Law – Strategy – Policy

Section 44: submission regarding proposed amendment of the Commonwealth Constitution


Today I lodged a submission into the Commonwealth Parliament’s Joint Standing Committee on Electoral Matters Inquiry into matters relating to Section 44 of the Constitution. Here’s what I submitted:

I write regarding the following Terms of Reference for the Committee’s inquiry:

C. Whether the Parliament should seek to amend section 44(i) (for example, to provide that an Australian citizen born in Australia is not disqualified by reason of a foreign citizenship by descent unless they have acknowledged, accepted or acquiesced in it);

D. Whether any action of the kind contemplated above should be taken in relation to any of the other paragraphs of section 44 of the Constitution, in particular sections 44(iv) and 44(v);

It is my strong view that for the Parliament to seek to amend the Constitution as contemplated in these Terms, absent any other proposed amendments, would constitute a self-serving exercise by Australia’s political elite.

The Australian Constitution, venerable as many hold it to be, contains significant flaws in need of correction.

I reject the pragmatism of incremental change. Two of the last three amendments to be passed, in 1977, were concerned with, in effect, amending the terms of employment of those exercising power on behalf of Australians, namely Senators and judges. The third expanded the franchise to citizens in Territories.

Australians have not been asked to contemplate any significant change to our system of government in decades, if at all since Federation. ‘Minimalist’ republicanism simply does not rate as ‘significant’. Indeed, the 1999 referendum is a study in the failure of adherents to the incremental change mantra.

We need a Constitution that establishes an Australian state free from legal shackles to its imperial heritage: our Constitution should be an act of its free peoples, not an Act of the Parliament of the United Kingdom. Our Head of State should be one of us, and the position held by that person ought to be what we acknowledge as we pay respect to the law on entry to a courtroom.

Our Constitution must include a Bill of Rights, because we have seen in the Northern Territory Intervention and the suspension of rights under the Racial Discrimination Act 1975 what happens when rights are merely legislated.

Our Constitution must pay due respect and regard to the original legal systems that applied in Australasia, the systems of its First Peoples.

It is in the context of these significant opportunities for constitutional reform that our leaders ought to contemplate a re-ordering of government in our country to deliver a 21st century approach to health and education responsibilities, so that we no longer suffer through buck-passing and waste.

We ought to ask ourselves whether the majoritarian cartel that is a consequence of our current representative system, founded in the Constitution, is delivering the quality of governance we deserve. Perhaps the growing disjunction between Government and Opposition and the electorate at large is a product of the fundamentally flawed pretence that mass parties can adequately present unified perspectives to electors all-too-aware of their internal divisions.

In short, Australians should have a thorough discussion about a new Constitution.

Not because its entirely broken (although parts of it certainly are), but because we should aspire to higher ideals of democratic representation rather than settle for the status quo just because it’s easier.

If amending section 44 forms part of a more comprehensive package of constitutional reforms, all well and good.

But presenting such an amendment, which only serves those who contemplate a political career, while failing to present any amendments that would deliver meaningful, positive change in the lives of many Australians is self-interest in leadership’s clothing.

Democracy in a state like Australia

(Well, France’s democracy is a bit like Australia’s, isn’t it?)

Because I’m me and I live in Australia, which some have touted as one of the world’s most stable democracies, when I consider the form the state should take I tend towards a democratic state. Maybe if I’d ever experienced a benevolent autocracy I’d have a different opinion, but I haven’t so I don’t.

‘Democracy’ is contested ground, though, and we need to be sure what it is we mean when we use it. Returning to some fundamentals is essential if we are to conceptualise the ideal towards which we should be heading. Surely no one suggests that the form of democracy we endure in Australia today is that ideal form. To assert the contrary is would mean that Indigenous incarceration rates are a bi-product of our ideal democracy, for example, or that Australia’s position on carbon pollution pricing is an ideally democratic outcome.

