Archive for the 'Federalism & the Constitution' Category

Should there be a charter of rights referendum?

In the SMH, law academic George Williams rejects the idea that there should be a referendum on a charter of rights. He says that

Referendums are held to change the constitution, and have never been to approve an ordinary act of Parliament.

I’m not convinced by this point. The Australian constitutional system is much more than just the formal document called the Constitution. It includes all the laws, conventions and judicial decisions that establish and set out the relationships between the key institutions of government.

In this broader sense of a constitutional system, a charter of rights is an important change in the relationship between the executive and the judiciary, and represents a major shift in how the rest of us consider issues covered by the charter. The substantive rights and wrongs of various issues will become secondary to the legal arguments for and against, which are often much harder for ordinary citizens to understand. The judicial decisions made are likely to lead to conclusions which majorities do not support.

In this context, a referendum is not a silly idea. It’s not like having a vote on an ETS, as Williams suggests, or any of the other issues parliament considers each year. It’s about the rules of the political game, about who gets to decide what. It is a constitutional question, even if not an amendment to the Constitution.

Will a human rights charter be popular?

The public opinion research accompanying the report of the National Human Rights Consultation suggests that those proposing a charter of rights have a tough task ahead.

These days, only bastards and people who know a little political philosophy are likely to question the whole idea of ‘human rights’ (‘nonsense upon stilts’, as the utilitarian philosopher Jeremy Bentham memorably called them). So on questions about parliament paying attention to human rights or increased education on human rights only one or two percent of respondents express opposition.

But only 7% of respondents disagreed with the proposition that human rights are adequately protected (with a large 29% not expressing a view).

Worse for the main advocates of putting general human rights into legislation or the Constitution, the public isn’t in general very sympathetic on some of the issues that are driving the human rights push in the first place. Read the rest of this entry »

Tony Abbott’s big government conservatism

Tony Abbott’s book Battlelines is part personal memoir, part Howard goverment history, part conservative philosophy, part analysis of current politics. I don’t think the whole is greater than the sum of its parts, but the parts are interesting enough.

For me, its main value is in being a relatively detailed statement of ‘big government conservatism’, from the perspective of a supporter.

Even coming after the big-spending Howard years, there are several proposals for more spending still, including teacher salaries, dental care, and yet more family spending (I laughed out loud at the sub-heading ‘how families have been forgotten’). Luckily there are also some proposed cuts, from a higher retirement age and to superannuation concessions.

Though there is an ideological element to the family spending idea, Abbott’s plausible claim that the Howard government was a problem-solving government rather than one that was highly ideologically driven also helps explain why government grew under Howard.
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Has the High Court imposed spending constraint on the Commonwealth?

In the Fairfax broadsheets this morning, constitutional law academic George Williams gives his reading of the High Court’s judgment in Pape v Commissioner of Taxation and the Commonwealth of Australia.

As readers may recall, earlier in the year UNE academic Bryan Pape challenged the constitutional validity of the government’s tax bonus payments. Unlike the whinging cultural offspring of the welfare state who missed out on it, Pape was among other things seeking an injunction stopping the ATO paying him the money.

The High Court decided against him, but as is common in constitutional cases there were many different arguments made. Williams argues that though the Commonwealth persuaded the Court on enough of these to get a verdict in its favour, comments made by the judges on their other arguments raise questions about the validity of other Commonwealth spending.

The issue here is that the Commonwealth has long spent money on things for which it has no legislative power under the Constitution. Various additional spending powers have been read into the Constitution as relating to the executive power of the Commonwealth or an implied ‘nationhood’ power. As Justice Mason put it in 1975: Read the rest of this entry »

Religion in politics

The Fairfax broadsheets this morning report on research by Anna Crabb (published in the Australian Journal of Political Science) showing that over the years 2000 to 2006 Australian politicians increasingly made reference to Christian themes, as measured by use of the terms Christ, church, faith, pray, Jesus, Bible, spiritual, God, and religion. In 2000, 9% of speeches by prominent federal politicians mentioned one of these terms, rising steadily to a peak of 24% in 2005, before dropping back down to 22% in 2006.

The empirical work is interesting, though it is difficult to sort out to what extent this represents shifting norms in political speech (as against a claimed norm of keeping religion and politics separate), and to what extent the issues of this time period gave greater cause to mention religion.

Clearly, the rise of any terrorist movement intent on mass murder would have been mentioned regularly by politicians, and that Islamist movements killed in the name of a religion gave religion in general a salience it would not otherwise have had. Indeed, were it not for terrorism-related mentions there would have been no clear trend in religious mentions over 2000-2003.
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Assorted links

1. This week is the 100th anniversary of the ‘fusion’ of the Protectionists and Free Traders, establishing a forerunner of the Liberal Party and the party system we still have today. It was effectively the end of economic liberalism for 60 years. Charles Richardson has a very good account of what happened in the current issue of Policy.

