Magna Carta and ‘vox pop’ democracy

Intriguingly there are two substantial permanent monuments to Magna Carta at Runnymede. Both are American. This one was erected by the US Bar Association in 1957.

I was recently asked to participate in a panel discussion on Magna Carta and our democracy by the Australian Archives. The discussion will be replayed on Big Ideas on Radio National this coming Monday 20th July (now here), but you can watch the proceedings here if you’re especially keen. In the meantime, mostly over the fold below here’s a blog post I did in preparation for the event. It’s on the NAA website here. I have also drafted an additional one with some specific suggestions above and beyond a People’s Chamber, which I’ll post in the not to distant future.

It was an enjoyable process (though I was half inside a cupboard so lavishly spaced are the hotels of leafy London.) The panel was dominated by lawyers, the most eloquent of which I thought was Gillian Triggs, but over the course of the discussion, it dawned on me how much they were gravitating towards solutions that would be imposed by lawyers – all very well paid for their time I hasten to add, though that’s not the main point which is that they are an elite – indeed an elite elite. I think we need to do better than that. You can hear two different approaches to doing a bit better than that. More participatory approaches – championed by Pia Waugh particularly, and more deliberative ones championed by me.

(Apropos of nothing much, Magna Carta had standards in it – weights and measures for wine and other things – just as Hammurabi’s code did. You just can’t keep those emergent public goods from emerging and then attaching themselves to governments to improve their situation.)

If we compare our own system of government to King John’s government – either before or after Magna Carta – there is no comparison. We have a robust democracy rather than a tyranny at the very beginning of a centuries long process by which the West came to impose the rule of law on its rulers. In contrast to the barons of thirteenth century England, if we’re unhappy with our government, we vote them out.

Yet all is not well in our democracy. Continue reading

Re-imagining a Labor election manifesto

Despite the fact that Federal Labor has consistently led in opinion polls over the last year or so by between four and six percentage points, most pundits (including the writer) have very little confidence that Labor will win the next election. In fact I expect they will more than likely lose.

Bill Shorten (assuming he survives as leader) is unlikely to win by continuing with his small target “me too” strategy where there isn’t a cigarette paper’s width between the policies of Labor and the Coalition on hot button issues like national security/terrorism and asylum seekers.

This article is based on the (admittedly courageous) proposition that a small target strategy is not the only way to win an election from opposition. It is possible to achieve government by winning people’s hearts and minds with an imaginative and popular positive policy platform, even though the last Opposition Leader who succeeded in doing so was Gough Whitlam in 1972. Of course I might be wrong, but here is my stab at an election policy manifesto that I reckon Shorten or his successor should adopt:

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Against decentralisation: why crowded is good

From time to time you hear the argument that Australia would be a much better place if only we could actively “decentralise” population. The argument is we should encourage people out of our big cities – notably Sydney and Melbourne – and into smaller cities, like Wollongong and Ballarat. In pursuit of this, various governments over the years have tried to move departments out to regional cities. The Victorian government under John Brumby even ran an advertising campaign in Melbourne encouraging people to move out and resettle in regional Victoria.

This sort of argument has often been based on the idea that these regional areas have lots of existing infrastructure that we can exploit at little cost. It has been encouraged by talk of the “Death of Distance” and “The Flat World” – the idea that globalisation and modern telecommunications are making location obsolete, so you might as well live in the countryside. It’s particularly popular wherever there are plenty of marginal regional electorates.

And this argument seem to be spreading. So here’s the case against spending government resources to actively encourage decentralisation.

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Citizenship-stripping and the Constitution

TONY ABBOTT CITIZENSHIP PRESSERThe chorus of public concern over the constitutionality of the Abbott government’s citizenship-stripping proposal is growing.  Malcolm Turnbull has again been emboldened to break ranks with his Prime Minister while denying he is doing any such thing.

It will be ironically appropriate if the citizenship-stripping issue ends up derailing Abbott’s plans to revive his ailing leadership in the wake of the failed spill motion against him earlier this year. Abbott’s strategy ever since he achieved Liberal Party leadership in late 2009 has been squarely based on racist dog whistling and inflaming national security paranoia.

The fact that citizenship isn’t even mentioned in Australia’s Constitution flows in part from similar racist sentiments among our Founding Fathers. They couldn’t work out a plausible way to define Australian citizenship without conferring it on Chinese, Japanese and Pacific Island migrants not to mention Aborigines. As South Australian delegate James Howe put it: “the cry throughout Australia will be that our first duty is to ourselves, and that we should… make Australia a home for Australians and the British race alone.”[1] No sly Abbott/Howard-style dog whistling in those days; our forefathers were openly and proudly racist.

The solution our Founding Fathers came up with was to avoid mentioning citizenship in the Constitution, but give the new Commonwealth Parliament wide-ranging powers to make laws with respect to immigration and “aliens”.  The new Parliament proceeded to enact the White Australia policy.

