Alcoholics australis and twinkle-toes Barry O’Farrell

Aided and abetted by the media, a maelstrom of public discontent has emerged in the last fortnight in response to the tragic Kings Cross killing of Daniel Christie. The furor has been so potent that even New South Wales Premier Barry O’Farrell has been forced to do something, this week announcing a “tough and comprehensive” package [PDF] of reforms targeting alcohol-fueled violence in the Sydney CBD. Parliament is to be recalled early next week to pass the package, and with Opposition Leader John Robertson offering broad (if qualified) support for the measures, it seems that inertia-stricken New South Wales is about to experience an extremely rare legislative phenomenon: reforms demanded by the public being magicked up by a government one week and becoming law the next. Evidence-based policy-making at its finest, of course.

The package of reforms already has some high profile critics who have exulted in sticking their heads above the politically correct parapet. The Australian Hotels Association has challenged the logistical sense in effectively locking up drinkers in pubs and clubs from 1:30AM and then throwing them all out together in a flood onto the streets at 3:00AM. There’s some vested interests there, yes, but also a pretty damn sensible point. Contrastingly, Labor’s John Robertson has decided to take Laura Norder out for a few drinks in arguing that the package is not tough enough and not comprehensive enough:

The Government’s announcement is one that I welcome and one that it’s pleasing that finally we’ve seen them act. But it is an announcement with loopholes. We have lockouts with loopholes, where small bars will be exempt from lockouts, backpacker bars will be exempt from lockouts, and hotels with bars will also be exempt from lockouts.

In other words, if you want to be drunk and anti-social and violent until all hours after the O’Farrell Government proposals have been passed, all you need to do is pick the right venue in the right inner Sydney precinct. Sure, you can agree or disagree with Robertson’s overall stance on the issue, but you can’t deny that he too has a point there.

News Limited’s David Penberthy has offered his usual “boofhead libertarianism” schtick in response. The shorter Penbo: don’t blame alcohol, blame the idiots who get violent after a few drinks: you and me are entitled to get pissed as much as we want so long as we don’t “coward punch” anyone. This is the kind of mentality I would ordinarily expect to find at the bar of an RSL after (yep) a few drinks, not splashed all over the HTML and news print produced by Australia’s largest media company. But then I remember that this is News Limited we are talking about, and that by definition, even companies touting cow manure have a target market.

There are some other problems with the package of reforms worth rattling through (have a look at Kimberley Ramplin’s no holds barred skewering here). As several high profile lawyers have argued, mandatory sentence regimes tie the hands of judges, increase the risk of unfair judgments being made, and have been shown not to significantly deter would-be perpetrators. Closing bottleshops at 10PM is hardly going to stop people who want alcohol from obtaining alcohol or stop people from “king hitting”, “coward punching” or otherwise attacking other people. The introduction of free buses running from Kings Cross to the CBD arguably risks drawing disparate groups of drunken punters together in a confined area, increasing the likelihood of conflict. The freeze on new liquor licenses for pubs and clubs simply blindly favours existing establishments over those that new entrepreneurs seek to start – and for what end, exactly?

Daniel Christie’s death was tragic and sadly, Barry O’Farrell’s response so far has been as well. This package is a knee-jerk “tough on crime” grab bag of nonsense measures designed to appease the media whilst completely avoiding the underlying problem. Let’s cut to the chase: Australia has some serious issues with alcohol. Alcohol consumption nationally might well have trended down in recent years, but this is not a short-term problem: we have had some serious issues with alcohol as a nation for decades. Australia is far from alone in having these issues, of course, but arguably we do stand alone in our stridency: drinking beer has been craftily transformed by local liquor marketeers into a bonafide patriotic act, to the extent that we even commemorate great feats of beer drinking (take a bow, David Boon and Bob Hawke). Not getting pissed? Unaustralian. Not impairing your decision-making on a night out? Unaustralian.