Let’s adopt a pretty basic approach as our starting point: democracy in 21st century states manifests as the right to have an indirect role in determining the laws that govern those states by exercising decision making power about whether to vote and, if so, who to vote for.

If exercising this right results in an attempt to vote (regardless of the validity of the attempt), this decision at the very least implies acquiescence to the laws that result from any government elected. Our votes legitimise the electoral process and are evidence of our endorsement of the manner of state apparatus we employ and those we elect to operate that apparatus.

This is as close as we actually get to an active representation of the social contract. It is, though, an active demonstration of acquiescence to the chimera that we voluntarily agree to receive the benefits of a state so long as we accept certain obligations as a result.

This act of individual decision making power is enough for those inclined to do so to extend the language of democratic rights to democratic duties.

The argument goes that if, for example, the rule of law is a defining principle of our democracy, and the right to trial by jury a defining principle of our criminal legal system, then it is reasonable to extend the proposition of jury duty as a democratic duty. By exercising our basic democratic right to vote in an election we, at the very least, impliedly endorse the imposition of this duty, regardless of whether an individual compelled to so serve themselves endorses those principles or the laws that result from the state that governs them.

Furthermore, we are compelled to observe the civic duties imposed upon all of us equally regardless of our relative privilege to affect the laws to which we each are subject or indeed to even know the extent of those laws.

You may be privileged enough to enjoy more than the indirect role of lodging your vote, but at its most fundamental this is the only decision making power that our states guarantee us as citizens. We each have differing levels of capacity to involve ourselves more deeply in some level of democratic decision-making, and we do not each have the same privilege that permits us to influence or decide at the highest levels.

There are many who would argue that we do a great deal to empower citizens and increase participation in deliberative processes, community consultations and the like, and that’s entirely true. This notion of ‘participatory democracy’ is one where we all get to participate in influencing decisions and it sounds great, and it is great, but it is still an exercise in relative privilege.

The circumstances into which we are born can be enough to make the difference.

The manner in which we have obtained the knowledge we claim is itself open to dispute and those disputes offer those inclined to do so another opportunity to exclude. What constitutes ‘life experience’ can be the subject of an argument itself, let alone the relative merits of any ‘life experience’ against ‘book learning’ (which again, is of contestable value such as the relative value of a degree from one university over another).

The labour we must dedicate to alleviating crippling net debt to income ratios may be a significant constraint on how willing or able we are to participate in community forums on the future of the local shopping precinct, let alone provide a written submission to a Senate inquiry.

The Director General or Secretary of a government department has multiple opportunities every day to influence or direct the decision making authority of the state. An eighteen year-old former ward of the state recently released from juvenile detention has no such opportunity.

But our democracy, built on our equal votes, is not founded on recognition of our varying circumstances (other than our citizenship) and does not demand of us ‘participation’ beyond our vote.

Those who govern impose laws and use the lawful violence of the state, or the mere threat of such violence, to compel compliance. In 21st century democracies the legitimacy of the state the apparatus of which is effectively operated by far less than 0.1% of its population on any given day is derived from nothing more than our attendance at a ballot box and the tallying of numbers.

Fifty per cent plus one is the magic formula, and it’s a formula in which every individual unit is assumed equal by virtue of their status as an individual human. In almost every other aspect of our society we see that individuals are not equal, and yet when it comes to determining who it is that will create laws to which we are all subject suddenly equality is assumed.

I would hope that whatever our ideal of ‘democracy’ is, it’s more than this. Surely our obligation to ensure that the least privileged in our society are not unfairly discriminated against as a result of democratic decision-making demands more than that we ‘consult’ with them before we pass laws to their detriment.

Perhaps the notion of democracy demands more of our society than this simplistic, immature numbers game. If we recognise that some interests are more privileged than others, more capable of influencing decision making, perhaps this ought to be recognised in the calculation of our votes. Perhaps the votes of those whose capacity to influence is significantly less than others ought to be given more weight, a form of ‘horizontal electoral equalization’ based on privilege.

