Gary,
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.

Cam,
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.

dj
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.

Gary,
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.