbid
or regulate some speech, such as speech that directly damages the reputations
of individuals and high-impact speech that directly causes feelings of
distress, intimidation, terror, and other severely unpleasant responses, most
speech is neither directly harmful nor capable of producing indirect harms that
are so severe, and so immediate or inevitable, as to justify government action
under the harm principle (or cautious and principled extensions of it). Even
where regulation might be justifiable, for example to protect the interests of
children, rigorous application of the Millian harm principle could justify few
outright bans on speech and expression.
Accordingly,
we should not lament if some low-value speech is protected by a constitutional
provision that is justified by its protection of high-value speech such as that
with political, artistic, or scientific value. In those rare cases where
certain kinds of speech are demonstrably harmful in a way that would meet the
requirements of the Millian principle, there will be a compelling justification
for regulating them. No constitutional provision is likely to prevent
regulation of speech and expression where such a truly compelling state
interest exists, but free speech is so important that the burden should always
lie on the state to prove that it has a compelling interest. In doing so, it
will be able to argue that its legislative response is properly proportionate;
and this may well, in turn, involve arguing that the only speech affected is of
relatively low value when examined against the values that underpin the idea of
free speech in the first place. (I should add, however, that even strictly commercial
speech can have value for its artistry or humour, for example, and that it
provides one outlet for the expression of talent that may not find other places
in a crowded market. The mere fact that something is commercial speech does not
entail that free speech values have no application at all.)
Some
may consider all this too much to ask of the courts, but I disagree it is not
beyond skilled advocates and judges to apply this kind of analysis to the cases
they must deal with. The courts deal with issues of similar complexity every
day.
That
remark is not, of course, meant to suggest that I agree with the disposition of
every difficult case that has come before the courts in this area (or any
other). Where cases are genuinely difficult, reasonable people even
reasonable people who are trained in the law may draw different conclusions.
Nonetheless, cases such as those discussed by Father Brennan do not display any
undue solicitude to meretricious speech. While different judges have different
emphases or competing doctrines, as in all complex areas of the law, the courts
have generally done their job well. I submit that this will only be confirmed
by an analysis of the cases that Father Brennan discusses in his 1998 book.
A study
of the US First Amendment jurisprudence shows that one area of conflict among
the justices of the Supreme Court has been over the protection of purely
commercial speech and (related to this) the protection of corporate speech,
whether commercial in nature or not. In particular, Chief Justice Rehnquist
fought a rearguard effort against constitutional protection of such forms of
speech.22
Until relatively recently, the settled law in
the US, as stated in Valentine v.
Chrestensen,23 was that purely
commercial advertising was not protected by the First Amendment. However, Valentine v. Chrestensen was overturned
by the Supreme Court in Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.24 In that case, the opinion of Court found that
individual advertisements might be of general public interest for example, a
manufacturer of artificial furs could promote the product "as an
alternative to the extinction by his [sic] competitors of fur-bearing
mammals" and that there were few
commercial messages to which such an element could not be added. Further, it
was held that the free flow of commercial information was indispensable for
proper allocation of economic resources and for informed opinions about
regulation of the free enterprise system.25
But Justice Rehnquist (as he was) dissented
strongly:
I had
understood this view [that the First Amendment was related to enlightened
decision-making] to relate to public decisionmaking as to political, social,
and other public issues, rather than the decision of a particular individual as
to whether to purchase one or another kind of shampoo.26
Justice Rehnquist again dissented in Bates v. State Bar of Arizona, in which,
however, the opinion of the Court adopted the same arguments as in Virginia State Board of Pharmacy and
emphasized that consumers may have a keener concern "for the free flow of
commercial speech ... than ... for urgent political dialogue."27
The US Supreme Court has, in fact, moved some
way to narrowing the First Amendment protection of commercial speech. The court
will not permit advertisers to gain the greater protection accorded to speech
on matter of public interest by including "discussions of important public
issues" with advertising matter: see Bolger
v. Young's Drug Products.28 It
will give a lesser protection to commercial speech than to speech in the
marketplace of ideas: see the tests specified in Central Hudson Gas & Electric Corporation v. Public Service
Commissioner of New York, which provided protection only to commercial
speech that relates to lawful activities and is not misleading. The protection
will yield to a substantial government interest directly advanced by the
impugned regulation, and provided the regulation concerned is not more
extensive than necessary to serve the interest.29
The
In discussing this issue, Father Brennan is
somewhat scathing about the outcome in 44
Liquormart Inc. v. Rhode Island,32 a
1996 case in which the Supreme Court struck down a ban on price advertising for
liquor. He comments:
It is one thing
to prize free speech. It is another to grant it such primacy that legislators
are required to limit or tax the freedom of action of citizens rather than
limiting the information to be made available to citizens who will then at
least be free to act without a state-imposed limitation or tax. (Brennan 1998: 140.)
Once again, I find this statement strange. One
might question whether it is really legitimate for a liberal society to engage
in a policy of deterring competent adults from using a product such as alcohol.
It is one thing to put in place a regime of paternalistic protections for
children, and this may require advertising restrictions, but it is another to
extend it to the point where adults are denied even information about prices.
However, I will pursue that aspect no further.
Even if paternalism towards its adult citizens were a legitimate role for the
state to play, it is doubly offensive to pursue it through a practice of
restricting information about the price of the product rather than, for
example, the more honest method of imposing a tax. The approach adopted by the
In
Once again, Father Brennan is scathing and
here he is on much stronger ground. In particular, part of the court's
reasoning related to its scepticism as to whether the impugned legislation
would really have reduced consumption. With respect to the learned judges
involved, this appears to be a bizarre ground on which to impugn the
legislation. There can be no doubt that the enactment of the legislation was intended to reduce consumption of the
product and that this was a likely effect, even if difficult to prove in
advance. Thus, the finding that there was no rational connection between the
ban and a reduction in consumption was, in my opinion, mistaken. However, that
is not the end of the matter. Once again, one might ask why, if it is a matter
of attempting to reduce consumption of a product, or to offset its social
costs, the state could not adopt the more direct and honest approach of
imposing or increasing a tax. Why deprive citizens of information about the
product on the basis that if they had the information they might be more
inclined to purchase the product? This is offensively paternalistic.
The Supreme Court would have been prepared to
allow restrictions on so-called lifestyle advertising, as opposed to more
purely informational advertising. In response, Father Brennan comments
sarcastically, "Does this mean a ban on featuring the woman in the bikini?
the sports car? the beach
backdrop? If you can show only the packet in the ad, can you feature a
lifestyle situation on the packet?" (Brennan 1998:
143-44). These are good questions. Once fine judgments are going to be
made about advertising, it can be difficult to draw a precise line. Obviously,
there will be room for disagreement at the margins, and it is likely that the
state will probe at those margins by legislating to the full extent of its
power and testing that extent in the courts. This will inevitably produce
some outcomes where judges disagree and there may be very close decisions, such
as the 5-4 split of the nine-member court in
However, the problem should be kept in
perspective. First, legislatures should not enact laws that are aimed at
reducing the consumption of a product by restricting the availability of
information about it to all possible customers, including competent adults. But
it is a different matter when regulation is put in place to protect
impressionable potential customers, such as children, from advertisements for
dangerous products. This may justify restrictions on the time, place, and
manner of advertising for certain products. Where the products are sufficiently
dangerous as cigarettes undoubtedly are even a very restrictive regime may
be justified. However, lines need to be drawn with such an exercise, both by
the legislature and by the courts. In that context, it might well be justified
to ban lifestyle advertising of cigarettes, even if this does raise difficult
questions (as Father Brennan asks, is the problem the bikini, the beach, or the
sports car?).
It is worth stressing once again that the legal
issues that reach a nation's highest court often involve difficult questions on
which reasonable people may differ and on which skilled and learned judges may
rule differently. Such cases become prominent in the legal landscape, but we
should not infer too much from the fact that a few difficult cases are decided
by a small majority at the level of the highest courts. We need to recall the
far greater number of cases and potential cases that never reach such heights
of the judicial system. They may be resolved at a lower level, perhaps by
negotiated settlements rather than judicial decision, or they may never arise
at all because the parties are guided in their behaviour by the authoritative
decisions of the highest courts, and they act in ways that clearly comply with
the law. Thus, for every case involving constitutional protections of free
speech that reaches the US Supreme Court or the Supreme Court of Canada,
numerous bright ideas for state infringement of citizens' freedom of speech may
never be enacted or even pursued in the party room because they would
clearly be unconstitutional.
A closely related issue to the freedom of
commercial speech is whether the speech of corporations is constitutionally
protected. I suggest that
Moreover, freedom of speech would inevitably
protect at least some corporations,
namely those that own the various mass media. Unfortunately, these corporations
are no less selfish than others. In the
Commercial
hardcore pornography might be seen as another form of speech, along with product
advertising, that has relatively little value. Accordingly, it makes some sense
to criticise the courts if they appear to be overly protective of this kind of
speech. Father Brennan, for one, is dissatisfied with the outcome in
Reno v. American Civil Liberties Union,37 in which the
American Civil Liberties Union challenged two offences under the Communications Decency Act. One of these
made the knowing transmission of "indecent" material to someone under
the age of 18 a federal offence. The other made it an offence to provide
communications on "interactive computer services" to minors where the
communications depicted or described sexual or excretory activities or organs
in "patently offensive" terms. In the event, these sweeping, vague,
and prudish offences were declared unconstitutional.
As Father Brennan concedes, users would have no
way of being sure who might be receiving their communications in, for example,
chat rooms: "If users were to be assured that they were complying with the
law, they would have to restrict their speech on the net to discussions
suitable for children" (Brennan 1998: 136). Yet, he later comments that
such cases show that the courts are "well behind the play" when it
comes to dealing the use of modern technology and legislative restrictions on
speech that "may be harmful to children"; he then adds
"Australians would be foolish to expect that our courts would be any
better equipped than the parliament to set appropriate ad hoc standards as the
new technology develops" (Brennan 1998: 143). All this, however, is the
wrong conclusion to draw from the
Indeed, the opposite conclusion would be more
justifiable: this was a case where the US Supreme Court acted astutely. It
rightly struck down a manifestly draconian restriction on free speech that the
Congress had seen fit to enact. If anything, the case stands as evidence
(admittedly, just one data point) that the courts can sometimes protect free
speech when legislatures are willing to treat it with contempt in their rush
to be seen to be doing something about the latest moral panic.
Perhaps Father Brennan's surprising response to
this case stems from an unwillingness to find value in speech that could be
labelled "indecent"38 or as
depicting sexual/excretory functions or organs offensively. Of course, the word
"indecent" and its cognates can have a very broad application and
could cover a wide range of robust communications that might have considerable
value and would fall far short of hardcore pornography. Again, what might be
"offensive", even "patently offensive" is very vague.
Offensive images cover a broad range, from images that are merely annoying or
unwelcome (though presumably not to everybody), to high-impact images that many
or most people would find physically nauseating.
At an extreme, some offensive material can
produce reactions that are inseparable from physical harm. Whether this should
be regulated on the Internet might be debatable. If, however, the existence of
such material and its unwilling reception by users who are not deliberately
searching for it ever becomes a significant problem, then a liberal society
should approach the problem in the least restrictive way it can. This would not involve the imposition of sweeping
criminal laws to prohibit a vast range of robust, but possibly valuable,
speech.
Throughout his discussion of the
While more needs to be known, I suggest the
following as a first approximation. The kinds of speech and expression that are
likely to produce distress, or even psychological trauma, if shown to young
children, might include depictions of cruelty to animals, depictions of
sympathetic human or animal characters being killed, and supernatural threats
(such as threats of hellfire or divine vengeance). Obviously, it would
difficult to frame legislation that is directed at protecting children from
exposure to this sort of material, though classification codes that offer
advice to parents, rather than attempting to ban speech and expression
outright, may be of some value in this respect. Furthermore, it is not obvious
that using an age such as 18 would be appropriate if the idea is to protect
young children from distress or psychological trauma: i.e., it is not at all
clear that any particular material is likely to have such an impact on, say,
teenagers, any more than on adults. All in all, it borders on absurdity to
think that the law impugned in
What counts as "harm" to children
outside the area of distress or psychological trauma might also depend on the
beliefs and values of the person alleging the harm. A conventional moralist
driven by Augustinian ideas that the body and its functions are shameful might
find something "harmful" in any exposure of children to nudity so
think of all the "harm" suffered by children whose parents belong to
nudist colonies or frequent
By contrast, somebody with very different
beliefs and values might consider it more harmful to expose young children to
traditional religious ideas. It may be that ideas of gods, devils, spirits, and
so on possess a psychological attraction for human beings
that is out of proportion to the actual evidence that any such things
exist (perhaps because we have evolved with a tendency to over-attribute agency
or purpose to the phenomena around us). Children may be especially prone to
absorbing such ideas even though they are neither well-evidenced nor actually
true especially if they appear to be supported by parents or other adult
authority figures. As a result, many children may grow to adulthood with false
and possibly overly-restrictive worldviews that they cannot easily shed. Doctrines taught to
individuals as children can become foundational for them or Bayesian
"priors". Hence, even if there is no evidence for the truth of these
doctrines, by our usual standards of evidence for other things, it can become
almost impossible to shift people from them or for them to free themselves. So
why not ban all images or discussions of gods, devils, and so on, if young
children might be exposed to them?
Such a question merits the answer that no
liberal society can be expected to adopt a policy of officially deeming the
exposure of young children to religious ideas to be harmful. Any attempt to
adopt this as a policy would fly in the face of traditional ideas of freedom of
religion, which have included the freedom of adults to bring up their children
within the sect of their choice. Yet the argument that this actually is harmful appears to be far more cogent
than the argument that children are harmed merely from exposure to, say, images
of naked human beings, or to much of the wide range of
material that can be described as "indecent".
I suggest that, if the state seriously wished to
protect children from harm that results merely from being exposed to certain
kinds of communications, rather than responding to ill-informed moral panic
about the Internet, it would need to conduct extensive psychological and
sociological research. Even then, it would have a great deal of difficulty
determining an objective standard of "harm" and if it somehow
succeeded, the product of its investigations might well be surprising. Against
this background, the US government totally failed to justify the broad laws
that were invalidated by the Supreme Court in Reno, and the wisest response to the Reno case would be to observe that it was one in which the court
performed its constitutional task admirably.
In all the circumstances that I've referred to,
concerns about harms to children merely from exposure to certain images or
ideas justify only a relatively minor role for the state. It may have a
significant paternalistic role in protecting children from advertising for
dangerous products such as cigarettes. Beyond that, it can establish systems
that give assistance to parents in making decisions about what material they
should allow their young children to watch, read, or access on television and
the Internet, but it is questionable how much genuine good the government and
its agencies can really do where the Internet is concerned. There is no
substitute for parental supervision, and concerns about Internet nasties should
not be used as an excuse for sweeping censorship of communications between
adults. Cool consideration of these issues strengthens, rather than weakens, the
case for constitutional protection of freedom of speech.
Unfortunately, overseas courts have not always
been so astute about protecting the rights and freedoms of citizens as the US
Supreme Court was in
All nine judges upheld the constitutionality of
the provision, even though its restriction of free speech was held to
contravene the relevant guarantee in the Canadian Charter of Rights and
Freedoms. Its constitutionality was saved by the charter provision allowing
legislatures to impose "reasonable limits" on charter rights where
these limits are "demonstrably justified in a free and democratic
society." Nonetheless, the defendant's appeal against conviction on a
large number of counts was granted, and a relatively narrow construction was
placed on the concept of "undue exploitation of sex". The case was
returned to the
The main judgment, that of seven of the court's nine judges, was read by Justice Sopinka. To simplify
somewhat, this judgment concluded that "undue exploitation of sex"
involved the portrayal of sex in a violent, dehumanising, or degrading manner
though child pornography also fell within the concept. Where violent, etc.,
portrayal of sex was contextually justified by its placement within a larger
narrative or work of art, there would be no "undue exploitation of
sex", and in cases of doubt the courts would favour freedom of expression.
Generally, portrayals of non-violent, consensual sex would not fall within the
concept of undue exploitation of sex. Once the court defined "undue
exploitation of sex" in this relatively narrow way, it was able to find
the provision constitutional when judged against the Canadian Charter of Rights
and Freedoms. It is likely that a more restrictive anti-obscenity or
anti-pornography law would have failed the test. Moreover, although this was
not an issue in the case, mere portrayals of nudity, with no explicit sexual
context, would seemingly not be caught within the definition, and it seems
unlikely that this sort of material could be banned in Canada.
I duly acknowledge that this judgment contained
a considerable element of wisdom, in that the implication seems to be that only
quite extreme portrayals of sex portrayals that many liberal-minded people
would find offensive and disturbing can be banned in Canada. If a line had to
be drawn based on so vague an expression as "undue exploitation of
sex", then the court chose as defensible a line as any. It is worth
emphasising that a constitutional line such as the one drawn by the Supreme
Court would be an improvement on the constitutional situation in
Nonetheless, it is important to note that this
case did not involve the regulation of offensive and disturbing material, such
as by giving it an R-rating, or by banning it from certain media or from being
broadcast at certain times. Rather, material falling into the category "undue
exploitation of sex" was banned outright. Nor was the ban confined to any
narrower category, such as child pornography, where the ban might be incidental
to protecting immature or unwilling victims from involvement in sexual acts.
What justification could there be for a total ban of material that remained
quite vaguely described even after the court's discussion? Bear in mind that
the defendant owned a shop that marketed films, sex toys, and other merchandise
to adults, and provided a warning that it contained sexually explicit content.
In those circumstances, it was unlikely that anyone would have been subjected
to viewing disturbing material against her will. The legislation could have
been drafted more narrowly to avoid a shop owner breaching the law in such a
situation. I submit that the statutory provision was overly broad and should
have been struck down in the form that it took. Such a broadly-worded law was
demonstrably not "demonstrably justified", although some narrower
form of regulation, aimed at similar material might have been, as might a law
aimed solely at banning child pornography.
In finding that the law was "demonstrably
justified", the court argued that its purpose was to avoid harm. The
alleged harm arose from the effects that such material could have on viewers'
beliefs and attitudes. More specifically, it was argued by the court that such
material could be harmful to women (whether or not they ever saw it), and to
Canadian society as a whole, if it had a tendency to influence men in certain
ways. The court stated that such material could influence a viewer to an
attitude of greater acceptance of degradation, humiliation,
victimisation, and violence in human relationships. Men who had been influenced
in that way might then act accordingly, showing a greater propensity to treat
women as unequal and to engage in violent
behaviour.
This, however, is an unsatisfactory
rationale for banning any speech or expression. First, it amounts to banning
speech because of the content of its message, a dangerous power to entrust to
any government, and one that should be accepted only in the most compelling of
circumstances. Consider the fact that many false and potentially destructive
messages are conveyed in all societies, but are seldom banned in those
societies that purport to be liberal. For example, no legal provision stops
parents conveying to their children the message that homosexuality is a sin,
even though this undoubtedly has the effect that many children reach adulthood
with deep-seated feelings of aversion and hostility to homosexuals. Again, no
legal provision stops fundamentalist religions of all stripes from spreading
the view that men and women have different "natural" places and
vocations ordained by God or determined by a transcendent metaphysical
principle and that the proper place for a woman is in the home as a wife and
mother. This is a destructive message to impart to either children or adults,
female as well as male, but it is lawful to impart it, whether in private or by
such very public means as televangelism. Liberal societies tolerate an
extraordinarily wide range of messages, even those that are themselves opposed
to liberal values.
