The current conservative philosophy for governance is well described by Paul Kelly in a recent op-ed titled: At war over the law. This is the new brand of conservatism which is now competing with liberalism as the basis for governance. Forget left-right, that is gone as a binary distinction and the only use for it is to construct strawmen. Conservatism is based on executive dominance where the interests of the state trump individual rights. This is the opposite to republicanism and liberal democracy.

Kelly writes:

The bedrock view of the lawyers' rebellion is their refusal to accept the legitimacy of executive action based on statute and invoking the national interest.

The failure of this reading of government is that it elevates the executive and state above the individual. Coupled with a weak legislative - which is always a problem in parliamentary systems, this allows any despotic statute to justify the removal of judicial rights or an individual's full judicial expression.

The Migration Act of 2005 has been passed as statute law, but contains measures in it that allow arbitrary executive governance. It is a bad law and is the statutorial basis for the government to act arbitrarily. Which the executive did with Haneef by detaining him in an immigration detention center after the judicial could find no reason to detain him.

It was the executive in this case who refused to accept the authority of the judicial. This is a classic case of state of exception governance.

The other aspect of emergency is that it is done to save the state; maybe by suspending the constitution in order to save it (a-la Fiji), or in some other national interest where the collective concerns over-ride the political rights of individuals. This enables arbitrary governance from the executive. The handling of the Haneef issue carries all hallmarks of exception adhoc government.

So under the conservative definition of government; a weak legislative enables arbitrary government action in statute, which allows the executive to act arbitrarily, including ignoring the authority of the judicial, and to cancel an individual's political rights in the national interest.

At the best result of this style of governance is arbitrary government. At the worst it is tyranny.

We have constructed our political system with political technologies such as constitutionalism, federalism, separation of government branches, checks and balances, elected representatives, etc etc specifically to stop arbitrary government. Allowing it under executive dominance, national interest or emergency governance completely undermines the whole system. We do not have a republican system anyway, but we do have a liberal democratic one, and it undermines that completely.

Kelly continues:

Brennan slammed the detention powers as a "remarkable infringement on a person's common-law rights".

Such an expansion of executive power was undertaken without sufficient safeguards, the defect being "to transfer the protection of individual liberty from the judicial to the executive branch of government".

Brennan's remarks are illuminating. They make the pivotal issue one of power between executive and judiciary. His clear implication is that public acceptance of the laws cannot validate this defect nor make it acceptable.

There are two issues both of which form the core of republican doctrine. A simple, though not complete test, of republicanism is if the minority accepts majority rule, but with the knowledge they are secure in their rights. Public acceptance of laws cannot trump that. Otherwise it is known as tyranny of the mob.

The other issue is and in adjunct to the above; under republicanism an individual's political rights are universal, isotropic and inalienable. The executive and legislative cannot intrude into those rights. It is an area of absolute liberty an individual has which the executive and legislative are denied authority over.

This is why left-right is only useful for the construction of strawmen. The binary political descriptor is liberal vs conservative where liberal is individual as the dominant political entity and conservatism is the state as the dominant political entity. Under conservatism the state is generally embodied in the executive acting in national emergency or exception.

Most Australian conservatives are liberals. And those that wish to call themselves conservative or live conservative lifestyles,they have that liberty to live their lives as they choose. However this modern conservatism is unfit to inform governance. The end result - very quickly I might add - is executive rule and arbitrary government. We have seen this numerous times under the Howard government.

Another reason why left-right is meaningless is that I am sure future Labor governments will use emergency government and executive rule to dominate the political process. Already we have seen Rudd accept a war cabinet over the indigenous issues in the Northern Territory and not fight for liberalist or republican principles in the Haneef case.

This style of governance is becoming a new legal order in western democracies; "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

Another aspect of emergency governance is that it makes the politics unitary. Essentially the adhoc decisions follow the political path of the executive and not the deliberative path of liberal democracy.

Kelly writes:

As explained by journalist Leigh Sales in her recent book, while John Howard could have brought Hicks's suffering to an end, so could his own lawyers by striking a plea bargain three years earlier. They didn't. Their aim was to wage a political campaign to break Howard's will and force his complete backdown over Hicks. It failed.

Once exception is established the judicial component is not fought in the legal or court space - it is elevated by the executive into the political space. The politics become unitary and public.

We saw this in the Haneef case were the guilt/innocence of the defendant was fought out in the public political space by the executive, the AFP and Haneef's lawyer. By establishing exception or emergency and ministerial fiat over the judicial decision the fate of the individual ceases to reside in legal order and becomes one of pure politics. It escapes the court and the trial is conducted publicly in the political space.

This is a failure of executive governance not the judicial. In fact the executive probably prefers it to be fought in the public space than under the less controllable legal outcome of a court.

Australia is poorly organised to fend off the establishment of the new exception legal order. We do not have a separate executive and our legislative in parliament is already under the thumb of the executive. The creation and passing of laws are the domain of the executive in parliament.

We do not have a constitutionally entrenched bill of rights which prohibits the executive from intruding into liberties and judicial mechanisms the individual has to sue the executive to have their grievance heard - such as habeas corpus. Rights ensure that an individual is dealt with uniformly, apolitically, not under exception or arbitrary executive intrusion.

John Howard recently argued in an Australia Day speech:

I believe this [establishing a Bill of Rights] would be a big mistake for our democracy. A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society.

