QED

Money where mouth is

You remember those Dickens’ novels where one of the protagonists is off trying to save the world while completely and utterly ignoring her own family? She’s starting up some charity or other to send missionaries or aid workers to Africa while criminally neglecting her own children.

Of course Dickens is making a fairly brutal point, almost literally the point that charity – and indeed trying to make the world a better place – begins at home, or close to home, or with one’s nearest and dearest. It involves something other than talk and pontificating.

To make the point in more modern terms you might sum it up as the dislike of bumper sticker moralisers, people who talk a big game but only where the talk is cheap and easy and not likely to involve any real personal sacrifice. You know what I mean. It’s those little slogans stuck on the back of cars, things like “End Dictatorship”, “Stop War”, “Save the Planet”, “No Logging” and other similar little ditties that cost those who sport them next to nothing. Just a nice chance to advertise one’s own moral superiority.

I thought of this the other day when pondering our Attorney-General’s support for a statutory bill of rights. Mr. McClelland, when not writing reference letters for all and sundry, paints himself as a big supporter of human rights, and so wants to hand over a lot of decision-making powers currently residing with Parliament to the unelected judges.

I think he’s wrong about that. I think it would be a big mistake. I think you just can’t get past the fact that nice, reasonable, well-informed people simply disagree about the issues that would get before the courts under one of these instruments and that counting each of us as equals, and voting, and leaving it to Parliament is a better way to resolve such political issues than transmogrifying them into legal issues and letting the courts decide (and that’s what the practical effect is even with statutory versions of bills of rights).

But that’s not the point of this piece. My point here is this: If our Attorney-General sees himself as wholly and completely committed to unearthing suspect human rights practices, what has he said about those close to home?

Let’s take the notion of freedom of conscience. Just about any bill of rights in the modern democratic world will have some sort of provision in suitably amorphous and vague terms about upholding this right or entitlement. And in those general terms I suspect almost all of us would raise our hands and sign up too. Indeed one of the tricks that makes a bill of rights attractive is that it finesses most actual disagreement by dealing in such indefinite terms that the vast preponderance of us can concur.

But put aside generalities and let’s ask our Attorney-General what he thinks about a rather more specific issue. What does Mr. McClelland think about the fact that a Labor Member of Parliament in Australia has to tow the party line if he or she is to stay in the Labor Party. Not for the Labor Party any exercise of conscience by any of their MPs. Vote your conscience as a Labor MP and you kiss your ass…ociation with the Labor Party goodbye. You see they have to sign a pledge to vote as caucus directs.

And note that this is not true of the Labour Party in the United Kingdom, or New Zealand. Neither is it true of the Coalition here in Australia, or of any of the political parties in Canada.

Yes, there are arguments in favour of this Labor Party practice. But one would imagine that given Mr. McClelland’s other views he would have a very difficult time voicing those arguments related to efficiency, loyalty and the greater likelihood of winning votes in the legislature.  So if a strong, even virulent, rights-based agenda really is our Attorney-General’s cup of tea, why isn’t he standing up and yelling about this practice in his own party? It surely can’t be because he values other things more deeply than giving the broadest interpretation one can to rights. When that the Amnesty Internationals and civil libertarians have cried, McClelland hath wept.

And we know any reticence can’t be due to self-interest.

So let’s hear Mr. McClelland speak out on this practice that seems at least plausibly to conflict with an MP’s freedom of conscience. Does he think it does, or doesn’t? And if it does, what’s he going to do about it?

And while our Attorney-General is at, maybe he could say a few words about Australia’s freedom of information regime. It’s hardly a world beater, even with the recent changes. Rather than bleat on about a bill of rights that will simply transfer decision-making to unelected judges, why doesn’t he just proceed really to liberalise our FOI regime, and make it easier for citizens to get government information.

If Mr. McClelland got around to pushing for either of those things we might be able to steal Mr. Dickens’ line and say of him, “It is a far, far better thing that he has done than he has ever done before”.

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

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