While Ebola stalks the planet, another dreaded and virulent disease, even less susceptible to effective treatment, permeates academia: Abbott Derangement Syndrome (ADS). Symptoms tend to involve irrationality, incoherent diatribes and complete loss of perspective. The minds of those who suffer from ADS become incapacitated with fits of (mostly confected) outrage and self-righteous moralising.
ADS sufferers tend to have an inherent predisposition to the disorder arising primarily from an unhealthy fixation on government as the solution to all problems afflicting humankind and, indeed, the natural world. Research to find a cure is in its early days. Palliative care and soothing words along the lines of, ‘There, there now. One day we will overcome the misogynist neoliberal capitalists and there will be free sunshine for all’ may temporarily alleviate symptoms. However, one should keep a safe distance when the sufferer is in the throes of a full-blown fit – or writing in The Guardian, which is usually the same thing.
University of Sydney law school’s Professor Ben Saul seems to be suffering an especially bad case, judging by his recent screed in the online site for those who think The Age, SMH and ABC insufficiently to the left of rational thought. The words in italics are Saul’s. The grammatical and spelling errors are the fault of the competent sub-editor The Guardian has yet to hire.
As the Australian parliament adopts more stringent laws on terrorism and refugees, it is timely to ask how well the government is fulfilling its traditional “freedom” agenda. It famously retreated from its battle to maximise free speech by minimising racial hatred protections. It lost that battle but its ideological war for freedom continues.
“Maximise free speech” is tautological is it not? Either you have free speech or you don’t.
Recall that George Brandis, the attorney general, announced a law reform inquiry into traditional civil and political freedom. Brandis is especially concerned about corporate, environmental and industrial regulations which restrict rights.
Brandis’s push for greater personal freedom was rolled by the kind of folks with whom Saul would feel quite at home.
Brandis also appointed a “freedom commissioner”, Tim Wilson, who is conducting his own inquiry and is concerned, for instance, that native vegetation laws impinge on land rights, and that councils prevent those with ocean front land from developing it in the face of rising seas.
Because Australia has a shortage of native vegetation and councils have any clue about rising sea levels?
Nelson Mandela’s freedom agenda pales next to this. The suffering of News Ltd columnist Andrew Bolt, who was found have breached racial discrimination laws by hurting the feelings of light-skinned Aborigines, is especially incomparable.
Straw man alert: Bolt has never compared himself to Mandela.
The attorney general’s “freedom” agenda is really an ideological war on human rights that pretends to defend them. The freedom agenda is ridiculous for so many reasons. It is an attempt to co-opt the language of rights to protect business interests. Corporations are not generally downtrodden, and by the way, are not entitled to “human” rights.
First, it’s about the most important human right of all – free speech – then it’s about individual property rights. Now it’s not about rights at all.
It attempts to silence, diminish or deflect the human rights violations suffered by those who are most vulnerable, disadvantaged, or powerless. It denigrates the rights that most Australians think important, such as freedom from discrimination or being sacked for being pregnant. It fails to understand that the state is not just a threat to rights, but a necessary guarantor of them from intrusion or predation by private interests.
The Racial Discrimination Act, which Abbott abrogated his promise to amend, is all about silencing and does nothing to reduce discrimination. Indeed, it fosters it.
Notice, too, how the right to contract, fundamental to our economic freedom and the wealth it provides to lift living standards, are to Saul merely “interests” with no public benefit. What Saul doesn’t make clear is how, for example, the PM’s push for an expansive maternity leave scheme designed to help strengthen job security, disadvantages pregnant women in the workplace. (One may dispute the scheme’s high projected cost and associated tax, but there an be no doubt that is its intention.)
It is obsessed with boutique concerns, like defending bigotry, which most Australians believe to be cruel and unreasonable. It naively believes that law has no place in dealing with racism, and that victims of abuse on a bus can somehow engage a racist thug in a reasoned conversation and persuade them they are wrong.
