Category Archives: Law

A Quick Note on Andrew Bolt

I wrote a dissertation on censorship, and I’ve devoted thousands of hours to studying the right to freedom of speech, professional obligations of journalists, and the harms that are caused when people open their mouths and say things that are hateful, spurious, or just plain wrong. This is, for better or worse, my job. So I feel compelled to write about Bolt’s “I am, you are, we are Australian.” (I’m not going to link to it. I feel bad enough having read the screed; if you want to give him those clicks, do it yourself.)

There are so many things wrong with Bolt’s article, but I’m going to limit what I want to say to a couple of glaring errors he makes about Australian constitutional history. Perhaps if Bolt had done his homework , he’d note that the statement

[The writers of the Australian Constitution] were inspired by the creed that all citizens — those, at least, we admitted — are as one before the law.

is 100% false. In point of fact, Edmund Barton—first Prime Minister of Australia, and one of the drafters of the Australian Constitution—had the opinion that

the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.

This led to section 51(xxvi) of the Constitution, the so-called “race power.” The race power granted the Commonwealth the power to make special laws for anyone on the basis of their race.

Surprisingly, the race power did not extend to Indigenous Australians, until that exception was removed in 1967. Not that it made a difference, as section 122 of the Constitution, which allows for the Commonwealth to set law in the territories, provided for plenty of opportunity to act in paternalistic, degrading, and generally awful ways to the detriment of Indigenous Australians.

Then there is Bolt’s claim that

although, contrary to popular myth, they granted Aborigines the vote in all states where they had the franchise

which is a red herring of sorts. The Commonwealth Franchise Act 1902 excluded

aboriginal native[s] of Australia Africa Asia or the Islands of the Pacific except New Zealand’ unless covered under Section 41 [of the Constitution, which grants the right to vote for both houses of the parliament].

But section 41 left voting matters to the states. So speaking of the Constitution’s power to grant voting rights is more or less meaningless—state action and Indigenous Australian involvement did the work. The Australian Electoral Commission itself notes that the Constitution was interpreted to deny Indigenous Australians the vote  That’s why Queensland didn’t give Indigenous Australians the vote until 1965. That’s why compulsory voting wasn’t applied to Indigenous Australians until 1984. Which in itself is a form of civic disenfranchisement that, in a country where mandatory voting applies to everyone else, is a travesty.

(I haven’t even got to the unspeakably racist language Bolt uses. If anyone can explain Bolt’s term “race industry professionals” to me in a way that doesn’t make me swear loudly, I’ll give you a prize. That he uses “scare quotes” around “race” is equally terrible.)

Whatever his intentions, Bolt paints a false picture. He’s again abused his platform to spread misinformation, and on a subject about which he’s already contravened the Racial Discrimination Act once. The Herald Sun should pull this article.

When someone misuses their power to convey ideas to millions, and does so in a racist and harmful manner, they should be taken to task.  Bolt should have the book thrown at him—and that book should probably be on the constitutional history of Australia. The other editors at the Herald Sun have an obligation not to let their colleague spread falsehoods.

Disclaimer: If I’ve made any mistakes that are indicative of my privilege as a white Australian (or any other privilege I’m carrying—and I carry a lot), let me know, and I’ll do my best to rectify it immediately.


States of Emergency: What You Should Know, and What You Should Do

First: information. Check here for a map of the fire and its spread; monitor the Rural Fire Service (RFS) for updates and advisories. Listen to ABC radio for breaking news if you are in the car. And please, please, be careful. You cannot salvage your ruined property and life if you are dead.

There are currently 58 fires burning across New South Wales, of which 14 are out of control. The fires have taken out hundreds of homes and killed one person, with continued temperatures and winds making this fire season the most brutal in 45 years. The largest fire, at Lithgow, has taken out 40,000 hectares land, and is on course to merge with others fires in the region to create a mega-fire: a fire that “exhibits fire behaviour characteristics that exceed all efforts at control, regardless of the type, kind, or number of fire fighting resources deployed.”

Premier Barry O’Farrell has declared a state-wide state of emergency in response to the fires, and I want to explain what that entails. States of emergency are often contentious and misunderstood in civil life as—especially in this country—we aren’t used to wars, pandemics, or catastrophes on our shores. Yet understanding the state of emergency will help people understand what they should and should not do.