Howard is arguing that only a vigorous executive can protect an individual's freedoms. That the state or 'national interest' dominates the capability of a society to maintain civil order. This is in direct opposition to republicanism and liberalism. It also carries the irony that there is no aspect of an individuals political or judicial expression that can be denied executive interference. Consequently in this form of governance the state is politically dominant over the individual.

Rights are not about 'a right for everyone to go to school' or 'a right to dignity'; they are brutal and explicit constitutional language which denies the executive and legislative intrusion into an individuals liberties.

A Bill of Rights would limit executive and legislative action. They create a sphere of liberty that government cannot intrude into. If the government does, it enables the individual to sue the government directly through the judicial.

Anyone interested in a very modern Bill of Rights which is explicit and subtractive from government should read Avocadia's Bill of Rights v0.2.

More: Bill of Rights articles on SSR.
Cam Riley: South Sea Republic. Freedom, liberty, equity and an Australian Republic.

Comments
  • Lewis . # . 1/1
    I've never understood the claim that an executive body can protect individual "rights" better than a hard, black and white enunciation of a Bill of Rights. I suspect this is because it's a non-argument: inherently the executive has every reason to pervert the rights of the individual for political expediency, and cannot therefore be trusted with protecting them.
    • Alan . # . 3/3
      I have to disagree strongly on two points. The right to dignity matters and the the Avocado draft is not a comprehensive example of a charter of rights.

      The best practice charter is the South African bill of rights which delivers a clear and unanswerable rebuttal to the all power to the PM crew.

      . Section 8 Rights

      This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

      The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

      The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

      A charter of rights must state in clear and unambiguous terms how the rights are to be enforced and why rights matter more than executive niceties. The South African bill continues:

      Section 8 Application

      (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

      (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

      (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court -

      (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

      (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

      Second, the right to dignity is in a sense the oldest of entrenched rights. Habeas corpus, which anchors all other rights, is in a certain way a special case of the right to dignity. When King John agreed to proceed against no-one except by the law of the land and the judgement of their peers, he recognised the inherent dignity, if not the actual legal equality of all his subjects.

      South Africa provides:

      Section 10 Human dignity

      Everyone has inherent dignity and the right to have their dignity respected and protected.

      The right to dignity has been invoked by the Constitutional Court on a number of occasions, most notably in the great cases of Minister of Health v Treatment Action Campaign which dealt with HIV/AIDS policy, S v Makwanyane which ended the death penalty, and the Same Sex Marriage case.

      Australia, when we write a bill of rights, could do worse than remembering that the right to dignity matters.
      • Slightly amusing, but the last couple of revisions I have made to that bill of rights is to remove a few clauses, to pare it down to primitives. I think that's the Lisp infecting the rest of my thinking :- )

        No, to be serious, I tried to think about what a particular clause was saying, what was it supposed to protect; if I couldn't think of an example that wasn't covered by a more primitive right, it was thrown out.

        I had been thinking at one stage that if I tried hard enough, I could probably get it down to two rights - Right to Property, and Right to Sanctity of Self. That might be verging on silliness though.

        My rights are inviolable. No legislative or executive act - by Federal, State or local government - may remove my rights.

        Personally, I kinda feel that's pretty clear and unanswerable. Clearly your mileage varies.

        The right to dignity you talk about is wonderfully nebulous, by the way. The few cases you cite seem to suggest that the right to dignity is basically being applied as a blanket "We don't like this, what Right can we use in order to knock it down" Same sex marriage, health discrimination, and death penalty? The first two are covered by a basic equal-treatment clause.

        I have the right to equal treatment under the law no matter my race, age, gender, beliefs, sexual preferences , wealth, health, associationsor prior criminal record.

        I won't argue the third - death penalty - because I with you; just not the way you think.

        • Alan . # . 2/2
          Paring rights down to primitives is bad drafting. All you're doing is inviting an endless replay of the abortion debate in the US where Roe v Wade grounded a derived right of privacy in several other provisions of the US constitution. It is better to state rights up front and not have silly claims about judicial activism.

          Paring rights down to primitives is also undemocratic. You're asking people to consent to a charter of rights whose contents you'd make essentially unknowable. You might even then get critics of your bill arguing that primitive rights justify the courts finding wonderfully ridiculous derived rights based on 'We don't like it'.

          You're welcome to characterise my post as ridiculous. Just don't expect not to have the weaknesses in your own argument treated with similar discourtesy. Some may be surprised, for example. to find the only enforcement mechanism in a bill of rights is appeal to the goernor-general, rather than a court.
          • I don't remember actually calling it ridiculous. I don't even recall thinking so.

            For your last point, I don't think it unreasonable to believe that a bill of rights would act as a set of laws and thus be relevant in a court of law. I added the appeal to the GG as an after thought, really, an extra route of appeal that would was intended to be speedier than a court, the wheels of which occasionally grind exceedingly slowly. IIRC, cam and I had been talking around the idea of the prime role of the GG being the defender of the Consitution and - by extension - the bill of rights, so I threw that explicit right in as well, leaving the right of the court to rule on law implicit.

            You are right of course in correctly pointing out that too primitive a level of rights expressed suffer exactly the same undemocratic and poorly thought out basis as a single nebulous right to dignity.

      • cam . # .
        I disagree. Rights have to be subtractive on the executive and legislative as well as restrictive on the judicial. They cannot be declarative. The means to achieve that is with precise constitutional statements. Not broad ambiguous ones, which a right to dignity is.
        'Sworn to no party, and of no sect am I.' Frederick Vosper's republican motto.