Would the High Court uphold sections 18C and 18D of the RDA on constitutional grounds?

Section 18C of the Racial Discrimination Act (Cth) is a perennial favourite topic for right wing politicians, and conservative pundit Andrew Bolt has never stopped moaning about it ever since he ended up on the wrong side of a Federal Court decision Eatock v Bolt in 2011.

But there is also some respectable legal opinion questioning the constitutionality of section 18C. The most recent is an article by barrister Louise Clegg in the Australian Financial Review a couple of days ago.  She fearlessly asserts that the High Court is likely to strike it down when or if a suitable case comes before it.  She claims that High Court Chief Justice Robert French gave a thinly veiled warning to that effect in a speech late last year.

I’m nowhere near that certain, but I certainly have some doubts about the constitutionality of section 18C. I mused about them in a long and rather rambling post about 5 years ago, shortly after the Eatock v Bolt decision.   The occasion was a speech given at CDU  by then Federal Court Chief Justice Patrick Keane, who like French CJ also expressed some careful concerns about proscribing political speech which was merely “offensive” or “insulting”. Keane too is now a Justice of the High Court. His speech was titled “Sticks and Stones May Break My Bones but Names Will Never Hurt Me”. Despite that title and his expressed concerns, Keane CJ (as he then was) suggested that perhaps prohibiting free speech which undermined “human dignity” might be democratically (and presumably constitutionally) acceptable. He drew inspiration from American jurisprudential scholar Jeremy Waldron, who advocates human dignity as a suitable constitutional touchstone for courts to employ in reconciling and prioritising competing rights.

The problem with the notion of “human dignity” and its infringement as a determinant of whether political speech can properly be prohibited in a democratic society where political communication is constitutionally protected (e.g. Australia and the US)  is that it is potentially just as indeterminate as section 18C in its current terms.  In one sense it is a classic example of what Julius Stone called a “category of illusory reference”. A judge who disagrees subjectively with a particular exercise of free speech rights may have no more difficulty in labelling it a breach of “human dignity” than labelling it an act which “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”.

In any event, I thought it might be worth reproducing my musings about the constitutionality of section 18C over the fold:

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Posted in Law | 5 Comments

Politics and solving problems

Here’s a skilful pitch for government dollars. Why shouldn’t online appointments with medical health people be funded under Medicare. Why indeed? It’s all slickly done as you’d expect from Change.org. These guys have optimised social campaigns to a high art.

Anyway, it got me thinking along the lines of my recent essay on human services and evidence-based policy that this is all pretty crude. Right now we have a ‘market’ in primary medical services and that market is very heavily subsidised by Medicare. And that subsidy then leads to a situation in which lines are drawn as to what will and won’t be subsidised. Yet the subsidy should be a subsidy with a brain. That is the funding creates a lever by which one should be setting up an evidence base around what works and what doesn’t.

It would be a bad idea to imagine that this could be rolled out in any large way any time very soon. Because the skills don’t exist to convert a market into something richer in generating evidence of efficacy. If you pushed it, you’d get role play. The bureaucrats would try to implement something, but it would all be pretend and would be unlikely to be of much help.

My understanding is that some counselling services work and some don’t. My understanding is also that this is irrelevant to existing funding of counselling through Medicare. So rather than upset the apple cart and change any of this, wouldn’t it be good to identify how much money would fund what the campaign is seeking and then make some similar amount of money available for primary health care services predicated on the idea that a ‘brain’ would be part of the program which would help the system discover what worked, what could be improved and what should not be continued.

Posted in Economics and public policy, Medical | 1 Comment

Open government: Such, such were the joys

A quick placeholder for something more substantial hopefully soon.

Have a look at this ridiculous letter in response to a request to see a copy of the independent scoping study into future ownership options for the ASIC Registry. Judging by other experiences I’m aware of – at the State level in NSW – this is becoming fairly standard. Lucky we’ve finally got a Prime Minister who cares about these things. …

 

Posted in Democracy, Information | 11 Comments

Could sortition help against corruption, part II

In part 1, I looked at whether it made sense to have random individuals inserted into parliament, or to let policies be decided by juries full of randomly chosen individuals. Both were argued to be unworkable and likely to lead to more corruption, rather than less: policies that favour the special interests are so entwined with large legislative programs that it is not feasible or desirable to have them judged by juries of amateurs. And random members of the public spending years in parliament have even less incentive to be honest than members of long-standing political parties with brand-names to protect.