Second, the harm is indirect. On
the theory advanced by the court, harm arises via a change in the attitude of a
viewer of the pornographic material, who might
then, depending on prior predispositions and other factors in his environment,
come to act in anti-social ways. This indirectness is, of course, typical of
harms that are supposed to arise from speech and expression. However, the
Millian harm principle is, for good reason, aimed at direct harms. In principle, the influence of speech and expression
is only one of many inputs into how people act, and there are always other
influences that can be brought to be bear by either individuals or the state.
Generally speaking, the best response to bad speech is better speech. Thus, a
liberal society leans against using the most intrusive means, such as outright
criminalisation, to counteract merely indirect harms from the various messages
that it tolerates.
That said, indirectness should not
be made a fetish. As I pointed out earlier in this submission, the real issue
may not be so much whether a harm is, strictly speaking, direct as whether there
is an urgent risk of harm or something like a clear and present danger. Recall
that even Mill thought it permissible to punish words that were likely to
arouse a mob to immediate violence, such as demagogue's claim, to an angry mob
outside a corn dealer's house, that corn dealers are starvers of the poor (Mill,
1974: 119).
However, there was nothing like this in R v.
Accordingly, the Canadian Supreme Court's
interpretation of the relevant statute was defensible, but the statute was
still too broad, even interpreted in such a way. It should have been struck
down, and the legislature should have been required to produce regulation more
narrowly drafted to deal with such evils as child pornography or the possible
infliction of high-impact, disturbing images on unwilling viewers. For all
that, I repeat the observation that it would be an improvement on the
constitutional situation in
As I write this submission,
In closing this section of my submission, I
return to the fact that difficult and possibly borderline cases often reach the
heights of any legal system. Such cases may be time-consuming to resolve, and
the outcomes may sometimes be debatable. In some cases, there may be
considerable division of opinion on a court with nine or seven judges. But none
of this entails that constitutional protection of free speech is a waste of
resources. On the contrary, it may have great benefits that are not obvious to
observers. Hence, with all respect, it is not good enough for an opponent of
constitutional protection of freedom of speech and expression to describe the
complexities involved in North American constitutional litigation over
commercial speech, then observe, dismissively:
"Our judges have better things to do with their time" (Brennan 1998:
145). While those cases that reach the highest courts undoubtedly consume time
and other valuable resources, the overall tendency is to deter state intrusion
into free speech, and to ensure that the most egregious proposals are not even
pursued within the political process.
Where this happens, it is a valuable outcome.
I
wish to discuss freedom of religion (or as I prefer to call it, freedom of belief,
conscience, and worship) somewhat more briefly, and I do not propose to discuss
in detail each of the freedoms that should ideally be included in a Bill of
Rights. This particular freedom is worth special mention and analysis, however,
because it so often causes confusion, including in development of international
law.
Freedom
of religion, which can be expanded to freedom of belief, conscience, and
worship, is often misunderstood. The freedom to believe in a body of religious
doctrine is no more than a negative right against the state admittedly a very important one. It
is a guarantee that the state's coercive power will no longer be used, as it
once was, to suppress or impose religious beliefs. This negative right against
the state is fully compatible with other such negative rights, including
freedom of speech. Contrary to what is sometimes asserted,
freedom of religion is not a positive right against the world.
Imagine
that
The
freedom involves two fairly simple things:
(1) The state
will not attempt to impose religion, including religious doctrines, ceremonies
or other practices of worship, or religious moral teachings, on those who do
not accept the religion concerned; and
(2) The state
will not attempt to suppress any religion, including its doctrines, practices,
etc.
These two limbs correspond roughly to the two
"freedom of religion" clauses contained in the First Amendment to the
US Constitution, commonly known as the Establishment Clause and the Free Exercise
Clause. However, I have added explanatory detail to make clear that what is
envisaged is a thoroughgoing separation of religious doctrine from state power:
neither is to affect the other. Religion cannot demand that the state impose it
on the unwilling (because the state is forbidden from doing any such thing);
and the state cannot make laws to suppress religious doctrines that it
dislikes.
The combination of the two limbs entails that a
citizen need not fear that the state will suppress the doctrines to which she
subscribes or the practices that they require. In any event, it cannot do so by
direct and deliberate actions. Moreover, the citizen need not fear that
doctrines and practices that are foreign to her those she does not subscribe to will be imposed on
her by the might of the state. In the latter case, it makes no difference
whether she rejects the doctrines and practices because: (a) she prefers the
inconsistent doctrines and practices of her own religion; or (b) she rejects all religious doctrines and has no
convictions of her own that could be described accurately as
"religious".
Indeed, if she is to have full reassurance that
she is safe from state interference with her convictions about deep matters,
she needs to know that limb (2) will be interpreted broadly so that the state
will not attempt to suppress her convictions even if they are not those of any
identifiable religion. Freedom of belief
and conscience goes beyond freedom of merely religious belief; the ordinary
meanings of these words suggest that the state will refrain from suppressing
any honest convictions on deep matters, regardless whether they are taken from
religious teachings (or whether they are connected with any religion or any
identifiable system of thought that has religion-like characteristics).
As discussed, this two-limbed doctrine provides
an important area of freedom for individuals. But it also provides a great
benefit to public policy. If the first limb is applied strictly, then there
will be no jockeying (or at least no successful jockeying) by different
religious (or similar) groups to gain access to the power of the state. This
eliminates a source of intractable division and conflict. In order to obtain a
peaceful political order, we relegate religion to an area of personal belief.
In developing public policy, the state is "religion blind" and relies
on purely secular principles such as the harm principle and the need to provide
an adequate economic safety net.
Note, however, that there are also limits to what is provided by the two
limbs of freedom of religion. There is no requirement that the adherents of one
religion, Zeusism for example, should cease to regard its own doctrines as
absolute Truth or should cease to regard the doctrines of other religions as pernicious.
Mardukites may, in turn, have a doctrine that Zeusism is a lie and deception
spread in the service of an evil spirit and they are perfectly free to think
this and express it, so long as they don't resort to violence or otherwise
break the general law. While a regime of non-persecution may "soften"
the attitudes of religious sects, as Locke hoped (1983: 52), there is no
requirement that they give up on criticising each other, or seeking converts,
or even teaching that rival sects are inspired by demonic powers. If it is a
Mardukite doctrine that Zeusists are demons, the state must allow that doctrine
to be believed and expressed.40
In short, freedom of belief, conscience, and
worship provides a strong protection against the power of the state to
persecute infidels and heretics, suppress doctrines, or impose its own view of
orthodoxy and true morality. At the same time, it leaves all concerned with
freedom to think what they like of each other. They retain the right to hold to
their own doctrines and their general freedom of speech, and expression. But
nothing about freedom of religion suggests that religious sects or their
adherents are always mutually admiring, or that they must become so.
In relation to (2), however, I must add this. Everyone
must obey the general law. Even religious organisations are bound by laws of
general effect that are enacted for legitimate secular reasons, rather than for
the purpose, or with a primary effect, of suppressing a religion. If such
"religion-blind" laws are otherwise justified (for example when
assessed against the harm principle), they are not illegitimate merely because
they have an incidental effect of hindering the practice of a religion's
ceremonies or morality.
John Locke would have had no difficulty with
this. To use Locke's own example, the state may not, in pursuit of its own
religious doctrine or its wish to suppress a religion, forbid the sacrifice of
calves.41 It
may, however, forbid the slaughter of all cattle if there is some independent
secular reason:
But if
peradventure such were the state of things, that the Interest of the
Commonwealth required all slaughter of Beasts should be forborn for some while,
in order to the increasing the stock of Cattel, that had been destroyed by some
extraordinary Murrain; Who sees not that the Magistrate, in such a case, may
forbid all his Subjects to kill any Calves for any use whatsoever? Only 'tis to
be observed, that in this case the Law is not made about a Religious, but a
Political matter: nor is the Sacrifice, but the Slaughter of Calves thereby
prohibited. (Locke 1983: 42.)
Here
it is worth noting that Locke may not have been completely consistent. He
evidently saw no difficulty in laws that banned certain (allegedly) immoral
conduct such as sexual promiscuity (1983: 41-42), though he did not supporting
banning whatever might be described by religion as a sin (43-44). He didn't
inquire as to whether the imputation of immorality might itself have been based
on contestable religious doctrines. Perhaps, however, he thought that rules
relating to sexual morality were necessary for social survival (which may have
been more plausible in his time than today).
In any event, the range of laws that are likely to have unwanted incidental effects on the practice of a religion will be relatively small, provided the state is rigorous about applying the Millian harm principle. Without invoking anything as strong as the harm principle, Locke made a similar point: "if Government be faithfully administered, and the Counsel of the Magistrate be indeed directed to the publick Good, this will seldom happen" (1983: 48).
Unfortunately, this analysis is often not accepted by religious organisations,
which misinterpret the idea of freedom of religion to include a special right
for religion to be free of legitimate, religion-blind general laws that apply
to everyone else. This can be observed in the furore that followed a leading
American case, Employment Div., Ore.
Dept. of Human Res. v. Smith,42 in
which the Supreme Court adopted the same view as Locke, in holding that it was
not lawful for the banned drug peyote to be used in Native American religious
ceremonies. I submit that the case was correctly decided in principle. What has
not been noticed in the ensuing debate was that the law was a bad one, not
because it violated the concept of religious freedom but because it violated
the Millian harm principle. If the law concerned had banned a harmful practice, such as murder, it
would be obvious that no religious organisation had grounds for complaint
(freedom of religion would not give a neo-Aztec cult permission to engage in
the practice of human sacrifice).
Thus, the state may prevent an activity such as
human sacrifice by enforcing religion-blind laws that forbid murder. Such a law might then have the
incidental effect of impairing the exercise of say, a neo-Aztec cult. But no
one can complain: if the Act has a good, secular, religion-blind justification,
then the state can require that religious devotees conform with
it, along with everyone else. If, in
addition to enforcing the general law against murder the state wishes to
suppress the cult itself, it will need to provide some additional and
compelling justification.
Reflection
on these issues suggests that there are popular tendencies to make this freedom
include both too much and not enough. The tendency
to make it include not enough comes from the widespread sentiment that only
tolerant, touch-feely beliefs should be given freedom. In response, I submit
that, absent some compelling justification, we should be free to believe
whatever we want, not just whatever "nice" ideas we want. This
dovetails with freedom of expression we should be free to express our
beliefs, not just nice beliefs.
At the same time, there is a tendency to make the freedom too wide. It
legitimately entails that Helena, for example, can believe whatever she wants,
express it, conduct associated rituals, and so on, and there should (prima
facie) be no limit to what beliefs, doctrines, organisations, rituals and so on
are protected. But she does not have a get-out-of-jail-free card if she breaks
secular laws that have general application. For example, if the objects used in
her rituals attract GST, she must pay it when she purchases her paraphernalia
in the marketplace just like anyone else buying the same items. If her sect's
rituals involve human sacrifice, she had best lead a reform movement to modify
them, because no one's religion exempts her from the ordinary law applying to
murder.
Finally, nothing that has been said in this
section takes away the fact that it might occasionally be wise policy to offer
religious adherents some accommodation even with respect to legitimate,
religion-blind laws of general application. For example, it might be good
policy to allow Catholic doctors some statutory rights not to carry out
abortions even in circumstances where this is normally required by law for the
sake of the health and welfare of patients. But they cannot expect to exercise
such rights in emergency situations, or to be able to subvert the purpose of
the law by refusing to refer vulnerable patients to other doctors who don't
have the same scruples.
The idea here is that the legislature should
adopt a practice of seeking some reasonable flexibility in the laws, in order to accommodate
people who might be seriously disadvantaged for any reason, religious
or otherwise. The numerous laws operating in a modern society are often enacted
in such a form that it does not really matter if everyone complies strictly,
provided the exceptions are clear. The state should exercise some discretion to
accommodate sincere and otherwise law-abiding people who would be seriously and
adversely affected by a demand for strict, and strictly consistent, compliance.
But it must be understood that accommodation does not mean having everything
your own way or being able to subvert the fundamental purpose of a law that you
disagree with.
Part of the problem is that there are so
many laws around that cannot be justified at all these look particularly
harsh when they cause problems for sincere and well-meaning people with
religious beliefs, as happened in Employment
Div., Ore. Dept. of Human Res. v. Smith.
Yes, of course the law should not have prevented Native
Americans from ingesting peyote in religious ceremonies. But the solution is
not to extend the meaning of the political principle of freedom of religion; it
is that the state should cease enacting and enforcing laws that lack a clear
and legitimate justification in the first place. In the criminal sphere,
legislatures should cease creating prohibitions that cannot be justified
against the harm principle (and some cautious, principled extensions of it, as
discussed in Section 3). Note that all of these principles freedom of belief,
conscience, and worship; freedom of speech and expression; and the harm
principle are consistent with each other, and indeed dovetail neatly. But
that is on the assumption that we (a) give them all full effect, while (b) not
making any of them do work outside what they actually cover.
In
introducing the idea of a liberal society, I commented that such a society is unwilling to
punish individuals' freely-chosen actions in the absence of harms to others,
and it is especially keen to protect the choices of competent individuals where
they fall within a broadly-defined sphere of personal freedom. I see this as
including freedom of speech and expression, freedom of belief, conscience, and
worship, and freedom of association. When political freedoms such as the right
of peaceful assembly are added, together with rights that protect the
individual from arbitrary or unjustified punishment or loss of liberty, there
is the basis for a finite set of guarantees that could form relatively
uncontroversial matter for a Bill of Rights.
However,
I favour a far broader sphere of personal freedom or autonomy than could easily
be defined in an instrument such as a Bill of Rights.
Something
like this has situation has been reached in the US, as evidenced by the Supreme
Court's approach in Lawrence v. Texas.43 In that case, the Supreme Court struck down an
anti-sodomy law under which two gay men were convicted after being caught
having sex. The majority of the judges clearly affirmed a principle that
"Liberty presumes an autonomy of self that includes freedom of thought,
belief, expression, and certain intimate conduct".44 This was elaborated to cover
much private and consensual sexual conduct between adults, as well as much in
the way of family formation and child-rearing.
In my
view, such a conception of individual liberty is entirely laudable as a
principle to guide public policy. Governments should avoid undue interference
with such intensely personal matters as those described by the
No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the
I do
not favour the incorporation of similar words to these in legal instruments in
On
its face, the words referring to "due process of law", the so-called
"Due Process Clause", seem to provide protection against arbitrary
punishment by state governments. Their obvious meaning is that the American
states cannot impose such treatment as execution, incarceration, enslavement,
and fines (whether these are supposed to be criminal or civil in nature)
without first giving the person the benefit of "due process of law".
Interpreted in this way, a constitutional clause could provide significant
protection of individual liberty. For example, it would be sufficient to
prevent the prosecution of individuals before non-judicial administrative
tribunals controlled by the executive government, or to stop the imposition of
rules of evidence that would make it impossible for the accused person to show
that one of the elements of a criminal or civil offence was not established.
Due process in this sense is not a narrow concept: all of this would confer
considerable rights on individuals to resist unfair trials and to challenge
laws that might create even a danger of unfairness. It is possible that much of
this is already achieved in Australia at the federal level simply by the way
the Australian Constitution separates the exercise of the judicial power of the
Commonwealth from the legislative and executive powers, an issue that I will
return to in a later section of this submission.
Five
of the nine judges in Lawrence joined in a single opinion based on the Due
Process clause, while Justice O'Connor reached the same result on the basis of
the Equal Protection clause the words in the Fourteenth Amendment requiring
that no state deprive any person of the equal protection of the law. Justice
Scalia delivered a scathing dissenting opinion, joined by Chief Justice
Rehnquist and Justice Thomas, though the latter also delivered a brief
supplementary opinion, in which he enunciated his view that the challenged
Texas provision was a bad law, although not unconstitutional.
Unfortunately,
the approach taken by the
Under
substantive due process, state laws that impinge on liberty rights are eligible
for scrutiny by the courts. Such laws are considered to be actions by the state
legislatures to deprive individuals of their liberty, which cannot be done
without "due process of law". That, in turn, requires that the states
provide adequate justification of whatever legislative provision is under
review, i.e. a sufficiently substantial or (if the liberty right is considered
"fundamental") compelling state interest to justify the provision. It
follows that the American courts can review and strike down almost any state
law at all, particularly if it criminalises individual conduct. That does not
mean that the courts exercise their authority in an unstructured, capricious,
or unconscientious way. A body of jurisprudence has grown up to give some
guidance as to what laws will be held to intrude seriously on
"liberty", and what kinds of justification are acceptable.
Nonetheless, the words of the Due Process Clause have been extended far beyond
their evident meaning or at least their evident meaning if an Australian
lawyer encountered them for the first time.
Similarly,
the approach taken by Justice O'Connor, who relied upon the Equal Protection
Clause, is open to serious doubt. With all due respect to Her Honour, it is
difficult to see how the actual words in the Fourteenth Amendment support her
approach. In particular, she rejected a strong argument to the effect that the
While it is
true that the law applies only to conduct, the conduct targeted by this law is
conduct that is closely correlated with being homosexual. Under such
circumstances,
This
has some obvious force, but in the end I do not find it compelling. It is true
that the
The
provision was undoubtedly oppressive, but the oppression consisted in the fact
that it placed a burden on anyone with a homosexual orientation i.e. anyone
with a psychological propensity (perhaps experienced as a need) to engage in
homosexual acts. Someone with that propensity is clearly disadvantaged by laws
that prohibit such acts. But it might also be said that a person with a
psychological propensity to commit violent or dishonest acts is disadvantaged
by laws that forbid various kinds of force or fraud. Every criminal law place
burdens on those with a psychological propensity to conduct themselves
in the manner proscribed and punished. The fact remains that the impugned law
punishes individuals for their actions, not for their propensities per se. If
Justice O'Connor's reasoning is taken to its logical conclusion, laws against
murder and assault would be in breach of the Equal Protection Clause because
they disadvantage people with a propensity for violence. Laws against theft or
fraud would be in breach because they disadvantage people with a propensity for
dishonesty. And so on.
At
this point, of course, I can imagine the anger of many advocates of gay rights,
should they read the preceding paragraph. Let me state immediately that I am
one of them. I sympathise with their anger at any comparison between a
disposition toward violence or dishonesty, on the one hand, and a person's
sexual orientation. The comparison is, indeed, offensive. Consenting homosexual
acts involving sufficiently mature people are essentially victimless and
harmless, and homosexuals do not deserve prosecution for such
"crimes". Here is a good case for applying the Millian harm
principle. If anything, homosexuals should be given special protection from the
discrimination and ill-treatment that they are still frequently forced to
endure even in Western societies. But for all that, it is difficult to find
such a sentiment in the words of the Equal Protection Clause.
