My gosh these are delicate times Down Under. Not for Australians the vigorous thrust and parry of political debate with its sometimes brutal metaphors and biting remarks. Those were the days of Churchill and even Keating and now ils n’existent plus. Today we have to cater to the sensibilities of the delicate wallflower or the managers of big banks might opt to virtue-signal with their shareholders’ money and pull ads, quickly to be seconded by the faceless managers of radio stations with nods of approval from the Liberal Prime Minister. Nor would the Black Hands of the world want to imagine that plenty of women have no need to be patronised and are perfectly capable of giving as good as they get. Nope. For these modern day Puritans it’s better to kill off anything that might possibly, conceivably result in some sort of hurt feelings. Leave aside that the Prime Minister of New Zealand is a big bag of wind who pontificates to Australia when she and her country have no skin in the game (at least as long as any people coming into NZ can pass over here as soon as they get citizenship) and when New Zealand spends basically nothing on its national defence.
Still, here at the Speccie we are a last bastion of vim and vigour, a place where contributors can differ with one another without having punctiliously to travel miles over eggshells that must not be broken. Instead, we can disagree within the confines of this weekly publication in more old-fashioned and blunt terms. So I will. Kel Richards, put a sock in it and speak no more about the desirability of a bill of rights for conservatives. In a phrase, you don’t have a clue what you’re talking about.
Readers may recall that last week Richards opted to try to make the case for why conservatives, people like many of you readers, ought now to throw in the towel of their opposition to these sort of instruments and instead get on the fast train to BillofRightsVille. To be fair, the version Kel advocates is limited in what it explicitly says it protects. He labels it a minimalist one, describing it as the ‘Four Basic Freedoms’ statute. There’d be Freedom of Religion; Freedom of Speech; Freedom of the Press; and Freedom of Assembly.
I suppose Richards sees this as limited because it shuns all the economic and social rights much loved by the progressive lefties who massively dominate our law schools and who now are the majority in the legal profession. Get this. Richards says ‘all four freedoms would have common-sense boundaries’. He opines that they would fall ‘within the entirely uncontroversial boundaries of the law of the land’. And anyway, Kel rightly points out that even without a bill of rights of any sort our top judges are indulging more and more in judicial activism (to a point I detailed recently in Quadrant Online that the High Court in a massively long recent judgment struck down democratically-enacted Tasmanian legislation as being unconstitutional without a single mention, anywhere, of any provision in the actual constitution – just a barrage of pointing to judicial precedents, themselves the result of judicial activism, a sort of house of cards but without the house or the cards). Kel further suggests that the list of four is short enough that activist judges will find it hard to misuse them. And anyway, he pleads, don’t we need to do something when Australians are seeing weekly their freedoms (especially the ones related to religion and conscience) eroded?
Note first of all that Richards’ list is not all that different from the one presented to voters in the 1988 s.128 constitutional referendum where that ‘minimalist sort of bill of rights’ lost badly in every state, even Victoria. So he wants a sort of enervated re-run of that attempt, just without it being constitutionalised (possibly because if it were put to the voters I know, and he may suspect, that it would lose).
Now it is true that back in 1988 some senior judges were in favour of the proposed ‘minimalist’ bill of rights and when it failed only four years later, in 1992, the High Court of Australia ‘discovered’ an ‘implied freedom of political communication’ somewhere in the unwritten thickets of a wonderful, written constitution that nowhere mentions it – remembering also that no real-life founder or ratifier thought or imagined this Australian Constitution then coming into effect actually had buried within it a proto-bill of rights that 90 years later a few unelected top judges would ‘discover’. I have long said this was pure invention. I think it also seriously misunderstands what counts as a legitimate ‘implication’ of a written text. But Kel is right that we are where we are and that in the last quarter century the top judges have been expanding this made up ‘implied right’, to the point of striking down Howard government legislation over when the electoral rolls can close and where to draw the line on prisoner voting and more. I concede it’s bad.
But the supposed Richardsian ‘cure’ of a limited bill of rights is way worse than the disease. Today, at least, our top judges are somewhat limited by the total implausibility of the legitimacy of what they are doing. Give them four explicit freedoms articulated in vague and amorphous terms and I guarantee they will have plenty of scope to drive anywhere they want. And if Kel thinks the majority of today’s top judges will drive this limited instrument where he wants them to then he hasn’t been watching the case law coming out of Canada, New Zealand and the UK. He says his inspiration comes from the US First Amendment.
The problem is that no other country’s judges follow US jurisprudence. And even in the US it would be watered-down by now had Clinton been picking the recent top judges not Trump. Remember, if you look at recent Liberal picks to the High Court they haven’t picked a really solid one since Callinan and Heydon and some were worse than those Labor picked (seriously).
Want to fix things? Elect a Liberal party in Tasmania that repeals legislation used to go after archbishops and one federally that repeals s.18C; get a federal A-G who picks interpretively conservative top judges who might start undoing the made-up ‘implied freedoms’ used by a committee of unelected ex-lawyers of late to second guess the legislature based on what these judges happen to think is proportional and reasonable (as if anyone actually gave them that say in a Constitution that endlessly says ‘until the parliament otherwise provides’). You can get a diagnosis right and still be massively wrong about the medicine to take. When you are, it’s best to put a sock in it.
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