Here I want to mull over the possibility of using random members of the jury for appointments and for generating signals about corruption. The end result of my deliberations is that I can see use for random juries in major appointments within the public sector, but that I cannot see them working as a means of generating information.

For those who missed the earlier discussion on why having parliaments made up of random members of the public is not a good idea: a good example of problems you get with excessive diversity in parliament is Brazil, which has dozens of political parties and as such without long-established major players who have some incentive to care about reputations for honesty. Their parliaments are pretty close to random groups of populists, a diversity that has been strongly argued to make their politicians sitting ducks for special interest groups. Their parliamentarians have been argued to sell out to the highest bidder.

The fundamental problem, which is that without big players no-one has enough incentive to care about corruption, is an old argument you also see in other arenas: to keep big companies honest you need large shareholders with enough skin in the game to monitor and punish; to keep rogue countries in line and do something about international crises, you need large countries big enough to worry about and organise an answer to these problems.

For sure, there are some policy-areas where citizen juries might be useful, such as when it comes to decisions about politics itself, such as electoral boundaries, but there too the West has plenty of examples of well-functioning institutions that do the same job without citizen juries.

The post drew some knowledgeable commenters though who have been wedded to the idea of sortition for quite a while, and the proposals they brought up did make me wonder whether sortition could help with other decisions in our democratic systems. Mainly they pointed out the use of randomly selected groups of citizens who got to decide on appointments rather than policies. Sortition systems in Florence and Venice operating for many centuries were examples of how randomly chosen people voted in the ultimate leaders, though in those cases the ‘randomly’ chosen people were all members of the elite themselves.

The hope is that random members of the public would be pretty good at judging the bias and character of people. After all, that is pretty much what criminal-trial juries already do and in which random members of the public are arguably better than specialist insiders who cannot see beyond their own little corners.

So let us come from the problem from the other end and look at whether having the wrong people in charge is indeed a problem within our democratic system, then see how sortition would be applied to hire the right people, and then try and think through whether sortition would truly help if we consider the counter-moves of special interests. Continue reading

Posted in Cultural Critique, Democracy, Economics and public policy, Education, Ethics, History, Information, IT and Internet, Journalism, Law, Libertarian Musings, Life, Miscellaneous, Philosophy, Political theory, Politics - national, Print media, regulation, Social Policy, Society, Web and Government 2.0 | 4 Comments

Truth-telling in the epistemic quagmire of the politico-infotainment complex: Donald Trump Edition

Pilate said unto him, What is truth? And when he had said this, he went out again unto the Jews, and said unto them, I find in him no fault at all.

The Gospel according to John 18:38

Picasso once famously opined on art and truth-telling. “We all know that Art is not truth. Art is a lie that makes us realise truth at least the truth that is given us to understand. The artist must know the manner whereby to convince others of the truthfulness of his lies.” Today something very similar could be said of politics.

In politics as it’s practiced in the age of vox pop democracy lying is built right in. That’s not lying as in “I didn’t see Cardinal Pell” when you did. It’s lying in a deeper sense. At the very least it’s presenting a view that’s internally agreed upon – a view you may have argued against – as your own sincere position. It’s lying as in repackaging previously agreed policy as new policy. It’s lying as in saying that you think your colleague is doing a wonderful job, when you know he’s not. It’s lying when you come up with a slogan like “jobs and growth” and then you just grab whatever you cobbled into your latest budget and call it “A plan for jobs and growth”. It’s lying when you say Australia will be a second rate economy if it doesn’t have a GST and it’s lying when you say eight years later that a GST would be a monster tax that will ruin working families. It’s lying when you say that you’re going to the people early because speculation about an early election is destabilising government when not only did you start the speculation, but if you didn’t think it was in your interest you wouldn’t be calling an early election. It’s lying when you say you’re trying to strike a balance in industrial relations law between efficiency and fairness when your legislation is whatever you could get away with with the interest groups you had to deal with. The whole thing is put on and it’s increasingly obvious to all the punters.