If a
legislature is sufficiently misguided to believe it appropriate to prohibit
consensual homosexual acts involving competent adults or sufficiently mature
minors, the question remains: How, exactly, does this act of bigotry deny
people of homosexual orientation the protection of any law? Homosexuals could
avoid prosecution by not acting on their sexual impulses. It is, of course, not
a matter of "just" or "simply" not acting on those impulses
there is nothing simple about it. In my view, such a law would be illiberal,
unprincipled, and profoundly unjust. Yet, I do not see how it would violate a
provision that, as I read the words on the page, merely requires legislatures
to apply the same substantive and procedural laws to everybody. Accordingly,
Justice O'Connor's reasoning, like that of the majority, rests on
intellectually dubious foundations.
However,
that is not the last word that should be said. Despite all these criticisms and
misgivings, I believe that Lawrence v.
Texas was correctly decided in the circumstances; it was correctly decided
in the sense that it conforms with the developing and
well-established doctrine of substantive due process over more than a century.
It is far too late for the American courts to revert to a relatively narrow and
literal approach to the interpretation of constitutional provisions
such as the Fourteenth Amendment.
But
should a similar approach be taken in
My
concern about this is reinforced by my perception that the sphere of personal
freedom includes the freedom to decide when our own lives are to end.
However,
this freedom is not one that can operate without regulation, and reasonable
people may disagree about what regulation is necessary. If successfully
implemented, the decision to die is not only momentous but irrevocable. The
ramifications are so great that this is one area where most of us would accept
a paternalistic role for the state after all, many people who make the
decision to kill themselves do so at times when their ability to think clearly
about the future, and to imagine a good future for themselves, is diminished by
extreme grief or similar emotions (though I make this as an empirical claim,
not the conceptual claim that anyone who chooses to die "must"
therefore be suffering from diminished rationality). While we are healthy, we
probably welcome the fact that attempts will be made to give us medical
treatment should we ever attempt suicide; this is a rare case where state
paternalism does not appear offensive.
Clearly,
however, there are many cases where state paternalism is less acceptable.
Somebody enduring terminal illness, with no real prospect of recovery and no
prospect of any high-quality life before the end comes,
is simply being realistic if she cannot imagine a good future for herself. For
such a person, life may be a burden rather than a blessing, something to be
endured day by day indeed, to call it a burden is to understate the facts.
For such a person, every moment of consciousness may be horrible because of
pain, humiliation, loss of functioning, and loss of any reasonable hopes for
the future. It is simply cruel to require that she go on living under such
conditions. To make matters worse, many such people no longer have the capacity
to end their own lives; simple human compassion demands that they have access
to assistance.
Notoriously,
this analysis encounters difficulties in public policy, since any form of
euthanasia is likely to be criticised for allowing abuses, or for leading to a
slippery slope. Indeed, it is possible to approve of some acts of euthanasia,
viewed in isolation, while believing it undesirable to legalise euthanasia,
perhaps out of a fear that it would lead to "Hitlerian elimination of the
unfit" (Hursthouse 1987: 13). Thus, active euthanasia is almost a paradigm
example of an action that may be morally justified but, at least arguably,
cannot be permitted by the law. This is the converse of the more usual
situation where the law permits many actions that are open to moral criticism.
Slippery
slope arguments such as those mentioned by Hursthouse can sometimes be strong,
and it is an exaggeration to think of them as a form of logical fallacy.
Nonetheless, they seldom withstand much scrutiny.
Where
the argument postulates a horrible result at the end of the slope, it must not
only describe a result that is uncontroversially horrible but also a mechanism
by which the first step on the slope will actually take us there. The slippery
slope argument relating to euthanasia is especially weak, since it postulates
no mechanism by which a society such as
Where
atrocious human rights abuses have occurred, as in Nazi Germany, far more has
been involved than the absence of a total taboo against all forms of killing.
The "far more" includes ideologically-based, ruthless
totalitarianism; an "organic" theory of the social group; anxiety
about the "health" of the social organism; and the availability of
groups that can be scapegoated as "other" (Burgess 1993: 171-72).
A
more realistic concern is the possibility of abuse. In a detailed discussion of
abuses that might occur with euthanasia, Battin (1994) identifies three
categories that could be of concern. Of these, "interpersonal abuse"
refers to pressure to choose death that could be placed on patients by family
members (or other people who are emotionally close to them). "Professional
abuse" refers to coercion or manipulation by doctors (or perhaps other
health-care professionals). "Institutional abuse" refers to measures
taken by hospitals and other institutional parties (such as insurers, or perhaps
governments) to reduce options in a way that effectively channels the decisions
of some patients.
Interpersonal
abuse might have a variety of motivations, from a history of conflict or
malice, through simple greed if a family member might benefit from the
patient's death, to the family members' emotional exhaustion or misplaced
paternalism. The pressure placed on the patient might vary from simply raising
the issue, to imploring the patient to recognise it is "time to go",
or applying various forms of emotional blackmail. Again, there could be a
variety of motivations for professional abuse, including a greedy unwillingness
to spend time on non-remunerative patients, frustration at treating a patient
who cannot be cured, or (once again) misplaced paternalism. Because of their
professional authority, doctors are perhaps better placed than family members
to manipulate patients into choosing to die. Institutional abuse is likely to
be motivated by financial considerations, given the insufficiency of resources
needed to cover society's full range of medical demands. Cost-cutting measures
made possible by the availability of euthanasia might channel some patients
into choosing death because they lack a good alternative.
None
of the motives that might lead to abuse can be dismissed as completely
implausible, but widespread professional and institutional abuse would be
contrary to the existing culture of medical care in
Interpersonal
abuse might be more frequent, given the wide variety of relationships and
emotions within families. This may be a reason to resist legalisation of any
form of voluntary active euthanasia. However, I believe that such a conclusion
can be avoided, since it is possible to introduce procedures to mitigate any
undue emotional impact when terminally ill patients consult with their
families. Family members' views could be moderated by other influences, such as
advice from professional counsellors. The intention of this should not be to
dissuade the patient from choosing death, but to help ensure that any decision
to do so is not a response to emotional pressure.
In
reply to this reasoning, it might be suggested that any adequately protective
procedures would be ineffective because they would become burdensome in their
resource demands and/or the complexity of their mandatory steps. Thus, they
could frustrate genuine patient decisions to choose death, increase suffering,
and lead to unintentional breaches through misinterpretation, ambiguity or
administrative error. If this is so, it might be argued, we might be better off
not legalising any form of euthanasia: the choice is between a system that will
be abused and one that will be ineffective.
Although
this argument has some force, it is unnecessarily pessimistic. It should be
possible to design procedures that are workable, yet minimise the possibility
of interpersonal abuse. One way to make this more likely is to avoid a
situation where strict compliance with detailed procedures is necessary for a
defence to criminal charges. A defence of "mercy killing" might be
developed in quite broad terms, sufficient to cover cases that do not fall
neatly within any detailed procedures. At the same time, formal procedures to
be used by hospitals could be developed in sufficient detail to minimise
abuses. Public policy should then aim at integrating those procedures with
other systems designed to control the quality of medical care, such as
hospitals' reporting requirements and the general requirements of medical
ethics.
There
is much more to say about this issue, and I am conscious that Father Brennan
has discussed it at some length in his book Legislating
Liberty, in which he has raised a number of provocative arguments against
euthanasia (Brennan 1998: 95-123). While those arguments do not persuade me, a
full answer to them would take me far afield. The important point for present
purposes and here I imagine that Father Brennan would agree is that any
legislative provision for active euthanasia would need to include significant and
probably complex regulation aimed at minimising abuses. Reasonable minds could
differ on the best content for such regulation, and the issue is not one that
is apt for constitutional adjudication. Furthermore, the right claimed by
patients in the terrible situations under discussion here is not simply a
liberty to act without liability for punishment by the state; rather, it is a
claim for resources and assistance. In my view, that is not an appropriate
right to include in an instrument such as a Bill of Rights.
The
position that I have taken in the past is that a Bill of Rights should protect
some specific, fairly narrowly defined freedoms, notably those relating to
expression and belief, subject to a "let-out" clause similar to that
in the Canadian Charter of Rights and Freedoms. However, the broad, almost
indefinable, sphere of personal freedom referred to by the
This
conclusion may be correct, but perhaps there are some institutional steps that
can be taken, though falling short of constitutional protection. If an agency
can be established with sufficient authority to criticise legislation and be
listened to without being empowered to strike laws down as inconsistent with
an entrenched constitutional protection of rights and freedoms, then it is not
necessary that its terms of reference be as clear as a legally-workable
provision in a Bill of Rights. Accordingly, I recommend that the new agency I
propose, the Independent Commission for Rights and Freedoms, be given
responsibilities that extend as far as examining whether existing and new laws
unnecessarily encroach upon the sphere of personal freedom. Although this
sphere is somewhat vague, it is sufficiently well-defined for an agency with
appropriate expertise to carry out such a non-judicial task.
In
this section, I will consider what needs to be done to protect Australian
citizens and residents, as well as people visiting or arriving in
First,
it is possible to exaggerate the importance of procedural due process. Our
freedoms are more enhanced by substantive changes in the law than by mere procedural
protections. For example, it is more important to enlarge the area of freedom
enjoyed by Australians by legalising the use of marijuana and other
recreational drugs than to create procedural protections that make it more
difficult to obtain convictions for drug use. Legalising a range of drugs, then
regulating them appropriately, would almost certainly contribute not only to
freedom but also to harm reduction. Neither freedom nor harm reduction is
served well by the current highly-punitive approach. Nor is it an effective use
of valuable public resources, such as trained police officers. In general, we
should be focused on the substantive law rather than mere procedure.
Second,
we need to make sure that any new procedural protections do not create a
villains' charter, making it more difficult to protect the community from
people who, unlike marijuana users, pose a genuine danger.
As
discussed in the previous section, I do not favour the introduction into
Australian law of the American concept of substantive due process. It would
not, however, be difficult to draft a provision in a Bill of Rights or
elsewhere guaranteeing a judicial trial with procedural due process prior to
any punishment, detention, or loss of liberties. Such a clause could permit
necessary exceptions such as imprisonment pending trial for a serious crime.
This
approach would provide important rights. For example, it would prevent the
prosecution of individuals for alleged crimes before non-judicial
administrative tribunals that might be controlled or influenced by the
executive government. It would prevent the imposition of rules of evidence that
would make it impossible for an accused person to show that one of the elements
of an offence was not established. It would give individuals considerable
ability to resist unfair trials and to challenge laws that might create even a
danger of unfairness. For example, it would be possible to challenge a law that
handed the power to try criminal cases to an administrative tribunal. (Even if
such a tribunal had closely-regulated procedures, there would be a danger that
it would act with insufficient independence from the executive branch.)
Much
of this is already achieved in
If
this logic is applied consistently, the separation of judicial power at the
federal level gives protection not only to persons accused of federal criminal
or civil offences but also to persons sued in civil cases arising from
obligations under Commonwealth law. Indeed, the protection must extend to any
statutory provisions at federal level that provide remedies related, or closely
analogous, to remedies in tort. Otherwise, Australian citizens could have a
vast range of rights, analogous to those at stake in common law tort cases,
determined by non-judicial federal tribunals potentially operating under the
executive's influence.
This
reading of the effect of the separation of judicial power is not only logically
cogent; it is also consistent with the approach taken by the High Court in a
series of cases in the 1990s, particularly with the dicta offered by most of
the judges in Polyukhovic v. The
Commonwealth.48 In that case, a majority of judges declined
to strike down retrospective war crimes legislation as a breach of the
separation of powers, but they made clear that the separation of judicial power
could have significant effects in protecting citizens from, for example, bills
of attainder. In Brandy v. Human Rights
and Equal Opportunity Commission,49 the High Court held that
binding legal remedies in anti-discrimination cases could not be issued by the
Human Rights and Equal Opportunity Commission (now the Australian Human Rights
Commission), but only by a court exercising federal jurisdiction.
These
and other Australian cases suggest that Commonwealth laws may be struck down if
they deprive citizens of important procedural protections that come under the
umbrella of procedural due process. In Kable
v. Director of Public Prosecutions for New South Wales,50 the High Court went further,
by striking down a New South Wales statute empowering the Supreme Court of that
state to issue community detention orders. The statute was aimed at one
notorious individual and went close to being a bill of attainder, though it did
allow some independent role for the Supreme Court. The orders concerned were
divorced from any finding of guilt for an offence, though it is now clear this
alone would not have been sufficient to find that the statute was inconsistent
with the Australian Constitution. The essence of the case is the idea that
there are limits to what state governments can require of their own courts, if
those courts are also to remain fit repositories for the exercise of delegated
federal jurisdiction.
It is important to note that the High Court in Polyukhovic was not prepared to strike
down war crimes legislation merely because it was retrospective. I agree with
that outcome. Retrospective enactments, particularly those that
create new crimes, should be avoided as far as possible: it is clear that these
can have unfair outcomes for individuals whose actions were lawful at the time,
then declared unlawful after it was too late for this to guide these individuals'
behaviour. However, there can, at least in rare cases, be conflicting
considerations that must be taken seriously. The merit of citizens having a
relatively exact knowledge of what their potential liabilities are is outweighed by these when, for example, an
individual acts in ways that are technically lawful at the time but grossly in
breach of normal, and frequently-criminalised, standards for the treatment of
other human beings. Thus, it is justified to enact retrospective legislation
relating to war crimes or crimes against humanity even if no law applying in
the jurisdiction where the acts took place rendered them illegal at the time.
In such a case, an accused person should not have an unassailable right to
impugn a law merely because he undertook his action before it became
prohibited.
Furthermore, I am not opposed in principle to
laws that provide monitoring, preventive restrictions of individuals, or even
their preventive detention, if the individuals concerned are convincingly
assessed as sufficiently dangerous to the public. In such cases, the
restriction of liberty must be in proportion to the threat, and the procedures
adopted must be rigorous. However, such laws are justified in principle, since
they are in keeping with, and may sometimes be necessary for, the most
fundamental purpose of the state: the protection of citizens from internal and
external dangers to life, limb, and property. When such laws are enacted, it is
not a matter of the legislature forbidding acts that cause no substantial
direct harm, or of the legislature intruding in the private lives of citizens
for moralistic or paternalistic reasons. Rather, laws of this kind respond to
the public's legitimate fears that their safety and security might be
compromised if some individuals are left entirely at liberty.
Accordingly, I submit that two controversial
cases that were dealt with by the High Court in recent years were both
correctly decided both as a matter of law and as a matter of principle. The
first of these is Fardon v Attorney-General
(Qld).51 The other is Thomas v Mowbray.52
In Fardon, the appellant attempted to
impugn a
I
submit that Fardon was correctly
decided as a matter of law. The structured jurisdiction given to the Supreme
Court of Queensland should not have created any apprehension that, for example,
the court had come under the control of the executive government of Queensland
or that it had been transformed into a body that was likely to decide cases
based on broad discretion to do whatever was in the public interest (the kind
of discretion often exercised by industrial tribunals for example, though even
these tend to develop structured principles in the interest of consistency and
predictability).
I
submit, too, that a law such as that considered in Fardon should be acceptable in principle. Admittedly, there are
strong reasons for the state to carry out its core Hobbesian role of
protecting the community from violent individuals by punishing them for
actual crimes. Otherwise we could all find ourselves liable for detention for
acts that we just might commit in
future. I submit, however, that there is
no in-principle requirement that preventive detention must never be used.
Where
there are safeguards in place, including a requirement that the individual
concerned has already committed serious crimes, psychiatric reports suggesting
an unacceptable danger of repetition, and a rigorous process before a
traditional court, the need to protect the community against genuinely
dangerous individuals should prevail. Constitutional law should not be a
villains' charter. As long as such rigorous criteria and procedures are used,
we need not fear that such a case as Fardon
opens the way to arbitrary detention of citizens. After all, Kable is still good law. The combination
of these two cases gives an indication of where the line is to be drawn. As a
result, the public can be protected from some genuinely dangerous individuals
without having to fear arbitrary exercises of government power.
Thomas v Mowbray involved federal legislation
that provided for control orders affecting the liberties of individuals
believed to be dangerous to the community because of their connections with
terrorist activities. The power to make a control order ex parte, then confirm it or otherwise at an inter partes hearing, was assigned to the Federal
The
majority of the High Court judges rejected this, holding (in effect) that the
jurisdiction exercised was sufficiently structured by the criteria provided in
the legislation to be exercised judicially. In respect of that particular
argument, I submit that this was a borderline case: i.e., the legislation
provided relatively little guidance as to the criteria to be used by the
Magistrates Court and went dangerously close to allowing it to do what it
thought best in the public interest. On balance, however, I believe that the
case was correctly decided. More importantly, I support the concept that such a
power should be conferred on an appropriate body and that it is better that it
be conferred on an independent court employing a rigorous curial process than
that it be conferred on the executive or on a body such as an administrative
tribunal.
Once
again,
It is
sometimes argued that the judicial power to detain individuals or reduce their
liberties is exercisable only upon proof that the individual has committed a
crime. That is to say, it is (supposedly) an essential, or conceptual,
component of this aspect of judicial power that it operate
on a finding of facts about the past, and not on findings about the likely
future conduct of individuals. However, it is now clear that this is false as a
statement of Australian law, as determined by the High Court. But was the High
Court wrong in principle in deciding as it did? I submit that it was not. It
is, no doubt, true that the criminal justice system has protected the public in
the past essentially by enforcing laws that forbid certain conduct. The courts
have enforced these laws by making findings of fact about the past. But there
is no deep reason why the state's core role of protecting its citizens must
always operate in this way.
In contemporary circumstances, dangerous
offenders can be released back into the community after committing crimes that
would once have attracted the death penalty. I am not suggesting that the death
penalty should be reintroduced; however, I do point out that we are now
confronted with a new problem of what to do when an offender reaches the end of
his (the person will usually be male) sentence, and it is reasonably believed
that he is likely to commit very serious crimes, such as murder or rape, if
released into the community. I submit that it is quite appropriate to have a
scheme, with all due safeguards, to decide whether such a person should be
released. This is obviously a draconian power for the state to exercise, so it
is important that it be entrusted to independent courts, that the procedure be
as rigorous as possible, that there be ample appeal rights, and that any case
of preventive detention be the subject of frequent review.
Similarly, contemporary circumstances are
historically unique in that individuals can readily cause massive property
damage, suffering, and above all loss of human life, by engaging in private
terrorist actions. While this has been possible to some extent ever since the
invention of explosives, it is now far easier than ever. Moreover, liberal
democracies are currently confronted by enemies that more able and inclined to
use terrorist methods than to engage in conventional warfare. In those
circumstances, it would be foolish to identify individuals who are, prima
facie, willing and able to engage in terrorist acts, but then take no action to
restrain them waiting until they have committed such an act and then use the
criminal justice system to impose punishment. Such individuals are,
notoriously, unlikely to fear imprisonment or even death. Given the
circumstances that we actually face in the current moment, the state must adapt
the means it uses to protect its citizens. Once again, the ability to issue
control orders is a draconian power, and it is important that it be exercised
rigorously and independently, and with appropriate safeguards. This suggests
that the power should repose in a "proper" court rather than with an
administrative tribunal or the executive.