The World Health Organisation asserts that alcohol is directly responsible for 2.5 million deaths per year and is the world’s third largest risk factor for premature mortality, disability and loss of health. The cumulative effects associated with prolonged alcohol use according to the National Health and Medical Research Council (NHMRC) include cardiovascular disease, cancer (particularly oral but also liver, colon and breast cancer), diabetes, obesity, and cirrhosis of the liver. The NHMRC also suggests alcohol is second only to tobacco as a preventable cause of drug-related death and hospitalisation in Australia. In truth, it is impossible to quantify the true impact of alcohol abuse but if you factor in its involvement in car accidents, domestic violence, broken families, stunted development, marriage breakdowns, gambling losses, the development of psychological disorders, and yes, the occasional “king hit” outside pubs, it starts to become pretty significant. In the last two decades, Australian governments have successfully made tobacco the bete noire vice of Australian society, to the point where smoking is on the brink of eradication. The near eradication of alcohol abuse if not use is surely a desirable goal from a society POV: do we have the foresight to legislate to make alcohol Australia’s bete noire vice for the next two decades?

Alcohol, to pickpocket Karl Marx, is modern Australia’s opiate of the masses. It is an opiate that the red-blooded Australian man, in particular, will be loathe to ever let governments attack, despite the widespread trauma its abuse can cause. Liberal Australians as one have marveled at the stupidity of Charlton Heston’s infamous stubbornness on gun laws, but that tenth schooner of beer? It will quite literally only be taken from our cold dead hands.

UPDATE: Michael Pascoe adds his own brutally scathing comments on O’Farrell’s reform package in the SMH.

On killing the killers

Like Foreign Minister Stephen Smith, I have nothing but contempt for the Bali bombers, but I don’t support state-sanctioned murder. I therefore welcome his announcement today that Australia would in the near future sponsor a resolution in the United Nations General Assembly calling for a moratorium on capital punishment.

On the other hand, the announcement does raise a couple of pertinent questions. Firstly, was it a calculated decision for Smith to make this announcement immediately after the executions, rather than beforehand? Could it be that Smith was concerned about the political consequences if his anti-capital punishment stance happened to result in a stay of execution for the Bali three? The only credible moral stance opposing capital punishment is to condemn it in all circumstances, at all relevant intervals. It is hardly a convincing moral stance for Australia to strongly oppose capital punishment when it comes to their own sons and daughters or when politically convenient, but to support it otherwise.

Secondly, is it realistic to think that another call for an international moratorium on capital punishment in the UN General Assembly is going to achieve anything, given how many countries still support it? A similar moratorium to the one that Smith describes was passed in the UN General Assembly in 2007 – a historic occasion to be sure, but it is unclear what the next progressive step forward is on this issue. 104 nations supported last year’s non-binding resolution, with 54 nations opposing. The nations that did oppose the resolution pretty much all fall outside of what John Howard would probably term the judeo-christian tradition (e.g. the United States being the main glaring exception), so one wonders whether there is a cultural aspect to this issue that the world’s more “western” nations need to find a way to overcome. It’s probably worth listing out, once again, the company that the United States keeps on this issue by continuing to support capital punishment:

Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Botswana, Brunei Darussalam, Chad, China, Comoros, Democratic People’s Republic of Korea, Dominica, Egypt, Ethiopia, Grenada, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Libya, Malaysia, Maldives, Mauritania, Mongolia, Myanmar, Nigeria, Oman, Pakistan, Papua New Guinea, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Solomon Islands, Somalia, Sudan, Suriname, Syria, Thailand, Tonga, Trinidad and Tobago, Uganda, United States, Yemen, Zimbabwe.

I wonder what Barack Obama’s thoughts are on his nation’s membership of this exclusive club of forward-thinkers.

This year Amnesty International has already announced it is seeking a reiteration of the moratorium, and makes the case against capital punishment in a quite compelling fashion here. They note that 60 countries still have capital punishment enshrined within their legal system, with 24 of these countries actually conducting acts of capital punishment in 2007. At least 1252 people were executed by these countries last year.

