Philosophical Conversations Public Opinion Junk for code
parliament house.gif
Think Tanks
Oz Blogs
Economic Blogs
Foreign Policy Blogs
International Blogs
Media Blogs
South Australian Weblogs
Economic Resources
Environment Links
Political Resources
South Australian Links
"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

the poverty of Australian conservatism « Previous | |Next »
November 20, 2007

One of the reasons it is difficult to take Australian conservatism seriously is because their arguments are so poor, especially in The Australian's op-ed pages. It's often little more than a tirade about the chardonnay-sipping, self-loathing liberal left who sneer sneer at patriotism etc etc whilst being ambiguous about classic liberalism.

Take the issue of the Bill of Rights which refers to the rights that are judicially enforceable and that cannot be overridden by Act of Parliament. It is a sensible option that rights-based liberals have proposed to protect the freedom of individuals from the power of the state. There is no Bill of Rights in the Australian Constitution and so the fundamental rights and freedoms of everyone living in Australia are not protected by the law. There are pros and cons to this proposal that deserve to be debated as it is a serious issue due to the inability of the inability of the common law to adequately protect the human rights and freedoms of individuals.

James Allan, a professor of law at the University of Queensland, has an op-ed in The Australian that criticizes the liberal's Bill of Rights. And its pretty poor in terms of an argument. It's more a soapbox rant.

Allan says:

The real threat to Australia comes not from the unionists but from the other main wing of the Labor Party, what I would describe as the chardonnay-sipping, ultra-PC, anti-traditionalist wing of the Labor Party. These are the people who worry me. Start with the legal revolutionaries among them. This Labor-voting crowd, well represented among lawyers, judges, teachers and academics, wants power taken away from elected MPs and given to unelected judges. They badly want a bill of rights. They know perfectly well that all bills of rights - be they British-style statutory ones or Canadian-style entrenched models - have precisely this increase-the-power-of-judges effect. Indeed, if they had no effect at all on the power balance, why would anyone push so hard to have one

Allan, a professor of law, would know that there is a long tradition of rights based political philosophy that is based on social contract theory. Is this' threat to Australia' tirade just the required house style of The Australian; one that requires the hysterics, mock outrage and abuse about the preening, smug, holier-than-thou PC brigade who like their moralising to come cheap and easy?

The argument is buried---it's a Bill of Rights would increase-the-power-of-judges. So what is wrong with that? Allan says that a bill of rights takes away from parliament and puts into the province of the judges:

It's not the ex-unionists who are the preening, puffed-up moralisers in the Labor Party. Far from it. But the crowd that doth vaunteth itself has calculated that the unelected judges are likelier to give it the moral outcomes it wants than are what it sees as the grubby politicians. And just to make sure of this, it tries to appoint to the bench people in its own image, people who are as much anti-traditionalists, parliamentary sovereignty-loathing activists as it is.

But parliament is not supreme or sovereign in an absolute sense, as it must work within the framework of the Australian constitution, as it is interpreted by the High Court. Allan would know that within the limits of its constitutional power parliament can change the law, given his research interests in legal philosophy and constitutional law, just as he know that the process of judges and courts developing, making and occasionally changing the common law has been going on for a very long time.

Allan avoids giving arguments to back his assertions, and mentions legal revolutionaries, the family as the bedrock unit of social life, gay marriage, national security, postmodernist, deconstructionist fads etc etc. The tacit argument is that rights based conception of the law is really just a disguise for a particular political agenda that seeks to use law as an instrument for social engineering, and would reduce political governance to disorder or anarchy.

Since Allan's appeal to prejudice and bigotry is not a serious argument against a Bill of Rights, we left with Allan's assertions. Consequently, we have little idea of what a conservative legal philosophy would look like, apart from concentrating power in the executive branch, eroding governmental checks and balances, and diminishing the rights of private citizens; and the view that law’s validity as the rule of law is tied directly to the authority of the promulgator--Parliament.

| Posted by Gary Sauer-Thompson at 04:28 AM | | Comments (9)


Is Allan taking aim at those legal theories of the twentieth century “which in one way or another reject the classical understanding of law as illusory, and which treat the idea of rule of law as a conservative mantra? Or does he adhere to the Hobbes/ Bentham’s “command theory”, which holds that law is not a reflection of the ordered universe, but is the expression of power?

I gather that many MPs would hold that human rights were already well protected within Australia and that Parliament rather than the courts should be the final arbiters in matters affecting human rights. I recall that Hilary Charlesworth has argued against the protection assumption:

: Common law protection of rights is minimal; the Commonwealth government's power to legislate to implement international obligations with respect to human rights has been only partially and inadequately exploited; the States generally have given the protection of human rights a low legislative priority; and Australian participation in international human rights instruments has often been diffident.

Peter S,
I don't know. I'd have to dig to find out what Allan's conservative philosophy of law means. Does a conservative legal theory eschew moral theory?

I do know that the omission of a Bill of Rights from our Constitution is one of the elements which marked it as different to the United States Constitution from which a number of principles were derived. It was not however an omission by accident. The inclusion of a Bill of Rights was proposed and debated at the Constitutional Conventions which lead up to the drafting of the Australian Constitution. Its inclusion was defeated, somewhat ironically, on the basis that a 'due process' provision would undermine some of the discriminatory provisions in place at that time, including those laws which were enacted to the detriment of Aboriginals and Asian immigrants.