Mr Voltaire, please call the office. Welcome to the bigotry boutique, liberty lovers, where the fundamental freedom of speech, the right that guarantees all other rights, is reduced to a mere “boutique concern”? It could hardly be said that the Abbott government “naively believes law has no place in dealing with racism,” when even the proposed-and-scuttled Section 18C amendments made it unlawful to vilify on the basis of race. But let’s not let a trifle concern like facts impede an ADS sufferer’s rant.
The freedom agenda also cherry-picks some rights as indispensable to democracy when others are equally important. We can hardly participate fully in democracy if we are starving, homeless, illiterate, jobless, deprived of healthcare or social support. Social and economic rights matter as much as civil and political ones. Our social democracy is one of the most stable and prosperous in the world precisely because it takes care of those in need, and we have avoided the dysfunction and poverty that dogs free-enterprise America.
Who in Australia is “starving” or deprived of healthcare and education? Does Abbott not support the National Disability scheme? And there are very strong job prospects for Australians. The government’s first budget has only slowed the rate of growth of social spending (to a more sustainable level). But yes, it is true; some rights are indispensable to democracy. If I don’t have a job but can speak and associate freely and vote in an open and fair election, there is democracy. Having job security but no freedom to speak or associate, say, with a union if one wishes, or to vote, then there is no democracy. This is pretty simple logic that should not escape one even so firmly ensconced behind the academe moat.
The freedom agenda is also philosophically incoherent. The attorney general’s idol, John Stuart Mill, would be turning in his grave at how he is being verballed. Mill was not a liberal extremist, and accepted social limits on rights. The musings of a 19th century Englishman are also hardly the last word on how multicultural modern Australia should be governed. Mill, after all, defended despotic rule over barbarians, plundered for the British East India Company, and wound up as a virtual socialist. Some liberal hero.
Check your privilege, Brandis – old white man distorting dead white man “musings”. We need multicultural musings! Saul offers no alternatives, and something tells me he wouldn’t care much, either, for Voltaire, Berlin, Burke, Locke, Smith, Madison, Rousseau, Paine, Hayek or Jefferson.
But let’s take seriously for a moment the government’s claim that it is really concerned about the erosion of traditional rights – and assess how well it is protecting them.
Freedom from arbitrary or illegal detention is one of the oldest and most cherished classic liberal rights, going back at least 800 years to the Magna Carta. Why then is the government arbitrarily detaining thousands of refugees for protracted or indefinite periods? Or preventively detaining suspected terrorists while bypassing criminal law safeguards? Or locking away the mentally ill, even in police stations? Or not dealing with the extraordinary over-incarceration of Indigenous Australians?
Saul asks why mandatory detention? The answer has been pretty clear since the Keating Labor government introduced the policy. But, fortunately, thanks to this government’s competent administration of that policy, there are fewer people in detention — or drowning on the way — and detention centres are being closed, which will free up resources to take care of resettlement of refugees lawfully admitted from refugee camps.
I’m thinking here of the 22-year-old Indigenous woman from Western Australia who died recently in custody after being detained for unpaid fines; or the man scorched alive in the back of a paddy wagon in the outback heat not long ago.
If the government is so concerned about free speech, why is it now criminalising the vague notions of encouraging, promoting or advocating terrorism? Or criminalising intelligence whistleblowers and journalists who expose illegality or impropriety? Or permitting excessive defamation laws to shield the powerful? Or retaining nanny state classification standards which unduly restrict what grown-ups may read or watch?
What role the Abbott government played in the negligent death of an Aboriginal prisoner in WA in 2008 is not immediately clear to this reader. Indeed, Abbott is more focused on Aboriginal issues than perhaps any of his predecessors. For that he gets no points, of course. Odd, too, that Saul chooses not to mention Abbott’s push for Recognition. Just the sound of crickets on that score. Oh, and just by the way, there’s nothing vague about what some terror supporters have been urging.
If the government is concerned about the classic freedom of association, why does it permit restrictions on the right to strike and freedom of association, including collective bargaining, in breach of International Labour Organisations standards? Or criminalise vague associations with terrorist organisations? Or allow draconian anti-bikie laws to mushroom around the country?