If a democracy is to avoid entrenching disadvantage on an intergenerational basis, surely it must recognise relative privilege in the essential, for many only, decision-making process that defines it as a democracy. Yet our system does quite the opposite. It is designed to favour some interests over others, and deliver disproportionate benefits to those favoured few. It is an imperfect democracy with little evidence at hand to suggest any significant movement towards a more ideal form.

Australian realism and the Anglosphere: five eyes to turn blindly

The keyboards got a solid workover this weekend as News Corporation journalists and columnists found themselves receiving a concerted scolding from online commentators across the country. Yes, yes, these bloggers are people generally poorly disposed to News Corporation at the best of times, blah, blah, blah, bias, blah.

The point is, they’re giving the Australian in particular a serve because that newspaper has clearly upped the ante on the election campaign that starts today. Well, I can’t be the only one that thinks that’s the latest date on which we could say it’s starting. Possibly it started with the hospitals and health stuff.

A couple of writers who go by the names of Ad Astra and Bushfire Bill, who I find altogether enjoyable to read, have very good lines going in critical analysis of the editorial slant of the Australian pertaining to the domestic political scene. Often I don’t much feel like writing about current Australian political issues simply because there’s such a lot of commentary about that I think’s pretty good. Check out these guys in particular on The Political Sword.

But a couple of articles in the last Weekend Australian caught my eye, and they’re vaguely related to domestic politics and this analysis of the Australian, so I thought today I might bring the issue involved to your attention.

If you’ve been studying international relations at all (as a discipline, that is) you’ll be familiar with the notion of realism in the analysis of such relations. Henry Kissinger was quite a famous realist, although his realism would probably go so far as to say ‘Don’t bother me with your theoretical framework for my approach, I’m far too busy fixing the world.’

I reckon Greg Sheridan would probably consider himself a bit of a realist. Maybe he’ll correct me. I reckon if pushed, Tony Abbott would like to describe himself as a realist, with respect to international relations at least. And the recent Four Corners program about Tony Abbott described Greg Sheridan as a long term friend or something similar.

Last weekend, Greg Sheridan wrote a column about a speech delivered by Tony Abbott on foreign affairs. He was pretty glowing it has to be said, which probably surprises precisely no one. But there was one point that Sheridan picked Abbott up on.

Abbott had referred to the ‘Anglosphere’ of which, he says, possibly accurately, Australia is a part.

Sheridan’s criticism wasn’t that either this construction or reference to it is anachronistic. He just said that, accurate a portrayal as it might be, we really shouldn’t use that term because it might offend the Indians, the Chinese (or, conceivably, any countries outside the Anglosphere. Like France, I guess).

That’s Australian Realism for you. Act on the basis that we’re part of an English speaking coalition against, or at least vis-à-vis, the rest of the world, but don’t fess up that that’s what’s going on for fear of losing customers and influence. And this isn’t for one second an IR alliance restricted to the relationships between states, it’s an alliance of corporations as well. Like News Corporation.

The thing about realism is that its adherents like to pretend that they’re simply acknowledging objective truths about relationships without becoming advocates for any particular courses of action, other than the most realistic in any given set of circumstances of course. That’s why it’s possible that these two might say they’re not realists at all, but openly confess to being neoconservative on international relations. That is, they may actually have an ideological framework for their belief in and support for the Anglosphere as a discrete – and I mean that in every sense – unit of international governance.

The thing is, the best way to keep secrets like this, if they must be kept, isn’t by broadcasting your disagreement about publicizing its existence through the pages of the national broadsheet. If Sheridan and Abbott are really long-term friends, and if they really cared about the potential impact of this attitude on our international relations, surely the former would have simply had a quiet word in the latter’s shell-like? Or should that be sow’s?