While the issue has not been fully tested in the
High Court, and dicta can be found that point in contrary directions, I submit
that the better reading of
Nonetheless, it is unfortunate that there is no
constitutionally-entrenched separation of judicial power at the level of state
government.
Although I have argued that Fardon and Thomas v. Mowbray
were correctly decided both in law and in the sense that the legislation considered
in these cases was in the public interest I am deeply concerned that efforts
by the state to protect citizens from terrorist acts will tempt it to introduce
draconian legislation that lacks adequate safeguards. Indeed, without embarking
on a detailed examination of current anti-terrorism laws, I submit that this is
plainly happening. We need to be alert to such abuses as the provision of
lengthy periods of detention for interrogation, restrictions on freedom to
discuss what happened during detention, and so on. These are significant
attacks on individual liberties. Worse, they harm the sorts of people who are
easy victims of populist politics in this case, people who may have beliefs
that are outside the traditional Australian mainstream as well as (perhaps)
suspicious links with foreign organisations. Our legal and institutional
arrangements must provide appropriate protections.
In arguing the case for an Australian Bill of
Rights, Williams makes much of the plight of David Hicks. I am not sure that I
agree with Williams' analysis in its entirety, as I am not sure what
constitutional provision could have assisted Hicks in the unusual circumstances
of his case. Nonetheless, there are lessons to be learned.
Hicks is an Australian
citizen who was held in detention for over five years by the
The action taken by the
Whether or not an Australian Bill of Rights could
have assisted Hicks while he was abandoned in
There can be no stronger case to underline this
point than the shameful and cruel regime of mandatory detention that
This shows how populist policymaking can go
horribly wrong. Although there is doubtless a need for some vetting of
undocumented immigrants in order to protect Australian people from the possible
motivations of individuals whose identities are unknown, it is all too easy to
show insensitivity to unauthorised arrivals who are, after all, also vulnerable
human beings.
What we see here need not be anything as strong
as conscious racism or even unconscious
racism if the idea of racism is understood in a strict sense (i.e., as a belief
that some "races" are inferior as a matter of genetics or
"blood"). It may not be correct, and may in any event be
counterproductive, to condemn mainstream
This lack of imagination is something that
should be resisted rather than pandered to (as governments find all too
tempting). Even an entrenched Bill of Rights could not require a unsympathetic government acting in response to the fears
of an unimaginative electorate to turn into a sympathetic one. However,
depending on its wording, it could at least require governments to justify
their most extreme actions, such as the detention of children. If a Bill of
Rights is beyond reach, other mechanisms must be found.
There is moral force in the idea
that liberal democracies, including
Politicians may be tempted to respond to the
public's fears and even encourage them in order to be seen to be acting
strongly, and thus enhance their prospects of electoral success. In the
situations that I have discussed in this submission, such as those of Henson,
Hicks, and asylum seekers arriving by boat, part of the problem is the
willingness of politicians to wield power in ways that have harsh outcomes for
more marginalised people (even those who are economically privileged, like
Henson) in
order to ingratiate themselves with the mainstream electorate. Moreover, those
commentators who support harsh policies may resort to unfair arguments and
demonstrate their own lack of sympathetic identification with the plight of
others.
Consider, for example, David Flint's defence of
government action to attempt to restrict successful applications for refugee
status. In arguing that it had previously been too easy to obtain formal
refugee status in
The Sarrazola litigation involved a
Colombian woman whose brother owed an illegal debt of US$40,000 to members of
the underworld, arising from a drug transaction. After murdering the brother, the
criminals demanded payment from the woman on the basis that they intended to
get it from the murdered man's family. To pay such a sum, the family would have
been forced to sell their home.
It is regrettable that
Perhaps
Perhaps
The Sarrazola case was relied upon by the Howard government throughout
the parliamentary debates in which it defended its tougher approach to the
claims of asylum seekers, just as
This is yet another case of a
government prepared to demonise and harm individuals for whom there is little
populist sympathy. Such individuals cannot rely upon the fact that governments
must face democratic elections. That does not help against populism or the
tyranny of the majority.
To summarise this section,
Chapter
Irrespective
of whether individuals are given adequate procedural protections before
punitive or preventive actions are taken by the state, there is the possibility
of harsh outcomes at the end of the process. To simplify somewhat, this can be
thought of as the issue of excessive or cruel punishment. This is also a
convenient point at which to address cruel means that might be used in
interrogation, whether following or prior to any judicial process.
A
number of smaller questions arise here. Should capital punishment be abolished
by a constitutionally-entrenched provision? What about torture? What about
punishments involving mutilation, such as removing a hand or a foot? While I
totally oppose all these practices, there is a live question of just which
issues should be constitutionalised if a Bill of Rights were created for
I
take a different attitude to capital punishment. It appears that it is possible
for a society to isolate a small range of conduct as being fit for capital
punishment, without it becoming a widespread practice applying to, say,
property crimes. Thus, even though I oppose the reintroduction of capital
punishment into the system of criminal justice anywhere in
I am
also unwilling to constitutionalise more general issues relating to what should
count as merely excessive punishment.
In particular, it appears difficult to find an overall standard for the degree
of harshness in the criminal justice system in general. Nonetheless, my own
view is that we are far too accepting of lengthy terms of imprisonment.
Moreover the harshness of punishment should at least be in proportion to the
harm caused by the crime.
Care
needs to be taken with criminal punishments. Once again, there is a danger that
unpopular individuals, with whom mainstream Australians do not identify, could
be subjected to harsh treatment. Populist politicians may play to the fears of
the public and encourage the demonisation of such individuals. Politicians may
act with deliberate harshness in order to attract votes. Far from providing a
source of enlightenment, they may sometimes lead the electorate in their lack
of imaginative sympathy with people who are seen as "other". The
outcomes can be draconian, sometimes with harsh effects for children and young
people as well as adults.
Such populism
can be seen in action in the scheme of mandatory sentencing that was introduced
in the
This legislation had a disproportional impact on
Aboriginal people, in the sense that it led to imprisonment for a far greater
proportion of the Aboriginal population than of the white population. In March
2000, the United Nations Committee on the Elimination of Racial Discrimination
made observations seriously questioning the compatibility of the regime with
the UN Convention, but this advice was essentially rejected by Australian
politicians, and the legislation was not repealed until 2001, when there was a
change of government in the Territory.
Meanwhile, unsuccessful attempts were made to
challenge the legislation in the Supreme Court of the
I should point out that the analysis of this
situation by Williams is not entirely fair. Williams gives no weight to popular
fears that, in the absence of mandatory sentencing, judges could and would
determine overly lenient penalties that would fail to deter crime or to treat
the impact on victims with sufficient seriousness. Perhaps these popular fears
showed an ignorance of the considerations taken into
account by judges in the sentencing process and of the disadvantaged, or even
desperate circumstances, of many of the individuals convicted of minor property
offences. Nonetheless, the concerns of citizens who were victims of crime, or
saw themselves as potential victims, should also be given their due. We should
not forget that even minor property crime can be experienced as invasive and
disturbing, and can create feelings of violation (Braithwaite and Pettit 1990:
91).
Moreover, although the crimes involved were
minor, the protection of property from theft falls squarely within the state's
basic Hobbesian functions. While one could, perhaps, ask victims to be more
sensitive to the life situations of those who stole from them, the victims had
a legitimate expectation that the state would provide a regime of criminal
justice with some effect in deterring such crimes.
Of course, the complaint against the
It is not obvious, at least not immediately so,
that a civilised society must provide sentencing judges with very broad
discretion to determine sentences. No doubt there are practical reasons why
legislation cannot be detailed enough to take into account the vast range of
relevant circumstances and feed data into mechanical calculations that judges
can make. Moreover, discretion can be like a closed toothpaste tube: if the
discretion of judges is reduced it can create pressures for discretion to be
used elsewhere in the criminal justice system where it may be less transparent
and appropriate (Braithwaite and Pettit 1990: 20-24). However, it is not
intrinsically contrary to the rule of law to limit the discretion of judges.
Indeed, the more certainty that the legislature can build into its statutory
instruments the more effectively they can be consulted by citizens to gain an
appreciation of the legal consequences of their behaviour. Indeed, existing
judicial precedent clearly establishes that the legislature may specify a
mandatory punishment for a particular crime, including a compulsory death
sentence.56
One
might expect Montesquieu to approve of mandatory sentencing. In developing the
first statement of the modern idea of the separation of governmental powers, he
argued that the legal obligations applying to individuals should be those, and
only those, expressly required by law. The liberty that he emphasised was, in
this sense, liberty from arbitrary
government power: "Liberty is the right to do everything the laws
permit" and "A constitution can be such that no one will be
constrained to do the things the law does not oblige him to do or be kept from
doing the things the law permits him to do" (Montesquieu 155-56). For Montesquieu, legal judgments should
reflect the "precise text of the law", and not "the individual
opinion of a judge", so that no one need "live in this society
without knowing precisely what engagements one has contracted"
(Montesquieu: 158).
On this approach, the less discretion allowed to
a sentencing judge the better: constraining judges by way of rigid penalties
specified in legislation could certainly not be considered contrary to the rule
of law or to the doctrine of separation of judicial power. Under such a regime,
the exercise of judicial power would not be usurped by the legislature. Judges
would still interpret the law, discover the facts in a case before them, and
apply to the law (including the specified sentences) to the facts.
But was the mandatory sentencing regime
discriminatory in a racial sense? It is not obvious how it was. It merely
applied certain minimum sentences to certain crimes, with no harsher sentence
applied to people of one "race" rather than another. Accordingly, it
did not have any direct
discriminatory effect.
Nor was this a situation where people of one
"race" were less able to comply with the law than people of another
"race". It was not, for example, analogous to an indirect
discrimination case where an employer does not demand that applicants for a
particular job must be female, but does, without reasonable justification,
demand that applicants must be at least 180 centimetres tall. It was reasonable
for the Northern Territory legislature to forbid thefts of property, even
relatively minor ones, and Aborigines were just as capable of reflecting on the
law and disciplining themselves to obey it as whites (to assume otherwise
certainly would be racist!). If more
Aborigines, proportionally, were sentenced under the regime, this would appear
to be because, for whatever reason, more of them, proportionally, were actually
committing the crimes. Even if the real reason for the difference in
prosecution rates was more zeal on the part of police in prosecuting Aborigines
than whites, that would only show that the police were motivated by racism
not that there was something wrong with the law itself.
The problem has to be stated clearly. It was
that the law produced what were, in substance, harsh penalties for minor
crimes. However, a white individual convicted of such a crime would be exposed
to exactly the same harsh statutory regime as someone of Aboriginal background
convicted of the same crime. Conversely, if the regime were made less harsh,
there would still be a disproportional impact on Aborigines as long as
proportionally more Aborigines than whites were actually convicted. Thus, the
claim that the law somehow breached international obligations on racial
equality was rather weak.
All that said, the effect on Aborigines was
still relevant to the merits of the law but not in a way that could obviously
have led to the law being struck down as unconstitutional. Allow me to explain.
The mandatory sentencing regime operated in a
way that was harsh to people who might commit minor property crimes out of
desperation or alienation from mainstream society, people who in many cases
might deserve sympathetic treatment and help. Such people would include some
Aborigines and some whites, though
not in the same proportions of the total populations of the two groups. The
disproportional impact on Aborigines was evidence that the legislation was
passed with the interests of middle class, mainstream citizens in mind, and
that too little consideration had been given to the interests of more
marginalised groups, such as Aborigines (but perhaps also other groups such as
disaffected white youth). Furthermore, even though the law may not have had a
strictly racist motivation or even (speaking very strictly) a racist effect, it
was still bad policy. It could only tend to exacerbate tensions between racial
groups and make it more difficult for a marginalised racial group to develop a
positive relationship with mainstream Australian society.
This adds up to a strong case against the merits
of the regime of mandatory sentencing, but a case more subtle than has usually
been made out by its opponents. Such a punitive reaction to minor property
crimes and to perception of judicial leniency was unwise, unnecessarily harsh,
and the wrong policy to follow, all things considered.
But it is not at all obvious how it could have been
struck down by an appropriate constitutional provision. Even a provision
requiring "just sentences" would likely be too vague although I
have agreed that the regime was harsh, this is more a political value judgment
than a matter that could easily be constitutionalised. After all, many
punishments may be harsh if measured by, for example, the harm done to others,
since legislatures are fond of enacting moralistic or paternalistic criminal
laws. Even if these kinds of laws were constitutionally prohibited, they have
existed historically, and they seem to suggest that punishment need not, as a matter of law, be in proportion to
harm. Even if I am wrong about this, the mandatory sentencing regime is at best
a borderline case for a Bill of Rights having any role to play. No doubt
something should be done to avoid legislation that makes harsh sentences for
minor crimes mandatory, but this is nonetheless a case that fits more obviously
into the area where harsh laws should be resisted through cultural and political
struggle. Except for one other aspect.
The law imposed imprisonment on children in some
circumstances. That is an outcome that should almost always be avoided. An
entrenched Bill of Rights could certainly forbid the imprisonment of children
(with a balancing provision allowing for justification in extreme and
compelling cases). Though it would take me far beyond the bounds of this
submission to argue the point, imprisonment is a harsh form of punishment for
any offender and is likely to be counterproductive if rehabilitation is an aim.
It must tend either to crush the prisoner's spirit or teach him or her to adapt
to a brutal environment perhaps becoming more likely,
and better trained, to commit further crimes than was the case when the prison
sentence began! Those considerations apply all the more powerfully to children.
Since
a constitutionally-entrenched provision is not on the agenda of the
Consultation, and would probably not be attainable, I will not propose wording
that would be appropriate for incorporation in a Bill of Rights. Instead, I
will propose appropriate wording for the body that I recommend be established
as an outcome of the Consultation: an Independent Commission for Rights and
Freedom. That wording will include specific reference to torture, cruel
punishments, cruel or degrading forms of detention, cruel treatment generally,
and the detention of children. Since there would be no need for the Independent
Commission for Rights and Freedoms to work with a bright line that could be
applied judicially, I will also include some more general wording that asks
whether criminal penalties or comparable detriments are proportional
to any harm that a law seeks to deter or prevent.
I
have developed this submission on the basis that
At
the same time, liberal societies can have good reasons to impose some
constraints on the inequalities that inevitably emerge from unbridled economic
competition. Likewise, they can have reasons to constrain the advantages
conferred by family wealth (even if this is obtained by entirely acceptable
methods).
As
to the latter, liberal societies may wish to ensure that they gain the benefits
of their citizens' natural talents, at least to the extent that this can be
done while also tolerating individual citizens' deeply-valued life plans.
Surely it is legitimate for public policy to include measures that are intended
to ensure that the talents of our citizens do not go unnoticed and undeveloped.
This suggests a powerful reason for a society such as
Other reasons to keep economic inequalities in
check include the decreasing marginal utility of greater wealth; the isolation
and alienation of the poor; the difficulty of sustaining cooperation among
people who are greatly unequal in their power to affect each other's lives; and
the soul-destroying nature of a civilisation that over-emphasizes struggles for
status (Singer 1999: 45-46, 52-53). Furthermore, if
the citizens of modern liberal societies are to live autonomous lives, with a
practical ability to make their own life choices, they must live in conditions
that make this possible, and not, for example, in dire poverty, social anarchy,
ignorance, or debility from disease (M. Charlesworth 1993: 5). Ensuring this
may require considerable pooling and redistribution of economic resources for
the public provision of basic health care; education; political and
legal institutions and processes; public order; transport and communication;
and, more generally, a social safety net.
By contrast, consider the massive inequalities
that could arise in a libertarian society that refused to interfere with any
pattern of holdings that emerged from legally permissible transactions. People
with greater natural talents and developed skills would tend to obtain greater
economic rewards than others for their activities and products, and the
resulting economic inequalities would then be passed on to children. This tends
to create an hereditary power structure.
Similar ideas can be developed with various
terminologies and different emphases. Potentially destructive feelings of envy
will be aroused if citizens meet each other in ways that some find demeaning, or if some experience their situation as
humiliating or impoverished (Rawls 1971: 536-37; Revised ed.: 470-71).
Hierarchical societies contain supposedly superior and inferior ranks, with an
acceptance that members of the "superior" group are entitled to treat
those of the "inferior" group with violence and other kinds of abuse,
"to exclude or segregate them from social life, to treat them with
contempt, to force them to obey, work without reciprocation, and abandon their
own cultures" (Anderson 1999: 312). In such societies, individuals are not
able to stand as equals in public discussion, but are forced to bow and scrape
or represent themselves as inferior (Anderson 1999: 312-13).
Historically, liberal societies have been
confronted by the complexity of modern technology, industrial forms of
organisation, and economic activity. Increasingly through the nineteenth and
twentieth centuries they were also brought face to face with the harshness (for
many) of the outcomes from unrestrained capitalist competition. The present-day
reality is one of large-scale, largely anonymous, societies with millions of
people, a capitalist marketplace, links to similar societies throughout the
world, and the distribution of economic resources as depersonalised flows of
data.
In John Locke's time, when the idea of liberal
tolerance was in its infancy, it made some sense to imagine a relatively modest
state apparatus for protecting the secular interests of its citizens. In the massively
more complex reality of contemporary liberal societies, there is no serious
alternative to active intervention by the state to redistribute property,
provide a range of services, and generally to coordinate social interaction and
ameliorate the plight of those who would otherwise be victims of a potentially
cruel economic system. These aims are superimposed upon what might be seen as
the original role of liberal political thought, that of bringing about a
reasonable and peaceful political order through mutual tolerance.57
It follows that a liberal society need not, and
should not, be a libertarian society. Though it will allow broad latitude for
personal freedom, and will not even insist that all its citizens share liberal
views (or hide their illiberal ones), it will impose some burdens even on
voluntary transactions. For example, it may need to tax incomes or expenditure
in order to raise funds for large-scale wealth redistributions. These may be
necessary to provide opportunities for its less advantaged citizens and more
generally to counter the effects of economic inequalities.
At the same time, liberal societies do not
attempt to crush the economic aspirations of citizens. They tolerate many
things that have some tendency to produce economic inequality, while at the
same time running a system of taxes and transfers to keep inequality under
control. Nor must liberal societies endorse the fiction that all human
individuals are equal in such things as natural talent, developed skills, moral
virtue, and accurate understanding of the natural and social worlds. Such
inequalities are real, and have real effects. However, a liberal society does oppose oppressive hierarchies based
on irrational group distinctions, such as those of sex, sexuality, geographic
origin, or the phenotypical characteristics such as skin colour associated
with the discredited concept of "race". In particular, such societies
stand strongly opposed to the idea that differences in racial characteristics
or sexuality can create fundamental inequalities in the moral considerability
of human beings, with homosexuals or members of certain "races" being
assigned to a lesser, sub-human category of moral concern. Likewise, they stand
opposed to the idea that women are intrinsically inferior to men, to whom they
should be subordinate.
It is, however, difficult to draft simple wording that
adequately captures these principles, especially if it is intended that the
wording be clear, justiciable, and constitutionally entrenched. Father Brennan
has offered some drafting for a clause relating to sex and sexuality (words
that I prefer to his "gender" and "sexual orientation"):
Everyone has the right
to freedom from discrimination on the ground of gender or sexual orientation.