This deliberate constitutional silence is one reason why it isn’t certain whether the Abbott government could now validly legislate to confer the power to strip citizenship on a Minister rather than a court.

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Stripping Australian citizenship – the illusory protection of judicial review

Human rights lawyer Kerry Murphy has a very useful explanation of the weakness of judicial review as a safeguard against new laws foreshadowed by the Abbott government which would permit arbitrary ministerial stripping of Australians’ citizenship from those accused/suspected of terrorist activity.  However, if anything the situation is even worse than Murphy says.  Citizenship is arguably the most fundamental right any Australian possesses, without which no other human rights protection is assured, even the most basic application of the rule of law. And yet our citizenship right itself is not protected by our Constitution.

We don’t actually know exactly what provisions the citizenship-stripping law proposed by Abbott and his Immigration Minister Peter Dutton will contain, but you can bet they will include the following:

  1. A subjective opinion clause;
  2. A clause requiring national security or criminal intelligence information to be withheld from a suspect and his lawyers but nevertheless to be used against him.

These provisions have become increasingly popular with governments at both federal and state levels since the “moral panic” induced by September 11.  As a result, the combination of enthusiasm for greater power and less accountability on the part of both politicians and intelligence agencies, and a relatively supine response on the part of the High Court, has had drastic adverse consequences for the freedom and human rights of all Australians.  It is hardly an exaggeration to observe that in today’s Australia the right to impartial judicial review of executive government action, which was intended by the drafters of our Constitution to be a fundamental aspect of our system of national governance, is now an optional extra that governments can effectively negate almost at will.  And yet hardly anyone knows about it.

That is probably because some of the concepts are quite difficult to explain clearly to non-lawyers.  Nevertheless, bear with me. It’s important and worth “unpacking” the argument.

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Ahead of the zeitgeist on metadata

Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.

I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:

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Debt and deficit emergency half-full glass

That Tony Abbott should have been forced this week to concede defeat on fiscal reform by declaring partial victory over “debt and deficit” (“the glass is half full”) is both ironic and fitting. As I discussed in a fairly recent post, Abbott was responsible for bringing to destructive perfection the toxic mix of “small target” strategy and relentless negativity that both major parties now employ when in Opposition. Tony has now been hoist with his own petard, brought undone by his own success in convincing the electorate to believe erroneously that governmental debt and deficit are universal evils that can never be justified. He finds himself just as helpless to achieve a budget surplus in the foreseeable future as his ALP predecessors, and for essentially the same reasons: unexpectedly slow recovery of revenue in the wake of the Global Financial Crisis; progressive collapse of iron ore and coal prices; and a recalcitrant Senate with an opportunistic Labor Opposition gleefully intent on being just as relentlessly negative towards Abbott as he was towards them.

Peter Hartcher had quite a good article in yesterday’s Fairfax media (which I can’t now find) outlining the recent history of tit-for-tat political bastardry that has brought Australia to our current situation of almost complete governmental paralysis on fiscal policy. However, the cycle of retaliatory fiscal mischief goes back decades. I would date the phenomenon back at least to Paul Keating’s cynical and unprincipled demolition of John Hewson’s Fightback policy in the lead-up to the 1993 election, a tactic that Keating pursued relentlessly notwithstanding that he himself had advocated a GST only a few years previously and that John Howard by contrast had had the guts and integrity (not words that most on the Left would associate with him) to support most of the Hawke/Keating government’s necessary deregulatory, market-based reforms over the previous decade.  The gloves were off on fiscal policy from that moment on.

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Opposition to Government Strategy 101 (OGS101)

NB This post makes extensive use of the footnote plugin.  The footnote numbers are very small, but they are hyperlinks so you can jump to them by clicking.

NBB The fact that I argue below that a major reason for the demise of the Newman government was the standard template opposition strategy that I outline/discuss does not mean that I personally approve of LNP policies or performance (or those of Tony Abbott for that matter).  In fact I think the LNP richly deserved to be booted out (anti-bike laws, politicisation of judiciary etc).  However, I don’t think the ALP would have gone within a bull’s roar of winning in the absence of OGS101, nor is it obvious to me that Labor will be a significantly better government.  After all, they’re not even promising to repeal the VLAD (anti-bikie) laws, just to “review” them (in itself a classic example of OGS101 in operation).

Yesterday’s seeming electoral triumph of Annastacia Palaszczuk’s Labor rump in Queensland after a single term of LNP government underlines the extent to which the secrets of successful continuous campaigning for an Opposition party have come to be reduced to an almost foolproof formula that almost guarantees successful undermining of all but the most wily or dead lucky incumbent government, even by a telephone booth-sized Opposition with very little visible talent or experience.

The formula largely accounts for the results of the last 3 federal elections and at least the last 2 Victorian and Queensland state elections. It is found in a political spin doctor’s playbook called Opposition to Government Strategy 101 (OGS101).  The formula is well known to spin doctors on both sides of politics but has been kept secret from the general public until now.  Fortunately I have now obtained a leaked copy and reproduce the Executive Summary over the fold:

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