Note to Greg Sheridan: Have a word with your colleagues, will you? An article in the very same edition of the Weekend Australian on escalating rates of violence in Australia made a variety of points by reference to trends in the Anglosphere. Probably advisable to get your own house in order before dishing out gratuitous advice to others.

Fixing what ain’t broke: the inherent good of reform

For a while I’d been trying to convince myself that I could write about constitutional reform in a general sense and move on to specific arguments later. But then Tony Abbott reminded me of the time that the phrase ‘If it ain’t broke, don’t fix it’ really started to get my goat.

You see, this is a nonsense axiom.

The notion that humans should only fix what is broken stands in the face of some of the most wonderful of inventive leaps our species has made. I’ll illustrate with what seem to me to be a couple of stand out examples.

What was it about the way homo sapiens lived that was ‘broken’ and which led to the invention of the wheel? Sure, it’s easy in hindsight to say that the wheel clearly made life better, but that’s not the point in this argument. Making life easier, or better, isn’t the criteria, it’s fixing something that’s broken.

Was candle-power a ‘broken’ way of providing light? In order to really come to terms with this we have to try and conceive of how people felt about those prior ways of life in which only a handful of people conceived of the possibility of change. Did our great-grandparents think that the horse and carriage was a ‘broken’ mode of transport?

What about how humanity conducted its affairs was ‘broken’ that was later ‘fixed’ by space flight?

We’re often told that some of the great inventive leaps have resulted from defence industries, which leads to the question – particularly since World War Two – what was ‘broken’ about the way we kill each other? What’s broken about that now? Isn’t it the case that defence industries are still working at better ways to kill people?

Tony Abbott forms part of this argument because he used the axiom to devastating effect in the constitutional reform debates of the 1990s. It was one of those clichéd phrases which form part of his apparently superhuman power to ‘cut through’.

The problem (or at least one of a few problems) faced by the republicans at that time was that they denied themselves the obvious and critical repost: the Australian Constitution is broken. They could have made the argument, implicit from the above examples, that we as a species don’t and have never only fixed things that were broken. We’ve sought to improve our lives for the sake of the improvement. We’ve made inventive and creative leaps because we can, not just because we must.

But republicans didn’t even get that argument going particularly well, and in any case it’s a little hard to see how the minimalist approach could be perceived as reform that would ‘improve’ our lives in any meaningful way.

Even worse, by pursuing a minimalist agenda which merely changed the names on the letterhead and redirected the mail, the Australian Republican Movement gave us no reason to change. Constitutions are, after all, pretty important things. Symbolism doesn’t really get us there in terms of a need for change.

The glaring, slap you in the face and steal your lunch money problems which come with a nineteenth century constitutional model that was out of date 50 years ago are real and have daily repercussions.

Like the complete absence of the language of rights.

Or the… messed up division of responsibilities between the Commonwealth and State governments.

Health reform, anyone?

Political radicalism in Australia is so hamstrung by some weird combination of a belief in incremental change and an inability to forcefully argue the need for radical change that we’re left in a limbo land where it’s apparently OK to concede that a constitutional bill of rights is unlikely to be successful at a referendum and to, from there, rationalize that we don’t really want constitutional rights anyway.

As if in forcing the Northern Territory Intervention on Aboriginal communities the Commonwealth government’s suspension of legislative rights flowing from the Racial Discrimination Act didn’t actually happen. Wasn’t it a good thing that the Commonwealth stepped in to ‘fix’ that?

But I guess the existence of those rights, and the ability of people to rely on them to ensure that they were not subject to discrimination, must have been at the heart of what was ‘broken’ about the broken lives of Aboriginal people in the Northern Territory.

Good thing our parliamentarians are able to tell us what’s broken about our houses, even if they refuse to do anything to fix their own.

Private surveillance

In the light of suggestions that Japanese whalers have, through a third party, hired aircraft to conduct surveillance on anti-whaling group Sea Shephed, the ABC reports that Deputy Prime Minister Julia Gillard is seeking legal advice on the issue.