This right is not infringed by measures taken to overcome disadvantages arising
from gender or sexual orientation. (1998: 78.)
However, concepts such as equality and discrimination are
notoriously difficult to define with clarity and precision. Neither direct
discrimination nor indirect discrimination has been a concept that can be
explained and applied straightforwardly, and in any event anti-discrimination
law typically has to provide various exemptions. Part of the problem is that
treating people in exactly the same way when they are differently situated is
not always in the interests of disadvantaged groups. In many cases, this can
only be a starting point in determining whether "discrimination" is
involved. Nor are the reasons for treating people differently always aptly
characterised by a brief phrase such as "measures taken to overcome
disadvantages".
To take a current example, the federal government might,
perhaps with substantial reasons, introduce a statutory scheme of paid,
publicly funded maternity leave without introducing a similar scheme of
paternity leave. The reasons might not be to overcome disadvantages experienced
by women so much as to facilitate the welfare of children. If so, this might
make an assumption perhaps a contestable one, but I think reasonable that
it is more important, other things being equal, for newly born children to
spend uninterrupted time with their mothers than with their fathers. Whatever
the other merits or demerits of such a law, it would not be discriminatory in
an objectionable way and would surely have at least some social benefits. This
illustrates, I suggest, that governments require some room to move in how they
treat men and women.
Similar issues might arise with race and sexuality, although
examples are not anywhere near so obvious. It would appear divisive and
confusing to incorporate into the constitution a provision that relates to
sexuality without one relating to sex (or gender). I suggest that it would be
unwise to try to constitutionalise the issue. Given all these complexities, I
doubt that I could conscientiously vote for a constitutional amendment, and any
proposal would probably fail at a referendum once the complexities became
widely known.
However, something should be done to discourage government
actions that discriminate on the basis of race, sex, or sexuality. An
appropriate clause, with an allowance for government actions with compelling
reasons, could certainly be included in a non-entrenched charter of rights. My
preferred approach is to avoid problems associated with a non-incorporated
charter. Instead, I suggest that appropriate wording be incorporated in the
terms of reference of the new agency that I propose in this submission: the
Independent Commission for Rights and Freedoms.
To clarify, it does not follow from anything I
have said in this section that a liberal society must or should attempt to
suppress every possible action that might contribute, directly or indirectly,
to unjust discrimination. It need not, for example, forbid religious teachings
that homosexual conduct is a sin or that men and women have different spiritual
vocations. However, a liberal society will avoid official actions that have a
discriminatory purpose or a substantial discriminatory effect, and it may well
look to the state to conduct programs to ameliorate the impact of
discriminatory thinking on people who belong to vulnerable groups, such as gay
men, lesbians, women generally, African Americans, Australian Aborigines and
Torres Strait Islanders, and others. At the federal level, there is already a
strong body of legislation that has this effect, such as the Sex Discrimination Act 1984 (Cth), and
similar legislation exists at the state level.
There is a great deal of room to debate the
details of this legislation an examination of Australian anti-discrimination
legislation and its operation could provide the material for a separate
submission of similar length to this one. Does this body of federal and state
legislation go too far in some respects, for example by suppressing some kinds
of legitimate speech and interaction? Does it not go far enough in some
respects? For example, does it adequately proscribe the entire range of
oppressive practices that may encourage hostility or contempt for gay men and
lesbians in the workplace?
In general, this body of law seems to be working
reasonably well, although it is doubtful that
Although the current consultation is expressed
as a "Consultation on Human Rights", I have preferred throughout this
submission to couch the discussion in terms of individual freedom, or rights
and freedoms, or the protection of a personal sphere. But there are, of course,
human rights abuses by malevolent governments that go far beyond interference
with a sphere of personal freedom in the sense that I have discussed, such as
when a program of mass murder is conducted.
Indeed, this fact has been of the utmost
importance to the development of international human rights law. One main spur
to this, and to the associated establishment of international bodies such as
the UN, was deep concern over the horrific program of abuses conducted by the
Nazi government in
The Nazis engaged in mass killings, torture, and
horrific experimentation on unwilling human subjects. They demonised, and
attempted to exterminate, the Jewish people in particular, and targeted many
others, such as homosexuals, the Romany people, Czechs, and Poles. Nazi
operatives imprisoned their victims in camps such as
The
widespread reaction of horror to the Nazis' cruelty has since motivated the
development of a body of international law designed to protect the peoples of
the world from repetitions of such crimes against humanity for so they strike
us. While international human rights law has been far from successful in this
goal in the six decades since World War II ended, the goal itself remains
laudable. International human rights law aims to stop governments from
repeating actions similar to, or any way approaching, those of the Nazis. To
the extent that it aims at this goal, the development of international human
rights law should be welcomed. To the extent that it succeeds, it should be
celebrated. Whenever it fails, we mourn.
But
international human rights law, even if enacted into domestic legislation, does
not provide individuals with adequate protection from the full range of
unjustified actions by the state. Even the first detailed exposition of human
rights in a contemporary international instrument, the Universal Declaration of
Human Rights, contains, in Article 29, words to the effect that the human
rights contained elsewhere in the document can be abridged in order to meet "the
just requirements of morality, public order and the general welfare of a
democratic society." This takes away with one hand much that has been
given with another. In particular, the ability of a state to abridge rights for
the purpose of "morality" is profoundly anti-liberal, even if the
word "morality" is read down to mean some lowest common denominator
of morality obtained from a range of traditions. While some of the rights of
individuals must give way to fundamental concerns about social survival, the
expression "public order" is potentially very broad; and an appeal to
"the general welfare" potentially subjugates individual freedom to
paternalism, and, indeed, to whatever political concerns of the day might
dominate.
Worse,
similar formulae are used throughout the range of instruments that underpin the
system of international human rights law. Even if it were incorporated
wholesale into Australian domestic law, international human rights law would
not go far enough to protect the rights and freedoms of individuals from the
coercive power of the state. All too often, the state can find some authorised
excuse for its actions, such as "morality" or "public
order".
Moreover,
this problem is likely to get worse rather than better. It is especially
sobering to observe the outcome of recent attempts, led by
It
is apparent that the development of international human rights law is
responsive to the agendas of many nations and other actors, not all of which
are primarily motivated by a wish to avoid Nazi-like horrors. Indeed, some may
have concerns that are remote from this motivation, or even antithetical to it,
such as a concern to avoid criticism of their own cruel actions. Some wish to
further particular agendas grounded in political ideologies, religious systems
of morality, or quasi-religious and under-motivated concepts of "human
dignity".
The
idea of human dignity is useful if it is shorthand for the fact that there are
no important moral differences between human beings based on such factors as
geographic origins or the differential distribution of genes or of
phenotypical characteristics such as skin colour among populations. The
treatment of some people as "sub-human" because of such factors is
irrational and morally obscene. But in other situations the idea of human
dignity is not so useful, and may even be counter-productive. It can be
employed against our liberties if it
is taken to suggest that some kind of metaphysical "objective worth"
attaches to biological entities (such as embryos) that happen to possess
identifiably human
The
idea of human dignity along with related concepts, such as the concept of
human rights itself is open to manipulation. These concepts can be used by
some individuals, governments, and non-government organisations not to protect vulnerable, suffering
human beings from Nazi-like abuses of organised power, but to deny or constrain
individual rights that are usually recognised in liberal societies, such as
reproductive rights and rights to freedom of speech. In fact, there is a
serious risk that the constraints imposed by human rights law may soon go too
far in some respects, even if they do not already. To take just one example,
Muslim nations have been enjoying considerable success in sponsoring
resolutions calling for the suppression of speech and images that
"defame" religion. It is all too likely that international human
rights instruments will one day enshrine provisions that require domestic
jurisdictions to restrict their citizens' freedom to criticise or satirise
religious ideas. If this ever happens,
Article
20 of the International
Covenant on Civil and Political Rights ("the ICCPR") already contains
a provision requiring that "Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law." This appears to require that signatory
nations criminalise speech that can be classified as "religious
hatred" but does no more than incite "hostility" to a religion
or to its practitioners. While it is acceptable to prohibit specific
incitements to violence, whether on religious grounds or any others, this
provision of the ICCPR is potentially far too broad. For example, subject only
to debate about what is meant by "advocacy of
religious hatred",
the plain words of the Article seem to require that criminal laws be enacted
sufficient to prevent fundamentalist Protestants from expressing the religious
doctrine that other religions are "the work of the Devil". However
ludicrous that doctrine may be (and I am more willing than most to express my
disdain for it), individuals have every right to believe such nonsense and to
try to convert others. Further, the words of Article 29 could require that
criminal laws suppress the publication of strong anti-religious views such as
those of Richard Dawkins, who notoriously argues that belief in God, as
popularly conceived within the Abrahamic religions, is akin to a mental
delusion and is, on balance, significantly harmful.
As Ahdar and Leigh point out
in the context of legislative developments in the UK, legislation against the
incitement of religious hatred could even chill journalistic reporting of
religious practices or practices associated with particular religions that
provoke strong emotions. Examples could include female genital mutilation,
child or animal sacrifice, occult rituals, and executions under Sharia law, among others (Ahdar and
Leigh 2005: 382-83). Perhaps a journalist could argue that she was not seeking
to advocate religious hatred or to incite hostility, but that could be an
uncertain defence if her writing actually created hostility to a religious
group.
It is possible, then, that
Article 20 of the ICCPR requires the drafting of national laws that seriously
impact on freedom of speech (not to mention freedom of religion). At best, its
wording is borderline: it goes too close to requiring
that criminal penalties be attached to various widespread religious or
anti-religious viewpoints, or even to candid reporting and robust discussion of
controversial religious practices. Laws drafted in purported compliance with
Article 20 would need to be framed carefully to avoid restrictions on free
speech while also responding to the plain words of the Article. Even if framed
carefully, such laws could be applied expansively by courts or tribunals
unwilling to allow their effect to provide only the illusion of protection to
"offended" religious groups. Inevitably, such provisions would have
some effect in chilling robust debate about the merits of religion or of
particular religious viewpoints and practices. Yet, it is in the public
interest that such debate continue without unnecessary
hindrance. We should repeal existing laws relating to religious vilification
and not attempt to create new ones. Freedom of speech must prevail.
Less worrying than Article 20
of the ICCPR is Article 4(a) of the International
Convention on the Elimination of All Forms of Racial Discrimination. This
obliges signatory nations to criminalise, among other things, the dissemination
of "ideas based on racial superiority". Ideas based on racial
superiority are false, irrational, and (to an extent) dangerous, but that is
not to say that they should be prohibited by the criminal law, no matter what
the circumstances. Such criminal laws may have far more compelling justification
in some countries than others, depending on local circumstances. This provision
of the convention is far too broad in its attack on freedom of speech, and it
should not be followed in all its breadth in Australian circumstances. As
discussed earlier in this submission, laws against racial vilification should
be quite narrowly tailored in Australian circumstances, and we should not attempt to meet the full obligation
in Article 4(a). Wherever there is a clash between international instruments and
fundamental freedoms, the fundamental freedoms must prevail.
The
lesson from all this is that the content of international human rights law, as
expressed from time to time in international instruments, should not be
embraced uncritically in liberal societies such as Australia. I.e., it should
not automatically be assumed that whatever is contained in such documents as UN
conventions will always be, or is now, fully compatible with the individual
freedoms that are acknowledged and respected in liberal societies. At the same
time, such documents do not necessarily go far enough in expressing unequivocal
condemnation for some genuinely cruel and arbitrary government actions, such as
criminal penalties for homosexual conduct. In all, international law is a compromised
and flawed product.
Liberal
societies need to exercise caution as they take part in the development of
international human rights law. In some cases, they may need to be critical of
what emerges from the process if it threatens individual freedom by, for
example, requiring governments to impose unnecessary restrictions on freedom of
speech or scientific inquiry, or on individuals' reproductive rights. In some
cases hopefully rare it may be justified for
Overall,
international human rights law must be regarded with a degree of scepticism.
Moreover, as it continues to develop, it has the potential to take less benign
directions if anti-liberal parties such as
None
of this is to deny that international human rights law and the forums that it
offers can benefit
Where,
however, developments in international human rights law conflict with the needs
of a liberal society, the latter must prevail. Accordingly, this submission is
not based on the requirements of international law, important and useful as
those may sometimes be; it is based squarely on what is needed to support
individual freedom in a liberal society.
In this section, I propose to answer a number of
criticisms that are sometimes made of constitutional protections of rights and
freedoms. Some of these criticisms would apply to charters of rights that are
not entrenched, and perhaps to some other legal/institutional innovations, so
it is worth examining them even with the proposal for an entrenched Bill of
Rights off the agenda.
One common criticism from the political Left is
that sometimes the "wrong" parties benefit. For example, Hilary
Charlesworth, who favours a Bill of Rights, bemoans the experience in Canada
that, as she puts it, ""various groups and corporations have been
able to use the charter to avoid legislative restrictions designed to prevent
them from harming and exploiting others" (H. Charlesworth 2002: 67). She
instances the case of R v. Big M Drug
Mart,58 in
which a company was able to argue against a statute preventing large businesses
from opening on Sundays. She adds that prohibitions on anti-Semitic hate speech
were struck down in R v. Zundel.59
However, great care must be taken here. It
should not be assumed that constitutional protections have failed whenever they
produce a legal victory for the "bad guys" (corporations? racist
speakers? religious fundamentalists?) at the expense of others who are
presumably "good guys" (trade unions? censors of hate speech?). For
example, freedom of speech is not merely freedom of attractive or palatable
speech, or even freedom of correct speech. It includes freedom of (at least
some) speech that is incorrect and may be ugly, tasteless, and offensive.
Doubtless there can be cases where up-front, in-your-face insults or related
forms of offensive language that preclude quiet enjoyment of others'
environments can rightly be prohibited in the sense that the sentiments
involved are not permitted in the time, place, and manner concerned. In such
cases, offensiveness moves along the spectrum from the merely annoying towards
the point where it cannot be distinguished from harm. However, public policy
should not be enthusiastic about identifying these exceptions. Generally
speaking, freedom of speech entails that the expression even of morally
reprehensible ideas should be tolerated. The outcome in R v. Zundel should be considered in that context.
In Zundel,
a Holocaust denialist was charged under a Canadian statute with the crime of
spreading false news. The statute relevantly provided that it was an indictable
offence, punishable by imprisonment, for an individual "wilfully" to
publish "a statement, tale or news that he
knows is false and causes or is likely to cause injury or mischief to a
public". Not surprisingly, the accused challenged this conviction under
the Charter of Rights and Freedoms. By majority, the Supreme Court of Canada
held that the relevant provision was unconstitutional.
There is no doubt that Holocaust
denial is ugly, and that it is often, perhaps always, morally reprehensible
speech. I make the latter claim on the basis that, at least typically,
Holocaust denialists not only put forward a false account of the past but also
use contrived and tenuous arguments. Typically, the motivation seems to be
something more than a cranky propensity to embrace conspiracy theories or a
kind of pseudo-scepticism about well-documented and multiply-corroborated
historical reconstructions. Those motives may be present, but beyond this there
often seems to be a dislike (or worse) of the Jews and admiration for the
figure of Hitler. Thus, I have no difficulty in sheeting home ethical blame to
somebody like the "revisionist" historian David Irving or Ernst
Zundel, the subject of the hydra-headed litigation that led to the Supreme
Court of Canada's judgment.
Despite my jaded view of Holocaust
denialists, I submit that the Zundel case
was decided correctly as a matter of both law and policy. The broadly-worded
provision that was relied upon by the prosecutors would have had draconian
effects on free speech in Canada and provided for a response (imprisonment) far
out of proportion to mere "injury or mischief" to the public.
Accordingly, it is not surprising that it was held not to be demonstrably
necessary, in a free and democratic society, for such a criminal provision to
be exist. Nor was it justified as a matter of public policy. Moreover,
Charlesworth fails to mention that the Supreme Court of Canada has upheld other
restrictions on freedom of speech, including other hate speech provisions.60 Indeed, it is arguable that the
court has been too amenable to restrictions on pornographic speech (see my
earlier discussion of R v. Butler).
The Big M Drug Mart case was even more clearly a case that was, with
respect, correctly decided. In this case, Big M Drug Mart was charged with the
crime of selling goods on a Sunday contrary to the Lord's Day Act, a statute that attempted to impose Sunday as a
weekly holiday on religious grounds. While the corporation may not have had a
religion itself, but could only "piggyback" as Hilary Charlesworth
puts it (H. Charlesworth 2002: 67) on the rights of individuals, that is not a
reason why the challenge should have failed. After all, the legislation was either constitutionally
valid or not.
Clearly, this was religiously-based
legislation, as shown by its history and the very title of the statute concerned.
Legislation such as this, which deliberately and effectively imposes a
particular religious viewpoint on citizens in general, is not acceptable in a
liberal society. No doubt some kind of similar-looking requirement with a
secular purpose, such as protecting employees from being worked for
unreasonable weekly hours, could be imposed on a liberal society by legislative
action or through the progressive development of workplace standards (e.g., via
union/employer negotiations or the decisions of industrial tribunals), but that
consideration should not save blatantly religious legislation such as the Lord's Day Act. The court was correct to
strike the Act down for its repugnance to the guarantee in the charter of
religious freedom. In a case such as this, I can only ask, somewhat
rhetorically, what Charlesworth is complaining about.
She overlooks the fact that
narrower and (seemingly) more secular legislation related to Sunday trading was
upheld by the Supreme Court in a later case: Edwards and Brooks61 (for discussion, see Wilcox 1993: 57-58). I submit that the reasoning in
this case is doubtful, but it at least demonstrates that a rights instrument
providing for freedom of religion does not rule out all statutory provisions
that provide rest days for workers.
Though not mentioned by
Charlesworth, there has also been much criticism of the Canadian charter for
failing to bestow extensive rights on the trade union movement via the
charter's provision for freedom of association (see Wilcox 1993: 73-79). I submit,
however, that this is misplaced. It is one thing to provide a right to
associate with others, notwithstanding the temptation that governments have
often succumbed to the temptation to regulate who may associate with whom. It
is another to exempt the associations thus formed from laws that are of general
application and have a legitimate purpose, such as the detailed laws that
regulate labour relations.
No doubt, it is important that some
regulation be put in place to ensure that workers receive reasonable terms and
conditions, despite the superior bargaining power of employers in the
overwhelming majority of situations. No doubt, too, it is important that
industrial disputes be regulated so as to constrain the disruption that they
can cause to the community. It does not follow that such bodies as trade
unions, once formed, should then have unlimited rights to pursue their goals by
any methods that they deem appropriate. Balancing the rights of employers and
trade unions requires specialist expertise, and is part of the ordinary process
of political debate in Australia. Employees should be free to form and to join
trade unions, but the question of what legal rights and privileges trade unions
should then have including the scope of a right to strike is not one that
should be constitutionalised.
