Friday, May 08, 2009

Personal confusions with a bill of rights

Neil Whitfield in his new role as boy reporter has just attended a gig on the question of an Australian Bill of Rights. I do love the idea of Neil as a boy reporter. I suspect he might be very good!

I used to be opposed to the concept of a Bill of Rights. This was partly a practical issue, the problems of definition involved. I also thought that we had a constitutional system whose long history provide a potent weapon against those who might misuse power.

Our freedoms had been obtained through blood and encapsulated in law and tradition. This provided a protection against those who might misuse power. They might do damage initially, but things tended to re-balance with time.

Since we moved towards a republican model I have become less sure of my position. My problems here are twofold.

The desire to move to a new form of government involves a conscious rejection of our past. A modern Australia requires a new form of Government, republicans argue. The difficulty is that our system of Government is so enmeshed in our history that rejection of one part of tradition leaves the remainder uncertain. We cannot necessarily pick and choose as to what will survive.

My second difficulty is that nobody knows what form an Australian republic might take. The favoured approach to pushing a republic through starts with a simple yes no plebiscite to the question do you favour a republic. Properly phrased, this might get through in terms of a simple majority. The intent then is to give the Australian people various choices, leading to the selection of a republican model that is preferred or at least least disliked by the population.

We now live in a heavily regulated society. The boundary between private and public space has been constantly shifted in favour of the public. I may argue against this in the general and the particular, but there seems to be no end to the trend.

I accept that I am old fashioned in some ways.

My own thoughts and perceptions about the relations between individual and state, about the use and abuse of the powers of the state, were influenced by the Vietnam war period. Then I had to make choices about personal action in circumstances where my religious views brought into stark contrast the conflict between the rights and powers of the state versus individual conscience.

A little later when I joined the Commonwealth Public Service on a year long training program as an administrative trainee, one part of our training dealt with ethics. This directly addressed the question of the appropriate relations between public servant and Government in the context of individual ethical views and of the conflicts that could arise. How should a public servant behave when his ethical views came into conflict with things directed by a Government?

The brainwashing processes used during the Korean War to progressively replace one set of values and beliefs with another were discussed. Adolf Eichmann was used as an example to point to some of the conflicts and problems involved, at the way in which a series of individual decisions and ethical compromises could lead to efficient inhumanity in the service of the state.

This was a very different world from today's focus in code of conduct training on what constitutes individual corruption. The broader ethical and principle questions we were concerned about have largely vanished.

All of this means that I am slowly coming to the view that some form of Bill of Rights may now be necessary to protect us against our own governments' actual and potential abuse of power.

My problem is that I find discussion in this area very confusing.

There seem to be two schools of thought. One sees a Bill of Rights primarily in terms of proscription of behaviours and views they believe to be incorrect. A second, the use of such a Bill as a protection against arbitrary Government action. So far, there is no common view as to what a Bill of Rights might involve.

There is also dispute between a legislated Bill of Rights and the incorporation of principles in the constitution itself. Some of those who support the first do so because they see the second as impossible.

I writing about management, I have pointed to the way in which topics become popular in discussion when the opposite is happening on the ground.

The great emphasis on people management coincided with the rise of process engineering and mass restructuring. The emphasis on the value of the brand coincided with the greatest period of brand destruction in modern history.

I think that something of the same has been happening over recent years in the discussion on rights, although the process is far more complex.

I will return to the old fashioned Belshaw theme to finish this post.

As a child, I read about and shuddered at the use of partial drowning as a torture technique by the Gestapo. To my young mind, this was almost of the exemplar of Gestapo horror. Consequently I could not understand or accept the use of so-called waterboarding.

In similar vein, I could not understand how such a culture of abuse of individual rights, of systemic cruelty, could emerge under the Howard Government. Worse, I could not understand why we accepted it for so long.

Looking back at Australian history, there have been many abuses of state power. However, these stand out because they take place against a backdrop of slow improvement and of protest at the time and later that constrained what Government did.

I think, I haven't attempted to count it, that there were more cases of state perpetrated individual injustice under the Howard Government than in the entire history of twentieth century Australia outside the war years and their immediate aftermath.

In saying this, I am putting aside the specific question of our treatment of Australia's Indigenous people. This raises a different set of issues.

My problem is that I think that this systemic pattern continues because we have acquired a mindset that no longer questions.

Let me finish with an example that some might find very odd. Recently, the Rudd Government announced measures that would require young people up to the age, I think, of twenty five to either work or study. These appeared to be universally welcomed.

I was struck by the emphasis on compulsion. Of course Governments providing money can set terms and conditions. They have to. Yet the language that was used, the focus on what kids must do because we know best, to my mind simply continued the authoritarian mindset.


Lexcen said...

It's funny how most people assume we have the right to freedom of speech. Maybe just that right would be enough reason draw up a bill of rights.

Jim Belshaw said...

Good morning, Lexcen. You give a good example. I agree that freedom of speech is central, yet it has also become increasingly constrained by other legislation. We have freedom of speech so long as we don't say (or write) any of an ever growing list.

Legal Eagle said...

Your thoughts about compulsion are very interesting. Over the years I have become steadily less impressed with paternalism, although I still think paternalism is needed in some contexts.

The interesting thing with the Howard government was that it was very paternalistic - a kind of "Father Knows Best" approach.

I wonder if people have become inured to rights discourse, because people complain about their rights being violated all the time, so everyone just switches off - it's a case of the boy who called wolf.

Jim Belshaw said...

I think that you are probably right on your last point, LE. There is also a problem, I think, in that discussion on so many issues has been couched in terms of rights that the word itself has lost meaning.

If you look back at our history, the actual number of "rights" was quite small. The things that come to mind as rights are things such as trial by jury, the right to vote, equality of treatment before the law, the right of association, freedom of the press, freedom of religion.

I suppose that these are things that we can think of as Rights with a capital R. Their evolution took a particular form in Australia because of our history - certain rights were effectively achieved here before the UK.

The concept of rights has become greatly extended and, to a degree, conflated with the concept of entitlement.

I am concerned in all this that in our concern with rights we are in fact losing sight of our Rights. The outcome is an erosion of civil liberties.

To my mind, one thing that we forget at our peril is the ever growing capacity of the state to monitor and enforce.

In the past, practical limitations on state power provided a barrier to abuse of that power.

There are many examples in Australia where Governments have tried to do things that later generations would regard as misguided or just plain wrong. Some of these lead
to considerable injustice.

In a society with poorer communications, less capacity to record or find information, fewer resources to enforce compliance, individuals had a greater ability to avoid the eye of the state.