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An affront to democracy
Saturday, October 24, 2009

An affront to democracy

 The Spectator Australia, 24 October 2009, ix


The Brennan Report drives a coach and horses through our legal and constitutional framework, says George Brandis.

In the mid-1980s, when the Bjelke-Petersen government was at its worst, there was a famous moment during a television interview when Sir Joh was asked to define the separation of powers.  He rambled on for a while in his strangulated syntax, but it was obvious that he couldn't - the concept was simply unknown to him.  It was a 'please explain?' moment.  There was much arching of eyebrows and curling of lips among Brisbane's educated middle class, particularly the legal profession, for whom this evident ignorance of a fundamental constitutional principle summed up everything they despised about the man.

Father Frank Brennan - even then, a darling of those circles - would remember it well. He was in Brisbane at the time, in his capacity as a barrister, defending protesters who had fallen foul of the prohibition against street marches, while writing a book about civil liberties in Queensland. Fast forward 25 years and Fr Brennan is with us once again, this time in his capacity as chairman of the National Human Rights Consultation Committee.  A fortnight ago, fresh from a joust with Christopher Hitchens on Q&A (when does this man ever find the time to he a priest?), he handed the government its report on human rights protection find Australia.  At its heart lies an attack upon the separation of powers so comprehensive that it would have made Sir Joh Bjelke-Petersen blush.  But unlike Sir Joh, there is no plea of ignorance available to Fr Brennan.  He knows exactly what he is doing.

While there is much in the Brennan Report to welcome, such as greater Parliamentary scrutiny of legislation from a human rights point of view, the key recommendation is for a statutory bill (or 'charter') of rights.  The particular model favoured by Fr Brennan's committee is the so-called 'dialogue model' which, like so many other bad constitution-al ideas, comes from Canada. Under the dialogue model, the courts may issue a 'declaration of incompatibility' between an Act of Parliament and the charter, which it would then be for the government to overturn, if it dared.  And so. the theory goes, the courts and the elected arms of government are in constant dialogue with one another about human rights.

Leaving aside such obvious issues as the enormous amount of judicial time such a process would lake up, and how much litigation it would encourage, one need only state the dialogue theory to see immediately how it would politicise the judiciary.  The very premise of the dialogue model is that the courts are a separate locus of political power, by which the decisions of the elected arms of government are constrained.  Although in most (but not all) cases, declarations of incompatibility could be overturned by the Parliament, the very process brings in the judiciary as a new player in the political game.

Nobody should be fooled by the argument that what the courts would be doing is merely a matter of commonplace statutory interpretation.  Expressions of rights in such instruments are little more than political slogans, but they must he given meaning in a particular context.  And so a body of decisions would develop based not on legal concepts, but reflecting the judges' philosophical views about the meaning of such rights as freedom of association, freedom of expression, and 'the right to take part in public life'.

Courts would have to decide, for example, whether wartime conscription violated 'the right to freedom from forced work', or whether ‘the right to marry and found a family' mandated recognition of gay marriage and adoption.  True, such judicial declarations could be overridden, but should courts be making these decisions in the first place?  And at what cost for public confidence in the judges as impartial adjudicators, if they are forced to make decisions of a political nature for which, today, elected politicians must accept the responsibility and face the anger of those who disagree?

I wondered earlier when Frank Brennan ever finds time to be a priest.  Although he is an ordained member of the Society of Jesus he is, for all practical purposes, a politician (like many a Jesuit before him), and has been so for all of his professional life.  The difference between him and the politicians the public sees is that he doesn't sit in Parliament.

The world according to the Brennan Report would be a world in which political power is exercised by people just like Fr Brennan himself: intellectually suave. superbly educated, ineffably sophisticated, beautifully mannered, deeply sincere in their devotion to the public good, and brimming moral vanity with every plangent utterance.  It's just that nobody ever elected them.

The idea of societies being ruled by the good and the wise is hardly new.  As everybody knows, it begins with Plato, and his conception of a republic ruled by philosopher-kings.  It is a recurring theme throughout the ages.  St Augustine imagined a ruling caste of clergy and so it was in Western Christendom for more than a millennium.  At the dawn of the industrial revolution, Saint-Simon envisioned an ideal society ruled by technocrats and scientists.  In the 20th century, social theorists such as Max Weber and Julien Benda identified an elite class of bureaucratic rulers, to which Robert Nisbet gave a new name, 'the clerisy', which suitably evoked its quasi-priestly nature.  These days, the elite caste are lawyers - not just any lawyers, of course, but judges, to whom other members of the clerisy attribute a flattering omniscience.

In every iteration, across every age, faith in a ruling caste of the good and the wise has, at heart, been based oil the belief that the core questions should be decided for the good of the people, but not by them.  The sainted Tony Fitzgerald summed up the attitude perfectly when, in a newspaper column in 2005, he wrote, 'Democracy is too important to be left to professional politicians.'  Quoting Norman Mailer's observation that 'Democracy is a state of grace that is attained only by those countries (that) have a host of individuals not only ready to enjoy freedom but to undergo the heavy labour of maintaining it,' Fitzgerald proclaimed: 'As politicians are unwilling to take that task, others must.'  And who are those others?  Why, judges, of course. The fact that they are unelected was, for Fitzgerald, 'irrelevant'.

If you don't recognise the same sentiment underlying the campaign for a bill of rights, you're not looking.  At the heart of the Brennan Report is that same deep distaste for democratic values - so deep, in fact, that Fr Brennan dismisses with outright disdain the thought that the proposal should be put to a referendum.

I can hardly believe I am saying this, but given a choice between Platonic guardians like Frank Brennan, Catherine Branson and Tony Fitzgerald, and the rough-hewn populism of Sir Joh Bjelke-Petersen, give me Sir Joh any day.  Brennan is no more a respecter of the separation of powers than was Bjelke-Petersen.  But at least Sir Joh was prepared to run the gauntlet of the democratic system, something that the Brennans, Bransons and Fitzgeralds of this world would never stoop to.


  • Government and society

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