A second common criticism is that
any Bill of Rights or similar instrument has the effect of transferring power from
the parliament to unelected judges. However, this is a very misleading way to
describe the situation.62
Before I explain that, I should
state a home truth that is often missed in this debate. The notion of parliamentary
sovereignty should not be the starting
point. The starting point should be that the fundamental role of the state is
relatively limited and does not justify state intrusion in every aspect of our
lives. The modern state has an important role in providing a social safety net
(which necessarily includes a tax-transfer system) and an efficient market, in
addition to its fundamental Hobbesian role of establishing a system of property
allocations and providing its citizens with protection from internal and
external threats. However, its role does not properly extend, for example, to
selecting and imposing a system of religious or moral views, to worrying about
our spiritual salvation, or determining who we will choose as our lovers,
friends, and associates. It may be that we can never tell in advance when some
legitimate and compelling state interest may require laws with a more-or-less
incidental impact on these things, but the starting point should be that the
legitimate role of the state is limited, rather than that parliaments should
have unlimited sovereignty (or, in the case of the federal parliament,
unlimited sovereignty provided there is a constitutional head of power).
Hobbes himself failed to understand this, since
he did not appreciate that the apparatus of the state can be structured
internally in such a way as to allow it to carry out its essential functions
while also being limited in its power to intrude on private matters such as
speech, expression, reproductive rights, and belief. Accordingly, he thought
that the only choices were either (1) a disastrous war of all against all or
(2) a sovereign with almost unlimited powers. After almost four hundred years,
we have ample experience of another possibility: a government with important
but limited powers limited by internal structuring of the state apparatus,
such as a constitution that sets boundaries to the power of the executive and
the legislature, and is then enforceable by courts that have no (or very
little) power to initiate their own restrictions on individual conduct. To
begin with an assumption that sovereignty of parliament must be unlimited is to
neglect everything we've learned over the past centuries. If we fetishise
parliamentary sovereignty, we are stuck in the 1650s.
The problem involved in speaking of any transfer of power from the parliament to
judges can be illustrated
by the example of an entrenched constitutional provision that provides for
freedom of belief, conscience, and worship, or, let us say, for a limit on the
power of parliament to enact laws imposing or suppressing any religious or
anti-religious viewpoint. For simplicity, we might assume that the powers of
the parliament are otherwise unlimited, so that, but for this provision, it
could enact laws suppressing an unpopular religion (or an anti-religious
viewpoint such as that of Dawkins) or making a particular viewpoint compulsory.
Thus it could ban attendance at, say, Presbyterian church
services, or conversely it could require all citizens to subscribe, at least
outwardly, to Calvinist doctrines.
Now
imagine that the otherwise unlimited powers of the parliament are constrained
by the freedom of religion provision that I've described in the previous
paragraph. It then becomes possible for citizens to institute court proceedings
to challenge the constitutionality of laws that, for example, attempt to
suppress the Zeusist religion. The courts are empowered to strike down such a
law as repugnant to the constitutional limitation on the power of the
legislature. Is it an apt description when indignant politicians describe this
as a situation where power has been removed from parliament and handed to
unelected judges? I submit that it is not.
I
concede, of course, that power has been taken from the legislature: the
legislature no longer has its former power to suppress religious viewpoints
such as Zeusism. It might also be claimed, with some truth, that a new power
has been granted to the courts: after all, they now possess a jurisdiction that
did not exist before. They have been empowered to strike down laws that are
made beyond the power of the legislature in the relevant respect. Note, however, two important aspects of the courts' exercise of
this jurisdiction.
First, the power that has been given to the courts is a tightly constrained one
in the following sense. The court hearing the case does no more than determine
when a statute has overstepped the line and when it has not. In adjudicating
this, the court is bound to give effect to a legal provision in the
constitution, which is itself a document with democratic legitimacy. The court
compares the challenged law with the superior law in the constitution in order
to assess whether there is any incompatibility. If there is, the constitution
prevails, and the court has no discretion to determine otherwise. This is
exactly the sort of exercise that judges carry out every day and for which they
are prepared by their legal training and professional experience. Judges are
continually required to compare sources of legal rights and obligations, such
as contracts, common law precedents, state laws, federal laws, and
constitutional provisions. They are prepared by training and experience to
interpret laws, ascertain which prevail in the event of inconsistency, and
determine the rights and obligations of the parties that appear before them,
including, where necessary, representatives of the states. The power is
structured, limited, and requires professional expertise.
Second, and even more importantly, even if it is true to say that a power has
been conferred on the courts and their "unelected judges" it is not the very same power that was
removed from the legislature. The judges are not empowered to do
what the legislature could previously do, i.e. make laws that suppress a
religious or anti-religious viewpoint or to impose one on the citizens. In the
new world, with the entrenched constitutional provision limiting the power of
the legislature, no one has that power anymore. The citizens are free
to believe and worship, or to reject religion, or to adopt whatever viewpoint
and related practices they wish, and neither the legislature nor the courts can
tell them otherwise. If the legislature enacts a law that purports to do so,
the citizens can challenge it in the courts. But the judges are then simply
adjudicating between the rights of the state and those of the citizens making
the challenge. They do not themselves exercise the power that formerly belonged
to the legislature.
Hence, in this example there is no power that has been transferred from the
legislature to the judges. A huge area of power has been taken away from the
legislature, but it has not been handed to the courts. Instead, the citizens
have been given an enhanced area of freedom from the exercise of power by
government. It is true that the "unelected judges" have a new
jurisdiction, or function or you can call it a "power" if you wish
but, picking up the first point made above, it is no more than the
"power" to do what they are trained to do, i.e. adjudicate the rights
of the parties who appear before them in court. The judges cannot themselves
abridge religious freedom. To say that power has been taken from the
legislature and given to unelected judges is extraordinarily misleading.
Indeed, the "power taken from parliament and given to unelected judges"
idea might aptly be described as a meme whose power to propagate itself in the
mass media and elsewhere is far out of proportion to the small grain of truth
that it contains (even Wilcox uses this meme surprisingly uncritically 1993:
231). Its presence in the debate distorts the issues, and it is thus worth
contesting whenever the opportunity arises.
It
may be less misleading to talk in the way that I'm objecting to if a
constitutional provision is vague and uncertain, giving the judges wide
discretion in interpretation, or if the provision is complicated by a clause
allowing laws to operate if they are "demonstrably justified" (or
something of the kind). Even here, however, the judges will be required to act
judicially, in accordance with principles and relevant precedents, and they
manifestly do not acquire the very same power that was removed from the
parliament. There is good reason, I believe, to make constitutional provisions
as clear as possible in order to guide the exercise of judicial power, but
there is no threat to citizens that judges who are not accountable through
elections will begin to exercise a power that was, for good reasons, removed
from the legislature.
Perhaps the legitimate point
that can be made here is that any Bill of Rights or similar instrument ends up
involving the courts in a balancing process whereby individual rights are
weighed against state interests. This is most obvious in the Canadian Charter
of Rights and Freedoms and other charters that have followed it, but something
similar also happens in the constitutional jurisprudence of the US Supreme
Court, which applies different levels of scrutiny to the interests of the state
and the way they are achieved in legislation, depending upon the nature of the
right that is infringed. In the Canadian system, this activity by the courts is
given an explicit mandate in section 1 of the charter, which states that the
relevant rights and freedoms are "subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society."63
It might be argued that any such
process of balancing rights against state interests gives the courts a
discretion that makes them more like legislators than humble enforcers of the
law. To some extent, that point can also be answered: even with that
responsibility to weigh the interests of the state against the right that is
infringed, the courts do not possess the very same power that was taken away
from the legislature; they possess nothing more than a limited and structured
discretion to allow a law to stand even if it infringes rights. The exercise of
this sort of discretion is not based on whim but is exercised in a judicial
manner, taking into account precedents and principles that have developed in
the same jurisdiction and other jurisdictions. Moreover, such a process of
balancing is not foreign to the judicial process the courts do something like
this in many cases where they are required by statutes or common law doctrine
to consider a number of indicia (as when a court determines whether a worker is
an employee or an independent contractor) or explicitly weigh against each
other factors that could push in opposite directions (as when they conduct the
common law "calculus of negligence" to decide whether some action or
failure to act was negligent in the circumstances).
I submit that there is no
substantial merit in the argument that power is transferred from parliament to
unelected judges. No such transfer takes place. A better way of looking at it is
to acknowledge that the power of parliament should be limited rather than
all-encompassing, the limits should be made explicit, and judges are the
best-qualified people to determine in a principled manner in accordance with
their training and experience when the limits have been transgressed.
Similarly, there is no merit in the broader
assertion that there is something undemocratic about limiting the powers of
legislatures or of democratically-accountable executive governments. The issue
of what powers should be entrusted to or withheld from governments is quite
distinct from that of whether, whatever their powers, governments are best
chosen by a democratic process or some other means.64
It is quite consistent to insist
that legislatures and executive governments should be kept out of some issues
entirely while also insisting that
they should be accountable for the exercise of the great powers that they
nonetheless retain.
Another criticism that is
sometimes made relates to the idea that rights should not be constitutionalised
without doing the same with responsibilities. This, however, misunderstands the
issues. Governments already impose extensive responsibilities on citizens, most
importantly the responsibility to settle their disputes with each other
non-violently. Even the slightest acquaintance with the statute books
demonstrates the far-reaching responsibilities that are imposed on citizens by
law. However, there is generally no need to constitutionalise these their
precise extent is a matter for ordinary politics. By contrast, there really is
a need to constitutionalise the limits of government power. This cannot be
limited by ordinary statutes, since the parliament can always amend these. It
can only be done by constitutional entrenchment. Thus, this entire line of
criticism misses the point.
On the other hand, it is
certainly acceptable for governments to make access to certain resources
subject to some kind of performance by the individual. The social safety net
exists to protect people from harsh outcomes, such as unemployment, that are
beyond their control. In principle, there is nothing wrong with expecting them
to make their own efforts to find work as a precondition to providing
unemployment benefits. Thus, Hilary Charlesworth is wrong to dismiss the entire
idea of beneficial legislation imposing responsibilities at the same time as it
gives rights to resources or other favourable treatment.
As it happens, I do not
necessarily disagree with the specific examples that Charlesworth
offers (H. Charlesworth 2002: 75-76). For example, I agree that being accepted
as a refugee should not be dependent on entering
Nonetheless, it is not obvious that all
resources that can be claimed from government agencies should come with no
strings attached. Where resources are provided as a social safety net, it would
be inefficient and unfair to provide them to those who do not genuinely need
them. Thus, we ordinarily expect people to pay for such necessities as food and
housing from their own income. It would be heartless to deny these things to
people who are unable to provide them for themselves, but it is not heartless to ensure that limited
resources are used wisely, such as by requiring at least some evidence that an
individual is genuinely unable to find paid employment.65
Again, lines need to be drawn and complex issues
might be involved, but this is grist to the mill of day-to-day democratic
politics. The provision of positive resources from the state needs to be
enshrined in legislation to provide authority and certainty, but as I argue in
the next section it is not apt for constitutionalisation.
Hilary Charlesworth raises two other issues that
trouble me. One is her claim that a Bill of Rights should enshrine positive
rights, such as rights to housing and education. It is agreed on all sides that
the role of the modern state includes the maintenance of a tax-transfer system
in which revenue is raised by the imposition of taxes on (for example) income
and certain private spending. The revenue is then distributed to government
programs, including spending programs that provide a social safety net for
those who would otherwise experience harsh outcomes if the capitalist economy
operated without restraint.
The tax-transfer system has a considerable
impact in redistributing wealth from the rich to the poor, as well as
overcoming market failures by funding worthwhile programs that might not be
possible if reliance were placed entirely on the private sector. Unfortunately,
there may also be an element of wasteful "churn" when taxes are
imposed on the middle class, then used to provide services to the same class
with no real gain in efficiency. Be that as it may, the operation of the
tax-transfer system and the general range of services that it provides is not opposed except by a tiny number of extreme
libertarians who have no real influence on Australian politics.
It
may be justifiable to use the state's apparatus as a means to pool resources to
pursue certain values collectively, even though some individuals may be opposed
to some of those values. However, it is one thing for the state to spend taxpayers'
money on contentious projects; it is another for it to suppress the personal
activities of individuals who disagree. For example, we should accept that
The
state inevitably promotes some values, rather than others. Thomas Nagel (1991:
167) points
out that this is a worse when the state acts on our behalf in a way that
violates our deepest convictions about the meaning of life than when it merely
promotes, say, controversial aesthetic values. But in any event, some kinds of
state action impose values far more intrusively than others. For example,
public funds spent on subsidising performances of classical opera require
taxes, but they in no way inhibit the enjoyment of rock music, and may not even
have an effect on diminishing rock music's audience. Indeed, there are likely
to be limits to how much overall taxation can be levied. As Braithwaite and
Pettit express the point, "the exigencies of fiscal politics first lead to
the setting of a target budget deficit or surplus and then different spending
programmes compete for the scarce resources available under the expenditure
ceiling" (1990: 108). Hence, the money expended by the state is probably
money that would otherwise have been spent somewhere else, rather than
an additional amount extracted from the unwilling especially for the purpose of
this particular subsidy.
Notoriously, there is no general agreement about
what level of overall taxation should be levied, what tax mix is most
desirable, or which government programs should be the highest priority. Debate
about these issues is the stuff of day-to-day politics, with
"left-wing" political parties generally seeking to expand government
programs, while "right-wing" wing parties generally seek to contract
them. (In fact, this is simplistic since "right-wing" politicians
often end up leading high-spending administrations that splurge public revenue
on such dubious projects as foreign wars, extreme efforts to suppress the trade
in recreational drugs, subsidies to big business, etc.) This is all part of
day-to-day politics in a country such as
As well as being unnecessary and at odds with
ordinary political processes in
In response to a similar point, Charlesworth
observes that the constitution of South Africa does, indeed, contain positive
rights such as those I am arguing against, and that these have been considered
justiciable by the South African Constitutional Court (H. Charlesworth 2002,
75). Perhaps so, but it is difficult to see how a court could do more than
order the provision of the most basic program in the absence of any program at
all for, say, public education or housing. Even here, we might worry that a
government could meet its bare obligation in a somewhat derisory way that might
render the constitutional right largely illusory. In any event, irrespective of
the situation in
Finally, on this point, it is not necessary that
a nation's constitution spell out the entire role of a modern state. If it did
so, it would mention not only the provision of services such as education and
housing but also the state's fundamental Hobbesian functions. The apparatus of
the state enables large societies to exist and prosper, without the kind of war
of all against all feared by Hobbes. It does so by such means as establishing a
system of property (taking some resources from the commons and allocating them
to individuals or groups), sustaining a market for goods and services, banning
most uses of violence to obtain advantage (hence we have laws against murder,
rape, armed robbery, and so on, although we leave some limited scope for
prowess in violence by permitting heavily-regulated martial sports such as
boxing). In order to carry out these roles, the state must spend revenue on
such institutions as police forces and criminal courts, but also systems of
registration for major items of property such as allotments of land. In
addition, it attempts to deter and where necessary to resist attacks from
foreign enemies, and thus spends revenue on military personnel and equipment.
It might be suggested, with considerable
plausibility, that everyone has a "right" that the state provide such
things as a system of property, a criminal justice system, the armed forces,
and so on. Certainly these things are necessary for large societies to function
with internal peace and a degree of security from external attack. However, it
is not necessary to spell out rights to these things in a constitution. The
moral here is that the role of the state, even
its most fundamental role, need not, and should not, be constitutionalised.
A document such as the Australian Constitution need not delineate the vast
range of governmental responsibilities under contemporary conditions. A
subsidiary document such as a Bill of Rights should be restricted to fairly
precise specification of those things that the state should not do, but which governments of all
persuasions may be tempted to do.
Moreover, the attempt to constitutionalise a
vast range of state functions and political issues is not merely wrong in
principle. It must make the chances of obtaining a Bill of Rights, or any other
over-arching mechanisms to guide the actions of governments, even more remote.
I suggest that all such attempts be removed from the agenda and that we
concentrate on developing carefully focused mechanisms to enhance the liberal
character of Australian society.
The second concern that I have arising from
Hilary Charlesworth's analysis, is her claim that there seems to be "no
reason in principle
all private persons and entities should not be required to
act consistently with human rights standards" (H. Charlesworth 2002, 75).
This would be a recipe for an extremely illiberal regime if it were enacted
into law, or worse, constitutionalised. Take for example the right to freedom
of religion. The idea here is that there are compelling reasons, some of them
enunciated by Locke, why fire and sword the coercive might of the state
should not be brought against citizens for the purposes of imposing a
particular religious viewpoint or suppressing others. However, private
individuals do not wield the power of fire and sword, so it is difficult to see
how they could act consistently or inconsistently with the idea of freedom of
religion. I am not sure that the idea is even coherent.
Perhaps individuals could act consistently with
freedom of religion by not arguing for laws that impose a particular religion,
but even if this is a moral responsibility it is difficult to imagine how it
could be made a political one unless the state enacts a law forbidding such
speech. But that would be a severe abridgment of freedom of speech and
expression.
There are, of course, difficult issues about how
far we should tolerate the intolerant. However, the general assumption in the
area of free speech is that the advocacy of intolerant laws should itself be
given a broad measure of tolerance. That doesn't mean it should receive credence. We may have powerful liberal
arguments to put in opposition to laws that would restrict freedom of religion
(for example), and we may
argue that the state should be unimpressed by any advocacy of
those laws. But that is very different from making the advocacy unlawful.
Writing in the American context, Martha Nussbaum puts the point well:
If people seek
to torture children, or to enslave minorities, citing their religion as their
reason, their claims must be resisted even though they may be sincere. If they
simply talk in favor of slavery or
torture, their freedom to speak must be protected, up to the point at which
speech becomes a threat. They will not, however, be able to present their ideas
in the political sphere on an equal basis with other ideas, since the
Constitution (in the case of slavery) and the criminal law (in the case of
torture) forbid the practices they recommend. So: people are all respected as equals, but actions that threaten the
rights of others may still be reasonably opposed, and opinions that teach the
political inequality of others, while they will not be suppressed, will still
be at a disadvantage in the community, since their advocates would have to
amend the Constitution to realize their program. (Nussbaum
2008, 24.)
It should be added that, even if it is not
necessary to amend a nation's constitution to realise such an intolerant
program, the program's advocates will (rightly) be at disadvantage because they
will need to overthrow ethico-legal principles that are widely accepted within
a liberal society. Within such a society, they cannot expect equal
consideration of their views in the public sphere. They can, however, expect to
be permitted to express their views.
There should be no legal requirement that
private persons must act consistently with freedom of religion to the extent
that that can be given any coherent meaning. Unlike the state, individuals
should be free to advocate or oppose particular religious doctrines. They
should not be required to act consistently with freedom of religion in such
private choices as their sexual partners and other associates; e.g., nothing
should forbid a Muslim woman from preferring to marry a man of the same faith
(rather than a man from some other religious background or a religious
sceptic). Nothing should prevent a committed atheist from preferring the
friendship of other non-believers to that of religious individuals. In all
these ways, there should be no requirement that private individuals attempt to
provide an equivalent to the state's neutrality in matters of religion. Indeed,
whereas the state should not directly express a preference for any viewpoint on
matters of religion,66 there should be no reason to forbid private
individuals from proselytising for their respective religions or from engaging
in severe criticism, or even satire, of whatever religious beliefs they reject.