The central arguments against a Bill of Rights in Australia have principally relied upon the protection afforded by the common law. It is also held that an active judicial role in relation to a Bill of Rights is an affront to "Parliamentary sovereignty" and the inherently democratic nature of the operation of Parliamentary system.

The standard conservative narrative is that they see their job as "interpreting" the Constitution in light of the text and original understanding; liberal judges, by contrast, are "activists" when they usurp the power of the legislature to make law.

This really is just a hysterical brain fart under the cloak of academic respectability. It's the sort of thing that would not have been out of place in the Voelkische Beobachter or Pravda. It would probably barely scrape through with a pass in a first year politics course on political and judicial philosophy.

I wonder if Allan would hold the same opinion if the Greens were a major party? Somehow I doubt it.

It's not just a poor argument, it's an inconsistent one which only applies in certain circumstances. At the moment I'd say it works for him because Michael Kirby gets more publicity than, oh, I don't know, David Flint?

Gary, It think the philosophical grounding for that kind of conservatism is in the English Whigs prior to the American Revolution. They were for the supremacy of parliament, but because they faced a powerful executive in the monarch. So they were not for a dominant executive which goes against modern conservatism.

Jefferson's and Madison's liberal republicanism innovated on top of that Whig tradition and made the executive explicitly constitutionally restrained. They also put in justifications and boundaries on governance, as well as recognition of executive and legislative tyranny, in a bill of rights.

That is the modern liberal view of limited government, which is different to the Whiggish conservatism as it would be called today, but which was quite liberal for the time - especially prior to the Americans putting it altogether in one political package.

When I was reading through the book on the Constitutional Philosophy of Jefferson he was aware of the two philosophies and actually lent toward the Whiggish view in co-equal powers and the ability of the executive to interpret the constitution as the judicial and legislative can in their area of responsibility.

This is similar to Bush style executive assertion of co-equal powers. Madison and Marashall disagreed with Jefferson and since then the judicial has asserted itself constantly to have the final right of judicial review.

It was interesting to see the Australian Federal and High Courts re-assert that right recently when dealing with the migration and terror cases.

Ironically I think Bush and Cheney are ignorant of Jefferson's doctrine of higher obligation. They may have had more grounding for their executive rule if they asserted it as Jefferson's doctrine.

1. it is not just Parliament being supreme as we have the clash between executive and parliament.
2. As John Stanhope, the ACT Chief MInister, observes about the ACT Bill of Rights it's not a case of giving judges a free hand to impose their social agenda since it is

the Parliament’s doing that to itself. In relation to the adoption of a Bill of Rights or Human Rights Act, on the basis that this particular parliament, namely the parliament of the ACT incorporates into the law of the ACT all the human rights set out in the International Covenant on Civil and political Rights. It is the parliament that is saying, We are prepared to be measured against our commitment to these fundamental human rights.

Thus we have the poverty of Allan's conservatism---he's talking nonsense.

I still find it amazing that a professor of law in a sandstone university would write such trash about human rights given the conflict between freedom and national security.

In this earlier op-ed ---All bets are off when a bill of rights comes in Allan says:

Under a US- or Canadian-style bill of rights, judges can strike down statutes they don't like. Under a British- or New Zealand-style one, the kind Victoria seeks to copy, the judges get a power to interpret all other laws in a "bill of rights-friendly manner" - meaning they can read "black" to mean "virtually white" or "men and women" to mean "men and men", or just about any words to mean anything.

It's a big leap from judges interpret all other laws in a "bill of rights-friendly manner" - to they can read "black" to mean "virtually white" or "men and women" to mean "men and men".
A number of premises are missing in order to ge the Alice in Wonderland conclusion. Allan claims that judges get to use a new "human rights-friendly" method to interpret parliament's words. In effect, they get a blank cheque.

Again there are missing premises between human rights frindly method and blank cheque. I find this junky rhetoric offensive coming from a professor of law--he's effectively trashing legal reason as a public reason.

The whole point of a Bill of Rights is to protect minority rights, because you don’t need rights protection if you’re in a popular majority. Australia stands almost alone in the world in not having a Bill of Rights.

Hilary Charlesworth puts paid to Allan's blank cheque scare tactics when she says:

the ACT Bill of Rights is a piece of legislation that can be changed by Parliament, rather than a US-style, constitutionally embedded document. Like in the UK and New Zealand, judges must try to interpret all legislation to be consistent with the Bill of Rights. As in the UK where the courts find that that legislation is inconsistent, it can’t overturn the legislation but it can issue a Declaration of Incompatibility. And unlike the UK, there’ll be no power to seek redress from a public authority.

So much for Allan's 'Alice in Wonderland' scenario. The rights enshrined in the ACT Bill of Rights are essentially those set out in the International Covenant on Civil and Political Rights. They include things like freedom of expression, freedom of religion, the right to a fair trial and the right to privacy.

Gary, yes, the modern perversion of Whiggism is conservatism's dominant executive. The Nationals had in their party platform during the Queensland elections a "belief in the supremacy of parliament" which in reality means the unitary politics from an elected executive. Vaile's recent comment about an unelected civil servant acting politically is in that same vein.

In its current form conservatism is unfit to govern. We have seen in America and Australia the failure of governance in emergency/exception executive rule.

I find it ironic that self-professed conservative commentators like Andrew Sullivan only manage to make conservatism consistent when they embrace liberalism.

Ron Paul is a good example. His foreign policy is an unabashed form of international liberalism and he is being shouted down for it.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

Email Address:
Remember personal info?
Comments: (you may use HTML tags for style)