Professor Don Rothwell has already said, though, that there seems little recourse under existing law to stop Australian airspace from being used in this way.

Now, maybe some people would prefer that such activities not be conducted, and see something sinister at play. They may be right.

But, then, a broader question arises concerning private surveillance generally.

The issue appears to be whether or not a private person, in this case in the form of a corporation or other entity, should be able to use private resources to undertake surveillance of persons they feel may act contrary to their interests. In this case, such surveillance probably wasn’t as covert as it sometimes can be: it’s pretty hard to see how civil aircraft circling the Southern Ocean could be effectively concealed.

If we’re really worried about such private covert surveillance, though, surely such concern should extend to a whole range of ways in which private persons engage investigators to covertly monitor the activities of their competitors, their former spouses, and for any number of other reasons. If we’re going to draw a line on such activity, where should it lie?

WA Labor’s new strident approach on stop and search powers


In an earlier post I criticized the law and order trend of successive Western Australian State governments and Local Government Authorities to ever harsher policing powers, from the expanding surveillance of citizens to the proposed police powers to stop and search any Western Australian who seeks to enter certain events or public spaces. That post was subsequently republished on Larvatus Prodeo, with an ensuing engaging discussion by visitors to that site.

One of the comments was a pointed observation that I had omitted any reference to the Labor Party. Indeed, I replied, it didn’t mention any specific parties.

The fact is that I haven’t always been impressed with the approach of the Labor Party on ‘law and order’ issues. The initial statement by Eric Ripper that Labor had sought to introduce similar measures, I’ll concede, was one I found less than inspiring.

However two recent excursions by Shadow Ministers into the field have given me fresh hope.

A story in the West Australian on the 28th of October covered comments by Shadow Minister for Police Margaret Quirk:

Shadow police minister Margaret Quirk called on the Government to address causes of crime rather than continually resorting to harsher penalties. The Government recently announced a range of measures to curb alcohol- related violence in Northbridge.

“I think the focus is very much going hard on the offenders, and while that is legitimate the overall focus should be on there being fewer victims,” Ms Quirk said. “You need a much more complex approach to law and order.”

She said cutting money from the office of crime prevention and a reduced focus on education campaigns hindered the battle against increasingly violent attacks.

“It’s no consolation for a victim to have the Attorney-General and the Minister for Police waving their finger at the offenders after the event,” she said.

This line of argument is, while cast within the continuing frame of a law and order debate, at least getting closer to some of the concerns raised in the discussion on Larvatus Prodeo about root causes. I hope to write some more about that at a later date.

It has been followed up by recent comments by Shadow Attorney General John Quigley regarding the proposed stop and search powers (with thanks to the Western Patriot – hard to get access to the Perth Voice over here):

Mr Quigley told The Perth Voice that the new powers are, “extreme laws giving unheralded powers to the commissioner of police, the likes of which you would only see in a fascist or totalitarian regime.”

Combined with mandatory terms of imprisonment for assaulting police officers, these new laws significantly erode the rights of individuals against the State.

Mr Quigley told The Perth Voice that the State Government could “get away with [it] by…inducing the people of Perth to believe they are living in the most dangerous city in the country, or the western world, and it is just not true.”

This is a distinct and welcome shift in approach from the previous statements by the Opposition Leader. Although the rhetoric might be a bit stronger than I’d use, it represents a strength of resolve on the issue that we should embrace.

Of pimps, prostitutes, dealers and freedom

In an earlier post I briefly discussed the issue of civil rights in Australia, particularly as to how we justify infringing rights in order to deal with specific segments of society. It’s a distinctly worrying trend, but when the decision of the Western Australian government to grant police the power to stop and search citizens without reasonable suspicion of wrongdoing is cast in terms of ‘cleaning-up the streets’ to the benefit of ‘decent families’, as opposed to violent thugs, it’s pretty hard to say ‘Hang on a minute’ without being accused of being with the terrorists.