Unfortunately we don’t have statistics on how many of these 1252 people executed were innocent, or else now truly understand the grievous error of their ways. We also don’t have statistics on the number of relatives and friends of the executed who have also been emotionally punished, through no fault of their own.

Would the legal system in Australia be improved by a Bill of Rights?

I would imagine that if one surveyed the community of practising lawyers in Australia one would find that a majority favour the idea of a legislated bill of rights. The reasons for this are no doubt legion; some lawyers no doubt feel that legislating a bill of rights would enshrine in law certain inalienable privileges that all individuals in our society should be entitled to. These privileges are not explicitly legislated and are therefore open to fairly broad judicial interpretation. Other lawyers are probably a bit more interested in the financial aspects – the prospect of an Australian bill of rights does lend itself to the possibility that a slew of claimants (some valid, others not so) would swiftly proceed to emerge from the woodwork, asserting that their rights have been infringed. Victoria and the ACT are ahead of the game on this topic; having legislated bills of rights in their respective jurisdictions.

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.

Do Australians favour the constitutional status-quo?

What seems to be the immediately obvious answer to this question is “yes”; as most readers are likely aware, just 8 of the 44 (around 18%) referenda initiated to amend the constitution have succeeded in the history of the Australian federation. It also seems to be the answer favoured by James Allan, a Professor of Law at the University of Queensland, who is concerned that the Rudd Government has stacked the composition of the “Australian Governance” group at its 2020 Summit with potential constitutional vandals. Listing “bill of rights scepticism” as one of his primary research areas of interest, and asserting his delight at having moved to a country without a bill of rights (he was born in Canada), Allan notes has a few predictions about what the group is likely to come up with based on its composition:

There’ll be calls for a bill of rights. There’ll be calls for Australia to become a republic. And such authoritative calls could prove mighty useful down the road, especially if that was what you wanted before you started this little charade. Of course, when we play this game, we would have to concede, were we honest, that the group we had assembled was nowhere near being representative of the views of Australians as a whole.

Whenever Australians have been asked, they have recognised that the constitutional status quo is, as I noted above, comparatively excellent. But with any luck we can finesse that uncomfortable truth.

But do Australians really generally think that the constitutional status quo is excellent? Not to the extent that one would think based on the statistic I mentioned earlier, as it turns out. The infamous “double majority” provision that requires that a referendum be supported by a majority of the states (four of six) and a majority of voters in a majority of states acts as an arguably undemocratic obstacle preventing constitutional change. In actual fact, over the history of referenda, the average national “yes” vote is 50.28%, with the median “yes” vote sitting within reach of majority share at 48.84%. Five failed referenda, in particular, would have been passed on majority national vote if the double majority provision was not enforced. In another nine failed referenda, the supporting vote was over 49%, and three or more states voted in majority support.

With respect to a future Australian republic and a possible national bill of rights, there is also some reasonable evidence suggesting that a majority of Australians (or at least more than those in outright opposition) support constitutional change in each case. A deliberative poll was conducted as part of the process when the ACT enacted its bill of rights, with 47.3% of people polled in favour of the proposal prior to deliberation, and 58.6% after. Similarly, Newspoll [PDF] results over the last ten years point consistently to the fact that more Australians support the idea of Australia becoming a republic than oppose it.

In short, despite the nation’s sad history of failure to succeed in constitutional reform efforts, I don’t think it is fair to say that Australians prefer the constitutional status-quo to constitutional change. The bar for success has been set high; perhaps so high as to be occasionally impractical and in bottom-line terms, undemocratic. One thing is certain; it certainly does not hold that because something was a fantastic national document one-hundred years ago is a fantastic national document now. As a nation we should constantly be on the lookout for ways to improve the legislative infrastructure of the country. All things in human society gradually evolve – it is just a shame that this particular part of our society has been so protectively guarded from improving over the course of the last century.