And so when the post-reality politician Donald Trump is challenged about having said that his opponent Hillary Clinton would have made a “great” president a few years ago, instead of spinning and coming up with some lie about how he believed that then, but has had a change of heart (like Kevin Rudd’s about face on gay marriage), he just says stuff along the lines of “I was just lining my own pockets then. I was trying to get Hilary to do stuff for me, and that was part of the schtick”.  Should we be outraged by that? Well I’m not particularly outraged. Not that I wouldn’t like my politicians to be more truthful, but that horse bolted a good while ago.

I can’t see the difference between Trump saying that Hillary would be great one minute (when that suits his self-interest and political interest at the time) and then reversing those words in a different situation and the ALP opposing the Libs’ superannuation changes on the grounds that they were retrospective (which they weren’t). In that sense I think I prefer Trump’s transparency regarding his own motives to the usual duplicity. Likewise Trump’s son shows a refreshing honesty when he says that his father is not releasing his tax returns because it would just stir up scrutiny that he doesn’t want. Continue reading

Posted in Democracy, Philosophy, Political theory, Politics - international, Politics - national | 7 Comments

Italian Film Festival

Top Picks

Trailer Icon 03 Perfect Strangers (Opening Night)
Fueled by a fiendishly clever screenplay and an all-star cast, Perfect Strangers gathers a group of good friends around the dining table-three thirty something couples and a bachelor-where one suggests they make all SMSs and phone calls public across the course of the night. The reason: to prove they have nothing to hide. What seems like an innocent experiment results in some eyeopening disclosures-even a swapping of phones in a desperate concealment attempt-that shows how performance dominates our public lives.
As Genovese says, “Smartphones have become a fundamental object, perhaps the only one that we always carry with us-our ‘black box’.” Never has the time been so ripe to offer such a cinematic take on a classic morality conundrum.
☆☆☆☆☆ Film Dude
☆☆☆☆ IMDB

An excellent ‘dramedy’ about two very different women who go on a road-trip of Thelma and Louise proportions. Beatrice and Donatella meet in a psychiatric institution. While Beatrice is a brash, unhinged chatterbox; the institute’s newcomer, Donatella, is fragile and withdrawn. Still, Beatrice seeks out friendship with this punkish introvert and, during day release at a nursery, they board a bus and commence their girls-only adventure.
☆☆☆☆ IMDB

A prison drama that follows the story of young and conflicted Daphne who, after being criminally convicted for robbery, must adapt to a new lifestyle in a juvenile prison. In prison Daphne is mainly ostracised by the other girls but she soon finds comfort through her secret relationship with Josh, whom she meets across a fence in the separate male ward. Their relationship is not allowed in the prison so they exchange clandestine letters, brief glances and conversations through the fence that separates them. Through her romantic relationship with Josh and her new life in prison Daphne is finally able to discover herself, but can her relationship with Josh survive beyond prison life?
☆☆☆☆ IMDB

Giulia De Martino is 17 years old and already carries the weight of her family on her shoulders. Her mother has left, and when her father dies, it is up to her to look after her little brother, and the family garage, which has been turning out rally champions for generations. Overwhelmed with debt, Giulia, who is a promising racing driver herself, must win the GT championships at any cost. She reaches out to her older brother Loris, a former champion driver who has fallen into the spiral of drugs. Based on a true story, Italian Race portrays talent and deterioration, competition and toxic love in a way that is both accurate and realistic.
☆☆☆☆ IMDB

It’s 1995 in Ostia, on the Roman seaside. Twenty something Vittorio and Cesare are lifelong friends, almost brothers. They take drugs, drink and get into fights with other misfits like them. At home Cesare has a prematurely aged mother. Vittorio instead seems to have no one in the world, and when he meets Linda he sees in her a chance to build a normal life. He decides to find work and tries to enlist Cesare, who in the meantime has fallen in love with Vivian, a loner like him but full of desire to build a future.
☆☆☆☆ IMDB