But… hang on a minute.

The trend in Western Australia, and Australia generally, should be alarming its citizens. This isn’t just about physical intervention by police forces, but an active campaign of intimidation designed to inculcate a compliant population.

And it appears to be working.

As of 2004 Perth was home to the largest single closed-circuit television surveillance system in Australia. CCTV isn’t about catching crooks; its advocates argue that it is meant to act as a deterrent to crime. Much could be written about the value of deterrents in criminology, but let’s skip that for now. In this instance, deterrence can only mean one thing: intimidation. CCTV exists to intimidate citizens into obeying the law. As does the newly increased use of sniffer dogs in police patrols through the city.

But which laws?

It’s all very well to say that many of the current laws are beneficial, serve to reduce violence and theft and so on. There are some laws, though, that really only serve to modulate society. Laws about littering or spitting, skateboarding or busking. Intimidatory surveillance is intended to promote fear of prosecution for all unlawful activity regardless of the social merits of the laws that may be broken, laws the passage of which is frequently the result of political maneuvering that may diminish or devalue the interests of minority communities of interest. When we introduce systems of intimidation they serve to enforce a societal rigidity, which arguably makes people more compliant and willing to accept subsequent, more interventionist laws.

Like stop and search powers, for example. The Western Australian government has introduced legislation which would enable police officers to stop and search any citizen without the need to rely on a reasonable suspicion of wrongdoing. I guess it’s good that laws which increased the penalties for assaulting a public officer were passed before these new laws: readers can judge for themselves how likely it is that levels of violence against police will increase as a result of being physically searched for no apparent reason other than that an officer doesn’t like the cut of a person’s jib.

These powers are not, as some might suggest, the thin edge of the wedge. Western Australia’s legislators have hammered the thing in a good couple of centimetres already.

The problem remains, however, that the people that such laws are intended to be used against are actually bad people. I know there’s a whole bunch of romanticism in Australia associated with some criminal organizations, and I also know that drug laws in Australia are not sufficiently effectively enforced (if they ever could be) and so there are people (‘entrepreneurs’?) who are essentially just taking advantage of those circumstances. But let’s not forget that there’s a very high degree of human misery involved in the trade in which these groups so violently peddle.

It makes a bit of a mockery of concern for civil rights that the most ardent advocates for their preservation have such obvious and unabashed links with these interests. And if the only other voices raised against this progression towards ever increased surveillance and intervention are lawyers whose income largely comes from defending crooks, it’s going to continue to be pretty hard for the trend to be slowed, let alone halted or reversed.

Who from the not-tainted-by-association could or would take a stand on these issues? Until our parliamentarians hear it from the socially pure, it is virtually inevitable that future legislation will become increasingly harsh. If the current advocates, let’s be generous and call them ‘rights campaigners’, really want to make an impact, they need to start broadening the base of supporters of and advocates for their cause.

In Australia, they came first for the terrorists… or, why don’t Australians care about rights?

Somehow it doesn’t quite have the same ring, but the sentiment behind the famous poem by Pastor Martin Niemöller (with apologies go to the deceased Pastor) about effects of the rise of Nazism in Germany on their political opponents and societal enemies appears to be driving criticism of enhanced police powers in parts of Australia.

The suggestion is that the progression in infringement of rights starting with suspected terrorists, followed by allegedly corrupt public officials, allegedly corrupt trade unionists, and now sought to be applied to organized crime (principally outlaw motorcycle gangs) is an ever-thickening wedge of which all right-minded Australians should be afraid. Here’s a couple of example from Australian bloggers.

Dave Stanford is pretty measured in his call for ‘ordinary Australians [to] examine government policy proposal with a critical eye and with thought to the potential consequences of such policy responses.’

The blogger known to me only as ‘Oz’ reported, and appears to agree with:

‘A related criticism, raised by the Greens, the Law Society of NSW and the NSW Council of Civil Liberties is that there’s nothing in the legislation stopping any cultural, social or political organisation being proscribed as illegal and thus banning members from associating.’

