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April 04th 2017 print

James Allan

Latham, the Right Replacement for Triggs

She's a tax-hoovering, memory-challenged elitist who thinks it a grave pity people can still speak freely around their kitchen tables. He's a vulgarian biff merchant, but he does boast one winning credential: unlike the HRC's trough-snouters and the PM who indulges them, he believes in free speech

latham grim IIThere was an April Fool’s Day joke going around that had the Liberals announcing that Mark Latham would be the next President of the Human Rights Commission.  If you had the usual Green-Left, chardonnay-sipping, Ultimo sensibilities this was meant to be near-on hilarious.  Mark Latham given a sinecure (oops, ‘an important public service job’) to replace the wonderful, amazing Gillian Triggs?  You can’t be serious!  And, needless to say, it wasn’t serious.

But I happen to like the idea.  If we can’t get anything remotely worthwhile through the Senate when it comes to emasculating 18C – and let’s be clear that what the government did get through the Upper House on this front is a complete joke, basically worthless – then it’s time to do what the Left side of politics does and just stack these bureaucracies with people who might deliver outcomes that are acceptable.  I very much love the idea of Mark Latham replacing memory-impaired Gillian.  Sure, the next Christmas party for the HRC won’t be anywhere near as grand. But, my God, we could be confident that things would change in this monstrosity of an over-reaching, puffed-up, holier-than-thou enforcer of speech-stifling Lefty orthodoxy.

And because we know this we also know Team Turnbull’s bunch-of-wimps government won’t do it.  Just look at who Malcolm appointed to be the new ABC chairman and weep.  The PM’s pick, his old business crony Justin Milne,  wasn’t in the job five seconds before he was shouting from the rooftops that there was no bias at the ABC, which is patently absurd.  Just imagine the outcry on the Left if every single, solitary presenter and producer on all the TV current affairs shows were from the right of politics.  They’d be apoplectic.  Of course you could trot out the old Mark Scott line that all those notional Righties are professionals and they always looked inside themselves and ensured that they delivered a balanced, impartial product.   But you’d convince no one.  As a visiting British journalist said, ‘the ABC is so biased it makes the BBC look like Fox News’.  That pretty much sums it up.

And yet Malcolm Turnbull appoints Justin Milne, who is the three wise monkeys rolled into one: he sees no bias, hears no bias and most definitely sees no need to utter a word against the bias of the organisation of which he is now chairman.  The point is that Labor could have appointed this guy!  Indeed, Labor’s appointee probably would have been better.  And I mean that literally.

Or look at who George Brandis and Turnbull appointed to the Human Rights Commission back when Tim Wilson decided it was time to leave the HRC and get pre-selected for a run at Parliament.  (By the way, hands up all of those who think Wilson has so far been a pretty big disappointment?)  They appointed Ed Santow.   He is their pick to be the so-called ‘Freedom Commissioner’ and take home the $350,000 p.a. paycheque.  This pick simply beggared belief.  It’s enough to make any long-time Liberal voters leave the party in and of itself.  The man never once said a word in defence of Bill Leak and what happened to him, or in defence of the three QUT students, or in support of enervating s.18C. Nothing, nada, zippo, silence. They might just as well have appointed a doorstop to the post and saved taxpayers the cost of Santow’s handsome salary.

Are Turnbull and George Brandis brain dead? Don’t answer, I mean that rhetorically, and I’m afraid some of you might not take it that way.

Then there are the appointments to our top court, the High Court of Australia. Here too ‘our’ side of politics is completely in thrall to the ABC/Ultimo worldview.  Mr. Brandis spouts nonsense about how he’s glad we don’t have a process like the US.  But you know what?  In the US the Republicans realise that most lawyers these days – unlike 30 or 40 years ago – are left-leaning.  That’s what happens when the university law schools become staffed with law professors who vote left by ratios of 9:1, or more.  So in the US the Republicans don’t insipidly say ‘we’re just appointing really smart people’ because if that’s your sole criterion then 90% of the time you’ll get a left-leaning judge.  No, the Republicans set out key criteria for who to select – such as a strong commitment to federalism, and a stated and convincing belief that constitutional documents are not alive and do not allow point-of-application judges to discover implicit things that the drafters and ratifiers explicitly rejected, and that top judges can’t just import European Court of Human Rights nonsense about ‘proportionality’ into domestic judging (and more so here in Australia, where we don’t have a national bill of rights and so all such assertions are wholly implausible, indeed close to judicial usurpation of decision-making power).  Then they might even do what Mr. Trump did and give a list of a dozen and a half people from which he’ll make his selections.  Do that and organisations such as the Federalist Society can critique the mooted names.

In the end Americans get candidates like Trump’s pick Neil Gorsuch, the best nominee to the US Supreme Court in eons.  You know he’s good in part because the Democrats are doing all they can to block him.

Compare that to Mr. Brandis.  Has he appointed a committed federalist to the HCA, even one?  To ask is to answer.  Has he appointed someone who will dissent on all the made-up ‘implied freedom’ cases and call them what they are?  Or the new fad for undertaking ‘proportionality analyses’?  Ditto.

But rest easy, because we’re assured it’s all apolitical on our top court and the best way to go is to appoint on pure smarts. As an aside, even on that basis Brandis has been weak.

So the Libs gave us Santow, Justin Milne, and no inspiring HCA pick since Callinan and Heydon.  Maybe it’s time to start taking the culture wars seriously.  Maybe it’s time – I know – to appoint Mark Latham to the HRC.  It would be a good start.  And next time any position at all comes up on the ABC Board or management (I haven’t mentioned Malcolm’s useless pick to replace Mark Scott) how about starting with the core prerequisite that it has to be someone who thinks ‘My God, there’s a problem here when they haven’t got a single, solitary person with a right-of-centre pedigree on any of their big ticket TV current affairs offerings’.  Not that tough really, is it?

Better yet, cut the ABC budget in half.  Or make it take advertising as they do in Canada.  The CBC simply can’t afford to alienate half the voters because it needs ad revenue.  So, yes, it leans left but it would never do the sort of Q&A crap the ABC throws out here.

Go ahead, George.  Pick up the phone and offer Gillian’s job to Latham.

James Allan, Garrick Professor of Law at the University of Queensland, is the author of Democracy in Decline