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May 3, 2006
Is the Howard Government saying that its policy concerns and disciplines to ensure public security by integration through the acceptance of Australian values by law-abiding Australian-Muslim citizens means that they cannot practice their religion in their own way? Does it mean that constraints should, and will be, placed on their freedom to practice their religion? That is what the recent talk of integration as assimilation implies, does it not?
I want to explore this in terms of freedom within liberal democracy and the role of the High Court. The latter was recently the subject of an article by Andrew Clarke entitled 'Judgment Days' in the Review section of last Fridays Australian Financial Review. Clarke gave an overview of a couple of decades of tumult around the High Court, ranging from the campaigns to remove two Labor appointees (Justices Lionel Murphy and Michael Kirby); the hostility between retired Chief Justice Harry Gibbs and his successor Anthony Mason on the Mabo decision that recognized native title and the virulent attacks on the High Court by Ministers in the Howard Government. Clarke also argued that the High Court was shifting from its historically exclusive reliance on British law and precedent to embrace a more internationalist path.
I'll come back to that shift. First I want to outline how I understand the way liberal democracy in Australia works. On my understanding this polity presupposes that every citizen has an equal right to liberty. The task of the political process in this polity is to delimitate the respective spheres of liberty between individuals in a way that takes them seriously as equals, and that it does so in a way that best furthers the general interest or welfare. It is the task of the courts to assess whether, under the circumstances, the acts of public authorities, even of elected legislatures, can reasonably be justified in constitutional terms.
The primary task of delimitating the respective spheres of liberty is left to the legislatures. Parliament is the author of the laws in liberal constitutional democracies. The High Court in Australia has assumed an important editorial function as veto player. This court acts as guardians and subsidiary enforcers of human and constitutional rights, and in doing so it functions as an institution to povide a forum in which legislatures can be held accountable at the behest of effected individuals claiming that their legitimate interests have not been taken seriously.
The basic idea underlying political liberalism is that when the government acts in a way that detrimentally effects the interests of an individual citizen, those acts have to be justifiable in terms that take that individual seriously. All you need in order to make a rights claim is an interest that is sufficient to establish a duty in public institutions to take account of it.
The point of human and constitutional rights is to focus and structure the court's assessment of whether the actions of public institutions are reasonable under the circumstances. The language of rights has provided the authorization for courts to play a role to protect the legitimate interests of individuals, thereby helping to hold public institutions to standards of good government in our liberal constitutional democracy.
Constitutional rights in Australia are implied not explicit; implied in the sense that the individual freedom of citizens for political expression and religion is presupposed by the Australian constitution. To claim otherwise is to deny that Australia is a constitutional liberal democracy based on the value of freedom. Given this understanding of our liberal democracy I cannot see how integration as assimilation is justified in constitutional terms.
So how we recognize the tacit constitutional rights of freedom? That's the task of the High Court and it may well come from the role of international law in constitutional interpretation. Usually dismissed in terms of "judicial activism" and "black letter"--meaning reliance on British precedent--this account ignores the judicial independence in referring to UN covenants signed by the Australian Government, or a decision of the US Supreme Court. Australia, after all, is an independent nation, and the HIgh Court is quite justified in in making miore reference to international treaties and and decisions by courts in other common-law countries. Andrew Clarke's argument is that globalization will ensure that this shift to referencing internationall aw that recognizes human rights will continue.
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