He (see Comments below for gender-confirmation) goes on to cite Jack the Insider’s ‘frustration at “how quickly Australians meekly acquiesce to the loss of these freedoms”’, agreeing that ‘We are pretty meek.’ In comments on the relevant article on his blog, Jack the Insider says ‘I know the thin end of the wedge arguments can be a bit tedious but…’ Quite.

Meanwhile, perhaps the most strident ‘who’s next’ line of argument I’ve seen comes from Nathan Hondros of the Western Patriot, who on the 19th of June wrote:

‘Don’t believe the lie that this is just about “bikies”. It is not. These laws will affect every one of us in ways it impossible to predict. It will give powers to the State that belong to regimes like North Korea, Burma or Iran. This legislation would be impossible in any nation with codified protection of human rights, such as the United States, or even the Hellenic Republic.’

I agree that many of the provisions of the respective regimes are authoritarian, but what all of these critics fail to do is come up with any vaguely reasonable suggestion as to which Australians other than alleged criminals will be affected by the infringement of asserted common law rights, some of which really have only ever arguably existed in Australia to begin with. Are they afraid of religious or political persecution? These seem to be the most obvious potential abuses, yet these four commentators at least are not so specific.

Basing a pro-rights argument on the defence of the rights of those that are widely accepted to be engaged in pretty nefarious activities, in my view, diminishes the weight of the argument of rights advocates. We end up with the somewhat twisted outcome of alleged organized crime figures as some of the strongest advocates of the introduction of a Bill of Rights. Does that really advance the cause?

Don’t get me wrong: I like human rights, I wish we had them. We don’t, and if you want to know why I’ll try to explain it in future posts. I think they’re vitally important, in desperate need of promotion and defence and in all other respects worth fighting for.

I’m just not convinced that human rights have ever innately existed. Given what we know about the ways that human beings have treated one another over thousands of years, including on the basis of religious strictures from which these rights supposedly derive, I find it much more credible to suggest that the majority of humanity finally found a means by which to express their exhaustion at – to appropriate a phrase – man’s humanity to man. The elucidation of human rights in the 20th century, then, is not a declaration of rights inherent to humanity but a declaration of the intent of many people to demand them.

Maybe that’s a bit of a dark view, but it’s important to recognize the implications of it for how we argue for rights in Australia and the world more generally in the 21st century. If rights are inherent to humanity, as many argue, then aberrant conduct that infringes these rights can be described as inhuman. We can dismiss that conduct as deviating from standards that are universally accepted. The outrage, so the argument goes, is that a person or people would consciously choose to act contrary to these universally accepted norms.

That’s a fair bit easier to argue than the proposition I’m advancing, because it constructs human rights observance as the norm. My view is that part of the reason we see rights infringed so regularly is that we still haven’t won the argument that these rights are universal, we haven’t convinced a sufficiently large number of people that we should all abide by these still-new, historically speaking, rights. If this is indeed the more accurate analysis of rights in Australia, then what we should be arguing about is whether or not law-abiding citizens should enjoy rights that do not now exist, rather than whether or not alleged criminals should be protected from the infringement of rights that do now exist.

This analysis leads to a number of sets of questions that I’ll look at in later posts, such as:

If we don’t have rights as such, what types of protections do we nonetheless enjoy in practice? If we already have these protections, how strong are they and do we need them to be augmented by rights?

Where we do not have other forms of protections on matters which might be protected by rights, do we really need protection? What is the real danger or threat posed in regard to these matters?

Ultimately, can a scheme of rights really protect individuals from their infringement by the modern state?

Are rights considered differently from the perspectives of adherents to parliamentary sovereignty and popular sovereignty respectively? What are the implications of these differences on the debate over whether we should adopt a legislative or constitutional Bill of Rights?

More on these questions and others in future posts.