Similarly, the might of the state should not be
used to suppress my freedom of speech, but it does not follow that I must try
to provide an equivalent to this in my private life. I need not be neutral
about what viewpoints are expressed in my own home, or about whether I should
invite to dinner both people with whom I agree (and may wish to collaborate in
various ways) and people with whom I profoundly disagree on important matters.
The nature of a right such as freedom of speech is that, in its essence, it provides a zone where individuals are protected
from the might of the state.
To take another example, freedom of association,
when combined with freedom of religion, suggests strongly that groups within
the larger society need not take the same neutral stance on contentious moral issues
as we expect from the state itself. While it would be wrong for the state to
enact criminal laws in order to harm consenting adults or sufficiently mature minors individuals merely for engaging in homosexual
conduct, there is nothing that ought to stop a religious organisation from
preaching the doctrine that homosexual conduct is a "sin". When it
does so, we might accuse it of irrationality or bigotry, but it is not the
business of the law to compel such an organisation to change its doctrine (that
would be a clear violation of freedom of belief, conscience, and worship). Nor
should the law intervene if the organisation expels active gay members or
forbids its priests from teaching a contrary doctrine.
Thus, the
state must honour freedom of religion and freedom of speech, but particular
religious organisations need not to do so in their interactions with adherents
or others. The principle is not that all sects must open themselves to all
doctrines and all comers, but merely that the
state should not bring fire and sword to impose the views of a particular
sect on its citizens. Nor, conversely, should it try to suppress a sect that it
dislikes.
The point of all this is that, contrary to Charlesworth's
apparent assumptions, there really is an asymmetry between private individuals
and the state. The apparatus of the state, with its organs for making and
enforcing laws, dwarfs the power of individual citizens and this is
intentional, not merely an interesting fact about how things are. We accept the
apparatus of the state existing above us. In doing so, we are motivated, at
least in part, by the Hobbesian reason that the state is able (with some
success) to enforce peace among the citizens within its jurisdiction. Thus, our
relationships, as individuals, to the state are quite different in character from our relationships with
our fellow citizens. The vertical relationship between Leviathan and the
individual citizens is, in an important way, not analogous to the horizontal relationships of citizens to each
other. The rights that citizens have an interest in claiming vis-ΰ-vis the
state go far beyond those that they have an interest in claiming against each
other or against private organisations.
The state takes coercive action to require us to
treat fellow citizens and others within its jurisdiction in certain acceptable
ways, thus reducing day-by-day threats to our welfare (particularly from the
minority who may not be dissuaded by less coercive means such as internalised
moral norms or fear of social disapproval). However, the question then arises
as to how Leviathan itself can be restrained from using its power in arbitrary
or frightening ways. Here is a unique job for constitutional law: to design the internal structure of the state
so that government is limited, predictable, and controlled by internal checks
and balances.
Accordingly, Hilary Charlesworth is incorrect to
think that there is no reason in principle why rights held against the state
should not also be held against individuals or groups. What could be said in
her partial support is something important but far more limited. This is the
fact that the relationship between the citizen and the state is not the only
"power relationship" that exists in modern societies. There is a
network of other relationships in which some individuals, corporate bodies,
communities, or groups exercise an element of power over others, even though
the might of the state theoretically dwarfs them all ("theoretically"
because some transnational organisations are very powerful indeed, and may
sometimes even bully nations).
Since we encounter many kinds of private power
that are intermediate between individual citizens and the state for example
the power of parents, employers, doctors, large businesses that supply goods
and services, churches and other religious bodies, organised migrant
communities, and so on we sometimes expect the state to regulate the exercise
of these other kinds of power. Hence, the state enacts legislation in such
areas as child protection, employment and labour relations law, consumer
rights, and medical registration. All of this is meant to benefit us as private
individuals and to allay fears of the whimsically, abusively, or selfishly
exercised power of non-state actors. However, it does not entail that the state
should interfere whenever it likes with the internal working of organisations
that people belong to voluntarily, and are free to leave, such as the Christian
churches.67
The complexity of regulating non-state actors
that exercise power intermediate between that of the state and ordinary
citizens can be seen in the medical area, where protection needs to be given to
the individual autonomy of doctors but also to that of patients, who are
typically ill, fearful, emotionally vulnerable, and perhaps overawed by medical
expertise and authority. The special vulnerability of patients invites the use
of law to prevent doctors acting in various ways to exploit them (such as by
deliberately keeping back information, attempting to impose the doctor's
personal moral or other values, or enrolling patients in dangerous experiments
without their knowledge).
What, however, when the legitimate expectations
of vulnerable patients collide with the religious or moral beliefs of doctors?
To recycle an earlier example, it is easy to imagine situations where the state
could have good secular reasons to require a doctor to carry out an abortion
for the health or welfare of a vulnerable patient, yet this is against the
conscience of the particular doctor whose religion teaches that abortion is
sinful. Which interest should prevail here? In my view, solicitude towards
religious belief should not prevail entirely in such a situation. However, I
favour the state accommodating the conscience of the doctor as far it
reasonably can, perhaps by giving an exemption in situations that fall short of
emergencies. On the other hand, accommodation does not mean having things
entirely your own way; it is arguable that conscientious exemptions should be
contingent upon some cooperation with the secular purpose of the law, even if
the doctor finds this distasteful. For example, a Catholic doctor might, in
non-emergency situations, at least be required to provide a referral to a
colleague with no similar scruples.
Of course, the issue discussed in the preceding
paragraph reflects arguments that arose in the recent reform to abortion law in
the state of
In some cases, e.g. where there is widespread
prejudice, some individuals could suffer from the cumulative decisions even of
individuals who do not, taken one by one, possess much power. For example,
people from a certain racial background might suffer discrimination at the
hands of shop owners and proprietors of similar businesses that supply goods
and services to the public. The cumulative effect of many discriminatory acts
could have drastic impacts on the welfare of somebody from a widely-despised or
disliked background. For this reason, there is merit in enacting legislation
that forbids racial discrimination in supplying goods and services to the
public. Similarly, there is merit in enacting legislation that forbids racial discrimination
in employment. Indeed, there is merit in creating a strong framework of equal
opportunity and anti-discrimination law; this has become an accepted function
of the state in modern society.
But the details of anti-discrimination law
particularly the issue of where tolerable kinds of discrimination by people in
their private lives end, and the need for regulation of various kinds of
private power begins are for the day-to-day political process. Reasonable
people and reasonable political parties can disagree about just which
transactions should be regulated and how, what grounds of discrimination are
important problems within a jurisdiction, what exceptions should be made to
anti-discrimination law, and so on. Unlike the exercise of power by the state
itself, these are not matters that are apt for constitutionalisation.
Thus, there is legitimate scope in some
circumstances for the state to require those who wield intermediate power in
society to do so subject to legal rights that are assigned to individual
citizens who stand at the weaker ends of power relationships. However, there is
no general rule that constitutional limitations on the power of the state
should have equivalents whenever individual citizens deal with each other. To
imagine otherwise would be to neglect the important difference between the
vertical relationship of citizen and state and the horizontal relationships
among citizens. It would also show a poor understanding of the sheer complexity
of the various power relationships among citizens and other parties that
interact beneath the overarching protection of state power. In many cases,
there are good reasons to use law to regulate these other power relationships,
but reasonable minds will differ on the manner and extent, and the law must be
open to detailed amendment from time to time.
It would be wrong in principle to
constitutionalise positive rights against the state i.e., claims for various
kinds of assistance or resources. It would also be wrong in principle to give
the same, or equivalent, rights to citizens in relation to each other as they
are given in relation to the state. All these issues are the subject of
day-to-day politics. A document such as a constitutionally-entrenched Bill of
Rights should do no more than specify the limits of state power. It sets a
perimeter around the power of the state. Within that perimeter, the state
exercises discretion, subject to democratic accountability and the moral
pressure to act for legitimate reasons.
A similar principle should apply to a
non-entrenched charter, which has essentially the same purpose as a Bill of Rights, or to any other innovation in legal and
constitutional arrangements that is meant to act as a partial substitute for an
entrenched Bill of Rights. This brings me to what should actually be done in
In recommending what should be done to enhance
the protection of rights and freedoms in
One problem well known to Australian constitutional lawyers
is that such an instrument could (seemingly) not be used as a basis for courts
to give purely advisory opinions on whether other legislation is inconsistent
with such a charter. It has long been accepted that the Australian Constitution
structures the judicial power of the Commonwealth in such a way as to exclude
advisory opinions in federal jurisdictions: see In re Judiciary and Navigation Acts.68 The reasoning in this case, that advice on an
abstract question of law is not a "matter" for the purposes of
section 76 of the constitution, would appear to apply to any advisory opinion
from a court exercising federal jurisdiction as to whether or not a law was
inconsistent with a non-entrenched charter of rights. It is not, I suggest, in
the public interest to introduce an elaborate scheme that is unlikely to be
constitutional. Apart from the issue of recklessness in use of public
resources, it would be necessary to regroup and introduce alternative reform
(if the scheme were struck down). However, the taste for reform could easily be
lost if an initial attempt proved to be an expensive and high-profile failure.
To some extent, the gap can be filled by access
to the UN Human Rights Committee for breaches of the ICCPR. I recommend that
this access continue, but it is not a panacea. The ICCPR is broadly worded,
contains weasel words that allow signatory nations wide scope to argue that
they are complying, and is easily open to conflicting interpretations. It is
not a panacea. Indeed, it is arguable that the interpretation adopted in the
case of Nicholas Toonen was incorrect.69 Father
Brennan quite rightly describes it as "a little curious" (1998: 71).
Legally dubious decisions such as this will not always command the respect of
More generally, a disadvantage of anything less
than entrenched protection of rights
and freedoms is that the opinions of UN committees, non-judicial commissions,
and other bodies that have only moral authority may sometimes have little
effect. Legislatures and executive governments can get away with ignoring these
voices, especially if the government is backed by popular opinion. For example,
Hilary Charlesworth refers to the "disdain and hostility" with which
the government of the time treated the Human Rights and Equal Opportunity
Commission's report on the "stolen generation" of Aboriginal children
(H. Charlesworth: 34). Perhaps there is little that can be done about this, as
governments exert the ultimate power to act or not act, as well as the ability
to engage in robust speech against viewpoints that do not suit their political
agendas. In that case, the most that can be hoped is that bodies such as the
Australian Human Rights Commission will be provided with sufficient resources,
and continue to command sufficient community respect, to be able to conduct
rigorous investigations and ultimately exert an influence even when their
conclusions are unwelcome to the government of the day.
In any event, the idea of an entrenched Bill of
Rights is off the table for the purpose of the current exercise, and the
required constitutional change is probably unattainable in any event
certainly without the full support of all significant political parties. In
short, it won't happen
not in anything like the political climate that has
characterised Australian history to date.
Another problem that I see is that, speaking
realistically, no government will embrace the full implications of the Millian
harm principle. With regret, I conclude that, although we should hold on to
this principle as one to be invoked in political debate, we should not attempt
to give it direct expression in new legal or institutional arrangements.
Accordingly, I do not propose to recommend any arrangements that go so far.
However, I do urge in the strongest terms that all individuals who care about
individual freedom do whatever is needed to elevate the harm principle to a
higher level of prominence in public discussion of criminal laws. The voices of genuine Millian liberals are
sorely needed in public debate in
Given these constraints, my recommendations for
new institutional arrangements are confined to the federal level of government.
I am hopeful that a new institution for scrutinising federal laws may
ultimately have a benign flow-on effect upon state laws: the community may
become more conscious of the ability of state legislatures to enact laws
without similar scrutiny and may ultimately demand change at the state level.
Even more optimistically, precedents at federal level may come to provide some
guidance to state governments when they are tempted to enact moralistic,
offensively paternalistic, or otherwise inappropriate laws. We can only hope.
Something certainly must be done. There is ample
evidence that public policy is frequently made in an atmosphere of widespread
fear or moral outrage. In the field of bioethics, for example, the development
of the law has been distorted by such irrational fears as the fear of violating
the natural order or playing God. In other areas, there is a widespread
tendency for mainstream Australians to be insensitive or unimaginative when
considering the interests of marginalised people. In some cases, this can cross
the line into racism or at least cultural xenophobia. Even where the line is
not crossed, and all that is involved is a failure of imagination, the
mainstream public can support harsh treatment of those whom it does not
understand.
It
does seem that it is easy for human beings to deny the presence of humanity in
others or rather, since the issue is not about the sanctity of Homo sapiens
Politicians
all too often seek populist advantage by fanning the community's fears and
pandering to its lack of imaginative sympathy for those who are seen as
"other" (which is not confined to those who are obviously vulnerable;
it can include individuals who are privileged in many ways, such as a
successful artist like Bill Henson). Moreover, legislatures and individual
politicians are faced by strong, well-organised lobbies that do
not give prime importance to ideas such as the harm principle or liberal
tolerance, but to their own religious, metaphysical, or moral agendas. Faced
with this, politicians can be under great pressure to be seen to do something about anything that is
depicted as a threat or a social evil.
In my respectful submission, something serious
and decisive need needs to be done about this.
The greatest problem is not when a determined
government introduces draconian provisions against fierce parliamentary
opposition and in the face of public disquiet. Such decisions are relatively
rare and they can be put to the test in the electoral process. Sufficiently
unpopular laws can become electoral millstones, as has happened more than once
in Australian history with unpopular industrial relations legislation (in 1929
and 2007). The greatest threat to individual liberties is from popular
legislation that does little to prevent the majority from doing what they want
and also has a degree of bipartisan support. This, for example, is the
situation with harsh treatment of asylum seekers, illiberal laws that ban
recreational drugs, attempts to rein in the creativity of artists, and
unnecessary laws that restrict medical research. In all these cases, the
state's actions are populist in nature, appealing to
widespread fears that politicians have no real interest in soothing with
rational analysis.
There seem to be two main kinds of cases. First,
there are illiberal legislative prohibitions where there is no good reason to
make the activities concerned illegal at all, but politicians and the public
are swayed by such things as paternalism or moralism, believing that
"there ought to be a law". Second, there are laws that address
genuine issues relating to the safety and security of the public, but in a way
that treats more marginalised citizens those who are not part of the mainstream
of voters with scant understanding of their interests.
Some laws, such as drug laws, show elements of
both tendencies. Here, illiberal laws impose penalties on essentially
self-regarding actions, but there is also an element of pandering to the fears of
mainstream voters, who see drug users as threatening. Some of these mainstream
voters would, I expect, never agree to laws seriously restricting their own
alcohol consumption, but they are unable to make to the imaginative leap to
consider the interests of (frequently) young drug users who may gain
significant benefits as well as creating risks for themselves, of course by
using recreational drugs other than alcohol. And yet, there is no need to
assume that alcohol is unique in having benign aspects, such as its beneficial
lowering of inhibitions when used moderately, or to assume that all other
recreational drugs are unalloyed evils with nothing to be said in their favour.
Here, too, mainstream citizens can show a failure to understand the complexity
of experience of other human beings.
Bearing all this in mind, I have set out, in the
Appendix, the suggested core of an Independent Commission for Rights and
Freedoms Act,
using plain English drafting. Of course, the full statute would need to
establish the Commission as a Commonwealth statutory authority, specify its
membership, together with qualifications and terms and conditions of
appointment, etc. However, what I have provided could easily be adapted to form
the main provisions of an Act relating to investigations of federal legislation
that is challenged for its infringement of rights and freedoms.
The
idea is to establish an authoritative agency to review Commonwealth
legislation, on request, as an alternative to challenging the legislation in the
High Court. The Independent Commission for Rights and Freedoms would not be
empowered to strike down legislation, and would not exercise judicial power,
but it would be able to issue authoritative reports to government and the
public, examining the merits of laws, judged against a statutory set of
criteria.
Note
that this is a rather different role from that of the current Australian Human
Rights Commission which I envisage continuing to exist separately since its
remit is rather different (though it would probably need another change of name
to avoid confusion). The work of the two organisations would generally be
complementary, but not always. There could well be circumstances in which the
Independent Commission for Rights and Freedoms would be called on the scrutinise the merits of laws that the current body
would be bound by to enforce. The Independent Commission for Rights and
Freedoms would be expected to display some scepticism about whatever body of
human rights law operated in Australia at any given time, always being prepared
to test whether it was really promoting the rights and freedoms of Australians
or whether some "human rights" legislation might be more Orwellian.
For
example, if the federal parliament introduced laws against religious vilification,
the Independent Commission on rights and freedoms would doubtless be petitioned
to scrutinise them. In doing so, it would consider whether the provisions
along with whatever UN instruments they might be based upon (presumably Article
20 of the ICCPR) abridged freedom of speech without compelling
justification. By contrast, the existing Australian Human Rights Commission
would be required to enforce the new laws and to advocate their merits to the
public. If the role I am proposing for the Independent Commission for Rights
and Freedoms were assigned to a souped-up Australian Human Rights Commission,
the latter could find itself with a conflict of interest when petitioned to
review human rights legislation from a more Millian perspective.
The
new institutional arrangements that I am proposing could have a real impact
only if the Independent Rights and Freedoms Commission were seen as
authoritative. Accordingly, the Commission would need to be well resourced with
research and administrative staff, a good library, and so on. Even more
importantly, the Commissioners would need to be individuals of high calibre and
obvious gravitas. They would not need
to be lawyers, though some background in law would be useful to them. Some
could be academics working in such fields as criminology, philosophy of law,
sociology of law, or political science. I suggest, however, that good use could
be made of
In
1977, the Australian Constitution was amended to require that judges in federal
courts retire at 70. This was evidently meant to ensure that younger minds
would be represented on the courts, but times have since changed. Thanks to
modern medicine, nutrition, and other developments, many 70-year-olds are now
relatively youthful in body and mind, and the general trend in the community is
against involuntary age retirement. While there is no prospect of reversing the
1977 amendment, many of our High Court judges have much to offer the community
after they retire from the bench.
The
Independent Commission for Rights and Freedoms would be a more forceful and
credible advocate of rights and freedoms than a body such as the Senate
Committee for Rights and Freedoms suggested by Father Brennan (1998: 181),
because it would contain individuals who are genuinely independent and not
beholden to parliamentarians for the development of their careers. Nor would
the sorts of individuals whom I envisage serving on the Independent Commission
for Rights and Freedoms be the sort who would be easily swayed by populism or
have any reason to pander to it. They would be able to resist the kind of
demonisation of "the other" that favours a draconian system of mandatory
detention for asylum seekers; at the same time, they would be above the kinds
of trendy social engineering that might, for example, urge a ban on harsh
criticism of religious ideas or try to tighten up the definition of
"sexual harassment" in order to forbid flirting in the workplace.
Moreover, although I am not in position to cost
the operation of such a body, it would be a tiny amount within the
Commonwealth's budget. If taken seriously by future governments with adequate
resources, sound choice of its members, and no cynical attempts to undermine
its operation the Commission could do good work that might repay the
relatively small financial cost many times over. It could be a powerful
guardian of liberty.
In
drafting the core provisions for the Commission's modus operandi, I toyed with the possibility that an appropriate
court, probably the Federal Court, which has more resources than the High
Court, could be empowered to stay the operation of a federal law pending
investigation by the Commission. Such a power would not be exercised lightly.
