Phoning at the mouth (Telstra’s bad bill)

There I was twiddling my thumbs as I waited on the line to get through to Telstra. You know what it’s like. You’ve been put on hold for several hours. If you’re one of the lucky ones you might have got connected to a computer that told you to ‘press one to pay bills’, ‘press two to be sent a copy of your latest bill’, ‘press three to pay next month’s bill’, and just about every option on the planet other than actually speaking to a real life human being. Anyway, as I waited there endlessly on the phone with my blood pressure soaring, I thought to myself, ‘Why don’t I make a submission on the government’s telecommunications plans?’. Or better still, ‘why don’t I pay somebody to make a submission for me?’.

Actually, none of that ever happened (except for the endless waiting on the phone to speak to a real life human being).   It never happened because I don’t know anything about telecommunications. And I certainly wouldn’t spend any of my own money to hire someone to make a submission for me.

And yet we learned last week that Telstra, a company that is supposed to be trying to make money by delivering top of the line services related to telecommunications, made a submission to the consultative committee set-up to look at whether Australia ought to have a bill of rights. This revelation is rather astounding. Why? Because Telstra doesn’t know anything at all about how bills of rights work or what their effects are in other countries that have them. But never mind, dear chap. This phone company feels free to launch an attack on Australia’s human rights record and to urge the government to adopt a charter of rights.

Wow! And why did it do it? Apparently to redress what it sees as the ‘racist’ underpinnings of our Constitution; because it doesn’t think Australia’s human rights record compares favourably with other democratic countries; because of the company’s concern for human rights; and because of its interest in free speech.

Let me put my reply to this politely. What a crock of, well, you know. I don’t know anything about telecommunications but I do know a bit about bills of rights. So let’s take a few facts as our starting point.

First off, bills of rights don’t settle issues. They set out some vague, amorphous standards in such indeterminate terms that everyone can support them and then they hand decision-making power over to unelected judges.  Saying you have ‘the right to free speech’ doesn’t mean you, or a newspaper, or a big phone company can say anything. Countries with bills of rights put all sorts of limits on free speech. In fact, and one assumes that Telstra must not know this, Canada has more limits on what you can say than Australia. Canada has one of the world’s strongest bills of rights. We don’t have one at all. And yet when it comes to campaign finance rules, hate speech provisions, defamation regimes and more citizens (and even public companies spending shareholders’ monies in bizarre ways) here have more scope to speak their minds – they face fewer restrictions – than Canadians do.   That’s a fact. 

So when Telstra says it’s concerned about free speech it’s either disingenuous, or it doesn’t really have any idea at all about how bills of rights work.

Maybe the company is concerned about the possibility of over-harsh responses by the elected legislature to the threat of terrorism. Maybe that’s why it thinks Australia needs a bill of rights? Alas, that won’t work either. Here in Australia, without a bill of rights, the police can hold terrorism suspects before charging them for no more than seven days. But in the United Kingdom, with just the sort of statutory bill of rights that our Attorney-General is pushing for, terrorism suspects can be held before charge for far, far, far longer. In some circumstances it can be 42 days. That’s six times longer. The UK has the bill of rights. We don’t. Do you think Telstra, its president, and the board that authorised paying for this submission has the slightest idea about that?

And for that matter, do you think Telstra has anywhere acknowledged that the Cabinet minister in the United Kingdom, Jack Straw, who pushed for one of these instruments there, has now conceded it hasn’t worked out at all as he had thought? Nope, of course not.

Let me say it again. Nothing in a bill of rights stops people from being rounded up, taken from their homes, and locked up elsewhere. That’s what happened in the United States in World War II, and the US Supreme Court, in Korematsu, looking at their bill of rights, said ‘fine’.

It gets worse than just not knowing about real life free speech cases and anti-terrorism cases under real life bills of rights around the democratic world. There is also this sanctimonious sense that some company eunuch at Telstra has a pipeline to God on all the various rights issues that reach the courts under a bill of rights. The simple fact is that all these sort of issues (on immigration, abortion, marriage, police powers, euthanasia, and on and on) are ones that are highly contestable. All sides think they’re on the side of what is morally correct. It’s moronically simple-minded to think that setting out a few disagreement-finessing moral abstractions, or worse handing such issues over to committees of ex-lawyers, will make these issues go away or guarantee we strike the right balance.

A bill of rights is wholly about whether you want these issues decided by ex-lawyers who are now judges, or by the politicians who are elected by hairdressers, plumbers, teachers, and all of the rest of us on an equal basis. There is not the slightest evidence at all that Australia’s constitutional arrangements are in any way comparatively defective. In fact, having a little bit of experience overseas, I would say ours are the best on the planet. We have good voting systems, strong bicameralism, federalism, no gerrymandering, and on and on. 

So here are a few questions to ponder. Firstly, who actually wrote this Telstra submission? (I’m assuming it wasn’t the person who might otherwise answer the phone when I call to complain.) Secondly, why was shareholder money being spent in this way, particularly as the company seems not to know any of the nuances or subtleties of this debate? Thirdly, why did the head of the government appointed panel set-up to consider this issue get reported as welcoming the “cogency and substance” of the Telstra submission?

From the minute this panel was formed I have been saying that it’s a sham. At least three of the four members appear clearly to have come to the issue on the side of wanting a statutory bill of rights. That’s what many of us would call a fix. Where are the sceptics of statutory bills of rights on this committee? Of course, as the Attorney General himself is in favour of a statutory bill of rights, that’s not a question anyone need answer. We all know the answer. The panel will come down in favour, I guarantee it.

As for Telstra, if I ever manage to get someone to answer when I call I think I might ask them when my many contracts with them are set to expire so I can move all my business to a company that isn’t making such outrageous imputations about Australia and that limits making submissions to areas it knows something about. You?

James Allan is Garrick Professor of Law at the University of Queensland

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