2. A SMH opinion piece by former WA Premier Geoff Gallop on the merits of federalism. Against the centralisers, he says

Political philosophy and a serious discussion of checks and balances, creativity and innovation and accountability and control are sacrificed on the altar of “efficiency” and “uniformity”.

In well-timed evidence of the merits of federalism, Tasmania’s parliament is going to debate euthanasia legalisation.

3. For Sydney readers not already bored of my views on higher education, I will be giving a seminar on the Gillard reforms at the CIS on 4 June.

Is there any point in double banning capital punishment?

The SMH reported yesterday that

LAWS prohibiting states and territories from reintroducing the death penalty are being seriously considered by the Rudd Government and could be introduced this parliamentary term.

Even for a government as hyperactive as the Rudd government this proposal seems excessive. After all, nobody has actually received capital punishment since 1967, and according to the SMH article the last state formally removed it from the statute books in 1985. The 2007 Australian Election Survey suggests that, for the first time, capital punishment has minority support. Neither regular appalling murders, nor the introduction of tough anti-terrorist measures, has seen any serious attempt to get the death penalty reintroduced. The issue is as dead as Ronald Ryan, the last man to go the gallows. For good reason, the Australian political class has lost the will to kill.

So why this proposal? According to an accompanying article

The move is intended in part to reinforce with Asia Australia’s opposition to the death penalty – given concern at the fate of three Bali Nine members on Indonesia’s death row.

But this proposal relies for its significance on a distinction between state and federal law that is barely understood within Australia, much less within Asia. I fail to see how an obscure constitutional point adds anything to our international advocacy, much less to the substantive debates within Asia about the advantages and disadvantages of the death penalty.

Double banning capital punishment seems to me to be soft left symbolic politics at its most ridiculous.

Are human rights based on love?

According to The Australian, the new girlfriend of David Hicks, Aloysia Brooks, ‘writes poetry on human rights issues’. Thankfully the paper spared us any quotations from it. But we were not so lucky in escaping ex-Justice Michael Kirby’s imaginative musings on ‘human rights’:

In an article published in The Age last week he told us that:

The essential underpinning of fundamental human rights is love. Love for one another. Empathy for fellow human beings. Feeling pain for the refugee; for the victim of war; for the prisoner deprived of the vote; for the child dying of cholera in Zimbabwe. We can imagine what it must be like to be a victim because, as human beings, we too feel, and yearn for, life, freedom and justice.

That’s quite a segue from ‘love’ to the pity we feel for a kid we’ve never met and never will meet dying of cholera. Putting ‘love’ as the underpinning of human rights seems to me to have things the wrong way around. It is because we don’t love each other, because positive emotions of any kind are in finite supply, that we need social norms and legal and political institutions that seek to protect us from others and to manage conflict in a peaceful way.

Judith Shklar, a fine Harvard political theorist and escapee from the Nazis as a girl, had it right in her famous essay on the ‘liberalism of fear’: that liberalism – which provides much of the ideological basis of ‘human rights’ – begins with the evil of cruelty, and the desire we have to live free of fear.

Whether legally-entrenched ‘human rights’ are the best way to put limits on cruelty is a debate that we will again be having over the next six months. But it we had unlimited love no such legal rights, and no such debate, would be necessary.

Could political expenditure disclosure laws be unconstitutional?

I am pleased that the NSW government has dumped its absurd and anti-democratic plan to ban political donations.

The apparent cause, however, was not a realisation that the original proposal was a bad idea. It was this advice on its constitutional and practical difficulties by the consistently impressive Anne Twomey.

Twomey’s report does not discuss the law in which I have the greatest personal interest, the federal laws on political expenditure disclosure. Under the current law, persons or organisations spending more than $10,300 on an election issue have to disclose both how they spent the money and, if it was based on donations of that amount or more, who the donors were.

The current federal government plans to reduce that threshold to $1,000, meaning that thousands of people and groups that may comment only incidentally on election issues will be caught up in tougher disclosure requirements than political parties (which have to disclose donations, but don’t have to itemise expenditure). Those individuals, or the office-holders of the groups, face a conviction and possible jail sentence for failure to comply.
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Is HECS a tax?

Commenter Charles objects to HECS as

an exotic tax aimed at passing education costs to the next generation

Though until 2004 I thought that HECS could reasonably be classified as a tax, that analysis would have been disputed by the courts. Under the Constitution, there is a distinction between taxes and fees for services, and arguably HECS was a fee for service, in that the person who paid it became entitled to a specific service in return.

However, HECS had other attributes of a tax: it was set by the government, it went to the government, and was mostly collected by the Australian Taxation Office (up-front payments went direct to universities, but as money owed to the Commonwealth, with an adjustment to the government income of universities as a result). It made the Australian tax-welfare system mildly more progressive than it would otherwise have been.

But since the student contribution amount system came into force in 2005, I do not think ‘tax’ is the best description of this payment.
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