The court might well refuse to issue such an order where this would create a
legal vacuum that could not easily be filled until the completion of the
Commission's work and parliament's response, or if the court saw a danger to
public safety, health or welfare, or if it took the view that an investigation by
the Commission would be unlikely to achieve significant legislative change.
More generally, the court would balance the interests of the parties in
deciding whether or not to make such an order staying the operation of the
relevant law.
This
process would not remove the ultimate sovereignty of parliament, since the
operation of the relevant law would not be stayed permanently, but only for so
long as was required for the Commission to report on its merits and perhaps
for an additional, but finite, period of time, during which parliament could
decide on its response, if any, to the report. While new laws could be delayed
in coming into effect, they could not be blocked permanently, and the ultimate
decision as to their content would remain with parliament. Additionally, there
appears to be merit in ensuring that a law which has been challenged for its
likely infringement of individual rights and freedoms does not continue to
operate while under challenge.
In
the event, I have not drafted provisions that involve such a process. Further
thought is required as to whether such a power could be brought under the
judicial power of the Commonwealth and whether it could be designed in a way
that avoids undue administrative burdens for the state and its agencies. I am
not satisfied that this could be done. But if legal and administrative problems
do not allow a practical way to achieve this, then it becomes all the more
important that the Commission proceed quickly in its investigations, and that
it be given sufficient resources to do so.
Since
I envisage the Commission reporting on the merits
of Commonwealth laws, admittedly based on the application of a number of
criteria, there is no reason to confine it to examining issues that are apt for
precise legal definition. Accordingly, I have included a broad reference to the
sphere of individual freedom without attempting to give it a precise definition
a strategy that would not, in my view, be appropriate for a Bill of Rights.
Similarly, I have included a broad reference to punishments that are
disproportional to the harm to be averted, with a suitably restrictive
definition of harm.
In
drafting this proposal, I have used the formula "compelling
justification" in the belief that this indicates a stronger need for
justification than merely "demonstrably justified", as used in the
Canadian charter and other instruments that are based on it. Although this
expression is seldom encountered in Australian constitutional jurisprudence, it
was used by Chief Justice Mason and Justice McHugh in Australian Capital Television to indicate a very strict standard,
above and beyond ordinary concepts of proportionality.70 Chief Justice Mason took the view that only
"compelling justification" would support restrictions targeting ideas
or information, while some lesser degree of justification would support
restrictions on modes of communication. A brief search of the AustLII database
suggests that High Court judges have had a very strict standard of scrutiny in
mind on the few occasions when they have used this phrase (such a search also
suggests that the expression is not so foreign to Australian law that courts
and other bodies would have difficulty in ascribing a legal meaning to it). The
word "compelling" of course, has a basis in
If
this drafting is successful, it will overcome the problem that I identified in R v Butler, where the Supreme Court of
Canada accepted that a law was "demonstrably justified" even though
the state produced no unequivocal evidence that such a law was actually needed
to prevent any harm much less that the harm was direct or a matter of
urgency. A danger with the Canadian wording is that a court or a body such as
the Independent Commission for Rights and Freedoms might become too deferential
to the state's view of what is "demonstrably justified", without
demanding that the state produce compelling evidence for its claim.
Section 7 of the Victorian charter contains a
similar "demonstrably justified" provision to the Canadian charter,
but it elaborates the test somewhat. It adds a non-exclusive range of factors
to be taken into account in making an assessment as to whether legislation is
"demonstrably justified": the nature of the right; the importance of
the purpose of the limitation; the nature and extent of the limitation; the
relationship between the limitation and its purpose; and any less restrictive
means reasonably available to achieve the purpose. Williams justifies this
extra verbiage on the basis that it makes the charter more understandable by
non-lawyers (Williams 2007: 82), which is, of course, a commendable aim. However,
upon reflection, I have avoided adding all these words. I may be wrong about
this, but the effect of so many extra words appears to distract from the very
strong test that I propose the test of compelling justification. While the
categories of compelling justification should not, perhaps, be closed, the
expression is meant to convey overwhelming evidence that, without the relevant
law, there will be (for example) substantial, direct, secular harm.
I have defined the expression "compelling
justification" in such a way as to make clear that it refers to compelling
justification in Australian circumstances, not merely compelling justification
in liberal democracies in general. For example, some restrictions on freedom of
speech that may be justified to the required level in
The Independent Commission for Rights and
Freedoms would be a bold, experimental venture. It could easily fail if the
government of the day dismissed its views; attempted to demonise it (if it
dared produce reports that opposed populist directions); or undermined it (e.g.
by starving it of resources or appointing individuals who were known not to
value individual rights and freedoms). It could also fail by producing overly
timid reports. Although I am hopeful that individuals of the calibre I've
described would be fearless and imaginative in their thinking, the proof will be
when the Commission is asked to scrutinise popular, but essentially
anti-liberal, legislation, such as the Prohibition
of Human Cloning Act.
At the outset, I indicated that the future may
be bleak without, among other things, a constitutionally-entrenched Bill of
Rights. Without this, many important freedoms will be at the mercy of a
political process that is often driven by crude populism. Governments will
continue to adopt policies to appease powerful lobby groups or appeal to
mainstream opinion. Moralism and paternalism will continue to play an
unjustifiable role in the development of policy, and individual freedom will
suffer. But perhaps there is another way out. At the least, creation of a body
such as the Independent Commission for Rights and Freedoms would be a valuable,
and relatively inexpensive, experiment. I commend the idea to the members of
National Human Rights Consultation Committee and to others with similar
interests.
The reality, however, is that no reform will be
a panacea. In the end, it will take continual struggle against moralism,
paternalism, and populism. Irrespective of any institutional changes, there is
work for all individuals who wish to defend personal freedom. We will need to
stand up, and to speak out clearly in defence of freedom.
This I believe I have done.
Russell Blackford
[1] This is a central theme of John Rawls's Political Liberalism (Rawls 1993).
2 An early version of this idea
can be found in John Locke's A Letter Concerning
Toleration, in which Locke assigns to the civil magistrate protection of
"things belonging to this Life" but not "the Salvation of
Souls" (Locke 1983: 26).
3 Compare Hart (1963: 21-22), which
emphasises the importance of sexuality to individuals. The same point can be made
about individuals' reproductive decisions.
4 Mill's harm principle is elaborated, developed, and qualified by Joel Feinberg in his magisterial four-volume work, The Moral Limits of the Criminal Law (Feinberg 1984, 1985, 1986, and 1988).
5 Redfern v. Dunlop Rubber Australia Ltd (1964) 110
6
There may
be a point at which we can say no more to a person who weighs the relevant
interests and values differently. However, we may suspect that something such
as indoctrination in a dogmatic moral system has damaged such a person's
natural human sympathies.
7
(1990) 61
8 Ibid. 78.
9 Ibid. 78-9.
10 Ibid.
79-80.
11 Ibid. 80.
For further discussion of these justifications of free speech see Chesterman
(2000): 20-22. Chesterman references a
number of other discussions, of which Schauer (1982) is one of the most
important.
12 413
13 (1988) 166
14 (1992) 177
15 (1997) 189
16 ((2004) 220
17 To be fair, the word
"rights" is often employed to mean something like "protections
based on interests", even by those who seek to retain word's prestige a
product of its more obvious and attractive meaning: "warrant to make a
(negative or positive) claim". The former Orwellian usage is very
widespread, but it should always be challenged, as it gives many arguments a
rhetorical ring that they'd lack if couched in terms of paternalistic
protections rather than in terms of "rights".
18
Catch the Fire Ministries Inc v. Islamic Council of
19 [2000] NSWADT 77.
20 John
21 This entails that
22 On
commercial speech, see Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 US 748
(1976); on corporate speech, see First
National Bank of Boston v. Bellotti 435 US 765 (1978).
23 316
24 425
25 Ibid.
765.
26 Ibid. 788.
27 433
28 463
29 447
30 514
31 478
32 517
33 (1993) 102 D.L.R. (4th) 289,
326.
34 ((1995)) 127 DLR (4th) 1)
35 435
36 Ibid. 802.
37 521
38 Elsewhere, he comments
"We [Australians] allow government to restrict indecent material on the
television, and I do not lose too much sleep over that" (Brennan 1998:
176).
39 (1992) 89 DLR
(4th) 449.
40 Absent some compelling
justification, such as a genuine risk of one sect attempting to massacre the
other. The underlying hope is that allowing (almost) total religious freedom is
more likely to soften the attitudes of the sects towards each other than to
harden them, since no sect is at risk of gaining control of the enormous
coercive resources of the state. Even if they don't like each other, they don't
have to fear the worst from each other. Over time, they may learn to cooperate
and to forget about their harshest doctrines.
41 Compare the outcome in Church of Lukumi Babalu Aye v. City of Hialeah, 508
US 520 (1993).
42 494
43 539
44 Ibid. 562.
45 198
46 539
47 At this point, a question
strikes me and possibly my readers: why not simply apply the harm principle?
Won't any law that is pernicious because of its interference with the sphere of
personal freedom fail to meet the harm principle in any event? So why not just
apply that? But the harm principle may not entirely outflank the principle that
there is a near-inviolable sphere of personal freedom. For one thing, there
will be marginal cases where the state claims that a harm
is sufficiently direct, sufficiently substantial, and so on, but lacks
compelling justification to interfere with very personal matters. In such
cases, it counts against state intervention that the law does not merely criminalise something that is
only doubtfully harmful: it also interferes with the sphere of personal
freedom. Besides this, it may be more practical to gain some institutional
protection of the sphere of personal freedom than it would be to gain official
recognition of something as strong as the harm principle, which potentially
removes the legitimacy of many popular laws.
48 (1991) 172
49 (1995) 183
50 (1996) 189
51 (2004) 223
52 [2007]
53 [1999] FCA 1134
54 [2001] FCA 263
55 Transcript of special leave proceedings
in Wynbyne v. Marshall (
56 E.g. Palling v Corfield (1970) 123
57 I am influenced here by J.
Owen Judd's analysis of Lockean religious tolerance (2001: 151-72).
58 [1985] 1
59 [1992] 2
60 E.g., R v Keegstra [1990] 3
61 [1986] 35 DLR (4th) 1.
62 For a somewhat different
analysis of this issue though one that is broadly consistent with mine, and
leads to similar conclusions see Wilcox, An
Australian Charter of Rights? (1993: 231-39).
63 The leading Canadian
case on this balancing process is R. v.
Oakes (1986) 26 DLR (4th) 200; see 226-27.
64 This
is a short answer to the many critics of Australian
Capital Television who attacked the case on such "democratic" grounds.
65 Of course
there is a real question as to how intrusive and insensitive the state should
become.
66 This would be an example of
Nagel's objection to the state acting on our behalf in a way that
violates our deepest convictions about the meaning of life.
67 But there might be situations
where things are not so simple. What about a migrant community that somebody
could leave in principle but may have little practical prospect of leaving?
Perhaps a compelling case could be made out for intervening in at least some of
the power relationships that form within such a group.
68 (1921) 29
69 E.g. it is highly
questionable whether the ICCPR's rejection of discrimination on the ground of
sex really includes discrimination on the ground of sexuality. I expect that
many nations would contest that interpretation, and it is not plain on the face
of the document.
70 (1992) 177
1. Anyone may petition the Independent
Commission for Rights and Freedoms ("the Commission") to institute an
investigation. Such a petition must allege that a law of the Commonwealth
unjustifiably infringes the rights and freedoms of Australian citizens or
others who are directly affected by the law's operation.
2. The Commission must investigate the merits of
any petition that it receives. The investigation must consider whether the law
of the Commonwealth referred to in the petition infringes the rights and
freedoms of Australian citizens or others who are directly affected by the
law's operation. The investigation must consider what justification exists for
any such infringements of rights and freedoms.
3. Without limiting the generality of section 1., the Commission must consider each of the following
wherever reasonably relevant to the particular case before it:
(1) Does the
law infringe freedom of speech and expression? If so, is there compelling
justification for the infringement?
(2) Does the
law infringe freedom of belief, conscience, and worship? In particular, is the
purpose or a more than incidental effect of the law to impose, or attempt to
suppress, any religion, or any aspect of its doctrine or practice, or to
suppress any criticism of any religion? If so to any of these, is there
compelling justification for the infringement?
(3) Does the
law infringe freedom of association? If so, is there compelling justification
for the infringement?
(4) Does the
law infringe the right to peaceful assembly? If so, is there compelling
justification for the infringement?
(5) Does the
law infringe the freedom to engage in rational investigation of the world,
including through the methods of science? If so, is there compelling
justification for the infringement?
(6) Does the
law impose criminal penalties or comparable detriment in response to any
conduct whatsoever within the personal sphere? If so, is there compelling
justification for the penalties or detriment?
(7) Does the
law require or authorise the punishment or detention of any individual, or any
loss of liberties for any individual (such as by an order for house arrest or
for control of the individual's movements) without providing due process? If
the law requires or authorises punishment, detention, or loss of liberties without
due process, is there compelling justification for this?
(8) Does the
law impose criminal penalties or comparable detriment to an extent that is not
proportional to any harm that it seeks to deter or prevent? If so, is there
compelling justification for the penalties or detriments?
(9) Does the
law impose criminal penalties or comparable detriment on children? If so, is
there compelling justification for the penalties or detriment, either at all or
to the extent that the law imposes?
(10) Does the
law make provision for torture; cruel punishments; cruel inhuman or humiliating
forms of detention; or other cruel treatment? Note: no justification for any of
these is acceptable.
(11) Does the
law treat people unequally or differently on the basis of race, sex, or
sexuality? If so is there compelling justification for this?
4. In each case before it, the Commission must
conduct an investigation in the form of a public hearing, but where convenient
it may also conduct inspections, receive written submissions, or take other
steps that are required for a full and informed investigation of the merits of
the issues raised in the petition, so long as it observes the rules of
procedural fairness or natural justice.
5. Any investigation by the Commission must be
conducted by a panel of not less than three Commissioners.
6. The Commission must report to the parliament
and the public on its investigation within 60 days of concluding the associated
public hearing, but this may be extended to 120 days where the Commission
certifies in writing within the 60 days that there are exceptional
circumstances relating to the complexity of the case or to the volume of
documents and other materials obtained during its investigation.
7. In its report, the Commission must set out
its conclusions on all matters raised in the investigation and its reasons for
those conclusions. Nothing prevents the Commission from qualifying its
conclusions using ordinary English wording, e.g. by stating "This was a
clear-cut case" or "This was a borderline case".
8. The Commission may make recommendations for
the repeal of any law, or for the amendment of any law
to an extent that will ameliorate the law's infringement of rights and
freedoms.
9. In its report, the Commission may identify
any international conventions or other instruments to which
10. The Commission may decline to investigate
further if it is of the opinion that:
(1) Any
infringement of rights and freedoms is likely to be trivial; or
(2) Any impact
on the rights and freedoms of non-citizens is likely to be indirect and remote;
or
(3) There is little
prospect that further investigation will identify such significant
infringements of rights and freedoms as to warrant any legislative amendments.
11. Definition of compelling justification:
(1)
"Compelling justification" means compelling justification in a
modern, secular, liberal society, taking into account
(2) For the
purposes of an investigation by the Commission, the obligation to enact a law
similar to that under investigation, in order to meet
12. Definition of harm
(1) "Harm" means direct, secular harm
to others. It does not include mere offence or affront. Nor does it include
loss from ordinary competition in the labour market or other areas of life
where competition is traditionally accepted in Australian society. Examples of
harm include bodily or financial harm, deprivation of liberty, and psychiatric
trauma (or "nervous shock").
(2) Harm does not include the termination of a
pregnancy, where sought or consented to by the woman concerned;
nor does it include the destruction or alteration of any non-sentient
biological entity such as a human zygote or early embryo. But it includes
actions that will foreseeably have detrimental effects on an actual human
child, once born.
13. Other definitions
"Children", for the purposes of
section 3., means individuals under the age of 18.
"Comparable detriment" includes
non-penal detention, liability for fines, compensation, or damages, reduction
of liberty (e.g. by an order for house arrest or control of an individual's
movements), and any loss of a licence, professional registration or similar
benefit to which an individual is otherwise entitled, but does not include
dismissal from employment or other disciplinary action arising from the
relationship of employer and employee or similar relationships (such as
principal and independent contractor).
"Due process" includes a rigorous
investigation by an independent court, the principles of natural justice or
procedural fairness, and the right to challenge evidence (including by
cross-examination) and adduce evidence relevant to disputed facts.
"The personal sphere" means the sphere
of personal freedom, and includes the sphere of thought, belief, expression,
intimate conduct (including sexual conduct between adults or mature minors,
family formation, and child rearing), and decisions about an individual's own
health and medical treatment.
14. Nothing in this Act reduces the rights and
freedoms of individuals, relative to the Commonwealth and its agencies, or
relative to any person conferred with power by Commonwealth law, whether such
rights and freedoms are found in the Australian Constitution (expressly or by
implication), the common law, custom, relevant statutes, or anywhere else
whatsoever.
I prepared this submission somewhat hurriedly,
commencing soon after the National Human Rights Consultation was announced in
December 2008. It became apparent to me that I would need to write at some length:
the Millian liberal viewpoint for which I have argued throughout enjoys
considerable prestige in Australian society, but it is seldom developed in
detail or with rigour. I realised that I might be the only person with both the
skills and the inclination to produce a fairly comprehensive and rigorous
analysis from that viewpoint, despite its popularity. It is surprising that
this viewpoint does not obtain more representation in Australian public debate.
Perhaps that relative lack of representation arises
from the fact that Millian liberalism demands of politicians that they restrain
their exercise of hard-won power. In particular, they are asked to defer to the
choices that individuals make about their lives, and to be reluctant to
introduce policies that are based on moralism, paternalism, or populism. That
is, I suppose, a lot to ask of our politicians. Nonetheless, I do ask it of
them in this submission.
Realising that this document would be rather
long, I was keen to complete it in good time for it to be read and considered
during the relatively short period of the Consultation. Although I have
succeeded in completing the document quite quickly, the result is somewhat sketchier than I'd
have wanted. For this, I apologise.
In the circumstances, I look on this submission
as more a "Green Paper" than a "White Paper". I.e., I am
open to corrections on factual issues, clarifications of rival positions or
interpretations, dialogue in general and to modifying some views and proposals
where this seems merited after discussion and reflection. Nonetheless, I am
committed to the overall viewpoint and I believe that my analysis of the
relevant legal and philosophical principles, statutes, and case law is
generally accurate. I look forward to responses.
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Wilmut,
I am a Melbourne-based philosopher and literary
critic. My qualifications include First Class Honours degrees in Arts (
I currently work as a freelance writer and
editor, and teach part-time in the
My areas of expertise include legal and
political philosophy, philosophical bioethics, and philosophy of religion. I am
editor-in-chief of an on-line, peer-reviewed journal, The Journal of Evolution and Technology, and a Fellow with the
US-based Institute for Ethics and Emerging Technologies. I am on the board of
editorial consultants for Science Fiction
Studies, the leading peer-reviewed journal in its field, and am also a
member of the editorial board of the Open
Ethics Journal. I act as a referee for several other peer-reviewed journals
in the