Lost on Saul: freedom of association means the freedom to not associate. Saul cites international labor standards, yet in the next line discounts Australia’s adherence to international bans on terrorist organisations. Being free to not join a union is bad; facing consequences for joining or supporting a proscribed terror organisation is bad. Please, someone, take Saul aside, inform him that anti-bikie laws are state initiatives and quietly explain federalism.
Why does the government undermine freedom of religion by persisting with a school chaplaincy program that, in practice, makes Christianity the default religious presence in schools, dangerously blurring the separation between church and state, and making taxpayers subsidise Christianity?
Saul does not explain how freedom of religion is undermined by offering chaplaincy. The chaplaincy program is non-denominational, and ‘separation of church and state’ is about not having an established church or preventing the free exercise of religion. The states administer chaplaincy programs or can choose to not have them – because, you know, federalism, democracy, freedom stuff like that.
Why does the government restrict freedom of movement by criminalising visits to a foreign place that the foreign minister does not want you to go, without the state having to prove that you did anything wrong? Or by coercing refugees to live in rural areas? Or by mandating house arrest under anti-terrorism control orders?
Saul evidently was unmoved by reverse onus provisions for Australian company directors, but genocidal head-hackers returning from the jihad adventures must not be subjected to the same presumptions? Oh, the humanity!
Why does the government disenfranchise many prisoners by denying them the right to vote – and thus undermine the very foundation of democracy, namely universal and equal suffrage?
Because prison is not freedom.
Why does the government interfere in the private sphere of personal autonomy by prohibiting same-sex marriage; enabling mass surveillance of the innocent through deceptive warrants that access whole computer networks; allowing police to taser us on a whim; or not introducing a new cause of action to protect privacy? Why does it interfere in families by preventing refugees on temporary visas from reuniting with family members? Why does it infantilise and demean refugees by making them sign codes of conduct?
He does go on, doesn’t he? But that is to be expected, given that prolix frothing is one of the key indicators of advanced ADS. If marriage is merely a “private sphere” then, presumably, Saul is OK with allowing bigamy and incest (and who knew that the PM is known fondly among abuse-happy state police — again, F-E-D-E-R-A-L-I-S-M, Professor Saul — as ‘Tony the Taserer’?). Suddenly, Saul is also concerned with “privacy” and wants a tort of privacy. That could be consistent — emphasis on could — except that only a few paras back he was against privacy, as in private contract, private property, the privacy of being left alone by moral totalitarians. Anyway, it’s all Abbott’s fault.
Why doesn’t the government do more to protect equality and equal treatment in a country where female workers lag behind in every indicator, from equal pay, to workforce participation, to representation among CEOs, on corporate boards, and in parliament? And where sexual harassment is endemic in our military? And where a female prime minister is misogynistically pilloried by some in the attorney general’s own party?
I would have been disappointed if Saul had not spelled it out: M-I-S-O-G-Y-N-Y. Maybe he didn’t get the memo, but the so-called equal-pay gap has been thoroughly discredited, both here and overseas. Even with all of the flexibility and PC quota-pushing found in academia, woman are still under-represented in full professor positions at Saul’s own Sydney University Faculty of Law. Again, no mention of the Abbott government’s push for maternity leave, decried by feminists – natch.
Why is the government destroying traditional liberal ideas about the rule of law, such as by the near-total denial of procedural fairness to more than 50 refugees given adverse security assessments by ASIO – which serves as judge, jury and executioner? Or through the current migration bill which eliminates natural justice; or the new terrorism law which confers near blanket immunity on intelligence officials?
No doubt there are one or two knuckle-dragging extremists who believe “execution” is a fitting punishment for entering the country illegally, but most Australians would consider that to be a bit harsh. And only 50? The Left has constantly said no refugee would ever pose a security threat and they should be let into the community as soon as they arrive, sans papers or whether we even know who they really are. The reality is that the Security Appeals Division of the Administrative Appeals Tribunal reviews adverse ASIO security assessments. Saul’s friends can file the form here: As for blanket immunity, the kind of indemnification found in Brandis’s National Security Amendment Bill has been on the books for some time (see, for example, the Crimes Act 1914, Section 15HB), and Brandis made further amendments to mollify objections, despite 15BH and the fact that there are additional laws which proscribe ASIO activities.
