If George Williams is one of the foremost advocates of a bill of rights for Australia, it is interesting to note that former NSW Premier Bob Carr is one of its most consistent decriers. No doubt inspired by recent events at the 2020 Summit, Carr has quite an erudite repudiation of the bill of rights doctrine in The Australian today. He draws on some interesting anecdotes in trying to explain why it is perhaps a good thing that Australia is one of the few of the world’s developed nations without a bill of rights:

Like Australia, Canada also has a shortage of doctors in rural areas. British Columbia came up with a scheme to encourage doctors to practise there, with a finely tuned system of incentives. The provincial Supreme Court struck it down, citing section 6 (“mobility rights”) and section 7 (the “right to life, liberty and security”) of the Canadian Charter of Rights and Freedoms. Canada’s rural population is still under-served by doctors, thanks to judges who want to write society’s rules.

That’s the trouble. A menu of abstractions – that is, any attempt to list rights – wrenches from the cabinet table and the legislature and delivers to the courtroom things that ought to be determined by governments. Thus, in the most recent burst of judicial activism, judges in Britain have determined that the justice secretary can no longer block a parole board decision to release a dangerous prisoner. Judges also determined that failed asylum-seekers in Britain could have access to the National Health Scheme, again something that should be a matter for elected politicians.

Carr is essentially arguing that legislating for a bill of rights would take some degree of power away from the government (elected by the people) and move it to the hands of the unelected judiciary. In some respects this line of argument boils down to whether or not you think the legal fraternity should have power above and beyond what the government of the day has because governments can’t be trusted, or whether you think the opposite is true. He does a convincing job of itemising cases where bills of rights have seemingly failed societies that have implemented them, but on the other hand he neglects to consider the positive aspects of such legislation. One wonders how many cases have been brought before the courts in nations like Canada and the United States where wrongs have been duely righted because the people’s individual rights have been enshrined in law in those nations.

I would describe myself as a slightly apprehensive supporter of an Australian bill of rights. While I agree that it indeed possible (even likely) that a judiciary emboldened by a bill of rights could unreasonably impede the agendas of elected governments as Carr has alluded to, I think the potential benefits to the nation are arguably greater. A bill of rights would provide a fairly unequivocal safety net for the people of Australia when it comes to the question of what they are entitled to as individuals in this great country of ours.

At the moment, with the status quo, things remain quite worryingly equivocal. In the absence of explicit legislation. it would seem that the judiciary are afforded greater flexibility to interpret or misinterpret legal cases as their own particular biases might merit in relation to human rights, which all in all probably makes for a less fair and less predictable legal system than we might otherwise have.

© Guy for Guy Beres, 2008. | Permalink | 3 comments

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Now please bear with me and apologies in advance for erring on the side of the zany as I am about to over the fold.

Let’s turn first for a moment towards the democracy of the ancient world – there is an excellent and thought-provoking article from Professor Paul Cartledge here to consider as a starting point. While there are obvious and numerous criticisms that can be drawn owing to the moral backwardness of the era (for example: women and slaves were not entitled to participate in democracy, assembly-goers strictly needed to have had non-foreign parents), Athenian direct democracy is still held up as basically the first and one of the more radical forms of democracy practiced throughout human history. It is a hallmark of Athenian democracy that some of the most sophisticated criticisms made of it back in the day are criticisms that we would probably regard as “undemocratic” today, as Cartledge describes:

Intellectual anti-democrats such as Socrates and Plato, for instance, argued that the majority of the people, because they were by and large ignorant and unskilled, would always get it wrong. In these intellectuals’ view, government was an art, craft or skill, and should be entrusted only to the skilled and intelligent, who were by definition a minority. They denied specifically that the sort of knowledge available to and used by ordinary people, popular knowledge if you like, was really knowledge at all. At best it was mere opinion, and almost always it was ill-informed and wrong opinion.

In contrast, today, we seem to collectively be moving towards a view of democracy that actually favours the majority of the people being actively involved in decisions made on their behalf. The “democracy of the elite” favoured by Socrates and Plato has come to be viewed as synonymous with a certain sort of tyranny in today’s democratic societies. In Australia we know this too well. Our major political parties strive to be more representative, and yet many of us collectively wince when we consider how many trade unionists represent us on the floor of parliament in the Labor Party, and likewise how many lawyers and businesspeople from the Liberal Party do the same.

If a more participatory democracy is what we want in Australia, perhaps it is time to consider some options that increase the opportunities for ordinary people to interact with and influence the government. On this front, and it pains me to the very core to say it, I can see no more promising cue to draw hope from than that provided by today’s erstwhile destroyer of quality television programming, reality television. Yes, that’s right, reality television. As a disclaimer I have never voted on a reality television programme and I don’t recall ever watching a full show end to end without changing the channel (or the television off) in disgust. What interests me is not the content (at least currently), but the lure that audience participation provides. Does anyone really think that these shows would be as successful as they are without the crucial human interaction element, which allows viewers to influence the outcome?

For most of the last decade, television viewers have voted with their television remotes in relation to a swathe of reality television programmes, sometimes unfavourably, but quite often favourably. Some would interpret this as a function of declining television tastes and standards. I would prefer to interpret this at least partially as a function of the basic desire of people to have their say and express an opinion. Here then is a bold and perhaps trap-laden challenge for the Rudd Government: chance your arm with a modern direct democracy pilot! Rather than presuming to know what the people who voted for you think, how about taking a contentious policy decision that needs to be made and putting it direct to the people of Australia, through a television-based poll if that is the medium most likely to be easily digested?