Giulia’s world is an ancient one, suspended in time and built on rigour and sacred texts, which fiercely excludes anyone who doesn’t belong to it. Libero’s world is that which is inhabited by everyone else: by those who make mistakes, those who make do as they seek other prospects, and those who love unconditionally. When Giulia meets Libero, she discovers there may be another destiny awaiting her, one she can choose for herself. Theirs is a pure and inevitable love story, as the two young people embark on an intense period in their lives together, a choice that leads to Giulia being completely cut off from the religious world she belongs to.
☆☆☆☆ IMDB

One of the Big Three of Italian film releases from 1960, Rocco and His Brothers is a cataclysmic family saga charting the desperate attempts of impoverished Southerners to seek a better future in the Industrial North of Milan. The stories of the five fratelli as they fall victim to corrupt forces are elegantly steered to an explosive finale that is sure to still leave audiences reeling.
☆☆☆☆☆ Eye For Film
☆☆☆☆ IMDB
☆☆☆☆ Slant Magazine

Set in the heady summer of 1975, with the Communist Party seemingly on the verge of taking power through the upcoming general election, controversial Italian director, poet and intellectual Pier Paolo Pasolini is editing his most audacious film yet, the now notorious “Salò, or the 120 days of Sodom” when the negative is stolen from the film laboratory. Pasolini, a well-known communist who is openly gay, is also in the midst of writing a book condemning Italy’s political elite; and he is seeing a young man, Pino Pelosi, from the working class suburbs of Rome that are renown for organised crime. When Pasolini arranges a meeting to retrieve the negative, little does he know that he is walking into a trap that has many authors.
One of the most mysterious and controversial crimes in Italian history, the murder of Pasolini is treated as a thriller, highlighting the monstrosity of those who physically murdered Pasolini, those who ordered the crime, and those who covered it up.
☆☆☆☆ IMDB

Trailer Icon 03 Roman Holiday (Closing Night)
Living a life of privilege and boredom, Princess Ann skips out on her royal duties to enjoy some time as an everyday girl. As luck would have it, she falls into the arms of journalist Joe Bradley who, upon learning her identity, sees an opportunity for an exclusive. But he doesn’t bet on romance. Amid the laughs and screwball antics, Ann and Joe take in all the sights of Rome-from the Trevi Fountain to the Colosseum-in “a regal and highly illegal scoot-around” on the back of a Vespa.
☆☆☆☆ BBC
☆☆☆☆ IMDB

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Deliberative democracy: A sad story

Image result for deliberative democracy

What do we want? Deliberative democracy! When do we want it? NOW!!

This story from this larger study speaks for itself, but is illustrative of some of the themes of my previous post on deliberative democracy.

In the spring of 2004 we began work on a citizens’ jury
process that we co-designed with the residents of a town in northern England. One third of its population is minority
ethno-cultural heritage communities. The subject of this ‘doit-yourself jury’ was to be decided by the twenty volunteers, drawn at random from community organisations and the electoral roll.

At the end of a day-long workshop, the jurors settled on
the role of the police relating to drink and illegal drug use
among young people. This topic made local politicians
nervous, they asked that we postpone the jury until after the
local elections in a few months’ time. They refused to provide
information to the process or cooperate with it.

Having heard a wide range of perspectives from a diverse
set of ‘witnesses’ the jury sought to recommend a number of
solutions to the problems highlighted during the process. The
jury at no point divided along ethnic lines. The following is an
extract from our 2004 report about the process:

We observed that white residents living in areas of diverse ethno-heritage often feel patronised by conventional anti-racism campaigns. Such messages are promoted by the
same authorities who seem to have failed to address some
of the most urgent problems facing their communities.

Our final report suggested that some Asian and other minority communities might welcome a re-direction of resources towards initiatives that allow them to join together with white community members and bring pressure for change, especially since many of the most pressing social and economic problems affect all the local population regardless of their background.

We suggest that the re-building of democratic engagement
in northern England, as in many other parts of the
UK, will be greatly enhanced by an increase of face-toface
meetings such as those that form the essence of a
do-it-yourself citizens’ jury. However, such exercises are
only likely to be successful when they involve a broad
range of local community groups and are not controlled
by any one stakeholder or funder.

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Posted in Climate Change, Cultural Critique, Democracy, Political theory, Politics - international | 2 Comments