What about the chronic underfunding of legal aid, which prevents the most marginal from vindicating their “traditional” rights? Why is the government eroding the already weak institutions we have for safeguarding rights, by reducing funding to the Australian Human Rights Commission and politicising it with an ideological appointee?
I don’t know, what about all of the frivolous lawsuits that have fritted away Legal Aid money? What dribble. I mean, literally, what dribble. And none of the other HRC members have a political or ideological axe to grind? Seriously?
And these are just traditional civil and political rights that the government is failing to defend. It is also undermining economic and social rights. Equality of opportunity in education is at risk from the deregulation of universities. The quality of education in schools is under attack from the politicisation of the curriculum, with a renewed emphasis on Judeo-Christian and British heritage, and an obsessive focus on imperial British military campaigns like Gallipoli – as if Gallipoli is not already our most heavily remembered historical event.
An emphasis on Judeo-Christian and British heritage, as in the rule of law, parliamentary democracy, freedom and respect for the individual? Hyperbowl, to quote a former PM perhaps more to Saul’s liking!
And just look how balanced, for example, the history curriculum overview, created under the previous Labor government, was: 25 occurrences of the term “Aboriginal”; “environment/environmental”/“sustainability” is mentioned 29 times; “China” or “Chinese”, 15 times; and “Asia” or “Asian” see 33 incidences. Meanwhile, “Europe” or “European” is noted 17 times; “Britain” or “British”, eight times; “democracy” is noted three times; the spread of Christianity is mentioned just once, along with that of Islam; the Enlightenment and capitalism just once (along with Socialism); the Reformation, not at all.
Accessible and affordable healthcare will be compromised by new upfront fees. Vulnerable young people are having their welfare cut and are being punished for the government’s failure to generate enough jobs for them – violating the rights to social security, an adequate standard of living, and non-discrimination on the basis of age.
Non-discrimination on basis of age? So I should be able to apply for my aged pension right now, despite being younger than the mandated number of years?
Private property rights are increasingly trumping collective Indigenous land rights. Indigenous peoples are being denied control over their communities and customary laws, and deprived of representative political institutions, and remain under the reign of a paternalistic, racially interventionist, centrist white state. It is little wonder that people deprived of control over their own future suffer across the spectrum of disadvantage.
Read: Aboriginal Australians should not have same freehold property rights as other Australian individuals, and their political institutions should be kept on the political plantation, segregated from mainstream Australia and its First World parliamentary democracy. But nice to see property rights, albeit “collective” ones, being acknowledged as actual “rights”, rather than an anachronistic niche interest of Australian capitalism’s feudal lords.
These are just some examples of human rights abuses in the real world, not the terrifying perils of regulation in the corporate boardroom. “Restoring the balance” is another way of saying the government wants to pick and choose whose rights it respects and whose it violates with impunity. This is not a democratic “rebalancing”. It just gives more power to the powerful, and leaves the powerless with even less.
Evidently the government’s agenda was created in secret, hidden from the large majority of Australians who voted for it, and there will never be another election to hold it to account. Democracy is over, dead, buried and cremated!
The point is that if the government were genuinely serious about addressing human rights problems, it would not shunt them off to distant inquiries. It would act now by repealing or amending bad laws, and refraining from passing new ones.
The government’s efforts to repeal or amend bad laws, like Section 18C, has been stunted by some of Saul’s bedfellows. Would Saul like to see Gillian Trigg’s HRC refugee inquiry shut down as well? One imagines not.
The government could even show its heartfelt concern for freedoms by adopting a bill of rights. Why dabble at the edges when a systemic fix is available? Why allow your colleagues, or future governments, to violate rights if you can entrust the independent courts to safeguard them for all time?
Then Saul’s law faculty can to double its size. Yay!
The government’s freedom agenda is breathtakingly hypocritical, incoherent and insincere. We already know the gamut of rights violations in Australia. There are no surprises. There is just no political will to fix them.
Who is “we”, Professor Saul? Likely it is not the voters.
Alan R. M. Jones was an adviser in the Howard government