It goes without saying that such a pilot would be an experiment open to widespread and popular ridicule, perhaps for the remainder of the term of the Rudd Government if it went spectacularly pear-shaped – which there is a reasonable chance it might. It would provide further succour to those critics who argue that schemes like the 2020 Summit betray the Rudd Government as a government short on ideas and unsure of how it should approach the administration of the nation. Furthermore, such a pilot would also arguably undermine the robust representative democracy that has served Australia satisfactorily over the past century.

On the other hand, it could be the first brave (and seemingly crazy) step that ushers in a new era of modern democracy; one in which most people, for the first time in living memory, re-engage with the processes of government. Imparting a modern spin on one of the most humbling and yet most fundamentally crucial acts in the civilised world – the casting of one’s vote – could well be the straw that sets the world on an inexorable march towards an improved democracy for the 21st century.

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I do agree that there are plenty of good reasons to be sceptical about the summit, but like Andrew Leigh, even so I can’t really help but be more interested in its positive possibilities. I don’t think this is really about the Rudd Government. I don’t believe that we have a an ideas culture in Australia anymore, and this summit is an artificial but realistic way of bringing ideas back into the public limelight of political debate again. Even if only fleetingly. I would not be surprised if this summit spawns a new annual event for Australia should it be successful in throwing a few worthwhile ideas out into the public domain – something already hinted at by Rudd. One thing Australia does not need less of is the focused discussion of ideas.

There are already quite a number of interesting reports out there from the summit, so I thought I would summarise some of them here. I have to say once again that it appears that the best coverage is coming from The Australian. Fairfax, lift your game.

Peter Martin: A nice look at how the discussions actually unfolded for the economics group at the summit.

‘2020 summit city-centric’ (ABC): Covers National Leader Warren Truss’ assertion that the summit was too city-centric. I had forgot that the Nationals had a leader, truth be told.

Danielle Cronin (Canberra Times): Some high-level notes on those who have declined to attend.

Philip Hudson (SMH): Has an overview piece on the summit, notes that discussions between delegates are continuing this evening in Canberra over dinner. Glyn Davis reportedly “excited” about the exchange of ideas.

Annabel Crabb (SMH): Focuses on the summit’s ephemera which is I think a bit unfortunate. Butchers’ paper, blocks of ice and what sounds suspiciously like airline grade food choices.

‘Prosperous and engaged’ AAP (The Age): The following quote from General Peter Cosgrove sounds strange coming from someone who was always close to John Howard with a defence background, but welcome:

“We believe that we should aim for a cultural step where we are the most open and the most diverse culture in the world.”

Alan Dupont sees the proliferation of nuclear weapons to terrorists as one of the key global security issues facing the nation. Also some interesting snippets from David Wright-Neville, Sharyn Burrow and Fiona McLeod.

Katharine Murphy (The Age): Takes a somewhat sceptical view of the summit, and wonders about its nebulous nature and how this ties in with Rudd’s current focus on “vision”. Does Rudd really have a vision? Looks like an interesting read.

David Marr (The Age): Takes an interesting look at how folks have in some cases tried to sell their own ideas to the delegates. Marr is “just going for a yak” though (not the mammalian sort one assumes).

Sid Marris (The Australian): Highlights an interesting idea regarding the adoption of a school by each of Australia’s Top 100 companies. Also some interesting ideas there from Ernesto Peralta (a “peace corp” of retired Australians) and Marion Baird calling for a paid maternity scheme to be introduced.

Paul Maley (The Australian): Covers Brendan Nelson’s reaction to the summit so far. The story seems to want to put words in Nelson’s mouth a bit; probably the defining quote from the Opposition Leader on it all is the following:

“It’s a bit of a schmozzle, but I think there’s some method in the madness.’’

Mike Steketee (The Australian): Covers NAB Chief Executive Ahmed Fahour’s idea for a special loan fund used to provide loans to those normally excluded from sources of finance. This one sounds like an idea that is going somewhere, particularly in the context of Australia’s indigenous communities.

‘Legalise all drugs’ AAP (The Australian): GP Wendell Rosevear had some guts throwing this one out there. Bound to be a magnet for populist criticism, but I think there might be something in the concept of introducing a new category of “illegality” for people with the misfortune to have become addicted to drugs.

Samantha Maiden and Christian Kerr (The Australian): Covers (unsurprisingly given that this is the Murdoch Press after all) Westpac Chief David Morgan’s call for the abolition of inefficient state taxes. Hard to disagree with this assessment:

Dr Morgan backed a major review of tax. “We are paying a very heavy cost for fragmented, unharmonised, duplicative inefficient arrangements between state and commonwealth governments,” he said.

Sian Powell (The Australian): Covers the Prime Minister’s big idea of a one-stop “parent and children” centre from the perspective of a suburban mother.

Stuart Rintoul (The Australian): Takes a look at indigenous issues, including former Federal ALP President Warren Mundine’s strenuous objection to the formation of a publicly funded aboriginal body to replace ATSIC. Brendan Nelson’s views on this were similarly scathing, although the formation of such a body does still remain ALP policy.

Patricia Karvelas (The Australian): Covers Tim Costello’s view that the government should act as a guarantor for struggling renters attempting to buy their own home. We really do need to end the new and destructive Australian divide between renters and owners.

Mike Steketee (The Australian): Steketee for one seems generally upbeat about the summit.

George Megalogenis (The Australian): On the other hand, we have George, who is perhaps the most brutually pessimistic of the mainstream columnists I have read, excepting of course the usual suspects.

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