States of emergency in NSW are described by division 4 of the State Emergency and Rescue Management Response Act of 1989. Under the Act, police and emergency workers can evacuate people and destroy or appropriate property, or cut off power, in aid of fighting the fires and protecting public safety. It is an offence to exercise noncompliance or disobedience with personnel engaged in the emergency response, and responders are authorised to use “reasonable force” to achieve their goals. Responders, moreover, are not held liable for acts undertaken in good faith and in aid of the response effort. The Act also contains provisions for people affected by the emergency response to claim compensation on property damaged by responders.

The first thing is to understand the threat that justifies the state of emergency. We’ve had major fires in Australia since time out of mind, but these are the worst in NSW in almost half a century. Further, a mega-fire is not an out of control fire; it is an uncontrollable fire. This type of threat necessitates a response above and beyond typical fire fighting, and it is that need that justifies a state of emergencies.

This isn’t martial law, however, and you do have rights. There are lots of provisions within the Act to ensure compensation should you be affected by an emergency action. However, noncompliance is a crime; obstructing responders puts you, responders, and whole communities in jeopardy. Complying in an emergency sucks for everyone—responders don’t want to be in this position any more than you—but the risks to everyone should you not comply are immense. If you feel you’ve been coerced in bad faith, you should definitely sue for compensation. Just make sure you do it alive and well after the fires, and not posthumously.

Fire fighting is not necessarily something that is subject to intuitive explanations, and the expertise of those responding should be respected. Australia has some of the best people in the world when it comes to fire prevention, preparation, and management. Don’t undervalue their skills, and listen to their directions.

The 2013-2014 fire season is incredibly dangerous, and the potential costs for not aiding emergency responders through your cooperation are very high. Hopefully, they’ll never have to use the powers they’ve been granted; responders know that the longer they have to fight the more chance they have of dying, and they want this over as much as you do. So know what your rights are and how to enforce them, but also know the right time to do so.

If you want to help, get informed and follow the instructions over at the RFS website. Include your pets. And if you can, check the map and stay well away from the fire zones.

My dad’s partner lives out at Pheasant’s Nest, which is in the path of the fires in the Southern Highlands. Last time I heard they were prepared and still safe, but the next couple of days will be tense. My thoughts go out to them.

SCOTUS, DOMA, and Neutrality in Law and Politics

Recently, the Supreme Court of the United States (SCOTUS), issued a decision on the case United States v. Windsor. SCOTUS concluded that the Defense of Marriage Act was unconstitutional, as it violated the equal liberties described in the Fifth Amendment of the US Constitution. This is a small musing on the idea of political neutrality as it exists within my reading of that case.

Within both majority and dissenting opinions of the Windsor decision is a battle about what it means to be neutral on certain issues—to not discriminate between people or acts based on certain viewpoints. It is a fairly popular appeal, often seen in debates about freedom of speech [1].  Most every time someone invokes the right to freedom of speech, their argument boils down to the idea that the law should be neutral on, rather than dictate what views can and can’t be expressed.

In this case, the majority opinion is that the sexual orientation of a married or marrying couple shouldn’t matter, and that the federal government should remain neutral on this in making law:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. [From the synopsis]

The court then claims that while laws of marriage differ between states, they are consistent within states. DOMA upends that consistency, consigning same-sex couples to a different, lesser treatment.

What is interesting for my purposes is that the dissent also invokes neutrality [2]. Justice Scalia wants to say that the court violated its mandate (see p. 12 of the majority decision for more on that), and should have remained silent on DOMA until SCOTUS was required to rule on a case. He goes on to say that the proper role of the court is to remain neutral on this issue. Let individual self-governance and viewpoints win the day:

Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy…

…In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. [pp. 24-25 of Scalia’s dissent]

Scalia’s solution is SCOTUS’ silence, letting self-governed actions based on the beliefs of individuals proceed through individual suits, rather than rule against a swathe of (potential) cases.

Two versions of neutrality exist here—one, that the law should be neutral about what  marriage is but allow people to pursue their own substantive ideas; the other, that the law should be neutral on what conceptions ought to be allowed, and let that issue resolve itself on a case-by-case basis.

How does one navigate this [3]?

The answer is that you don’t—neither concept is properly “neutral.”  Any position taken, even ones that seek some concept of not judging an act, idea, policy, work of art, whatever, must perforce take a position on what is not acceptable. Neutrality isn’t neutral. Not judging is judging—even if it is only judging that we shouldn’t judge.

The majority opinion in Windsor is of that kind:

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency…By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. [pp. 22-23 of the decision]

This neutrality—that is, striking down DOMA because it discriminates against a viewpoint—is important because equality, and the basic respect a person is entitled to in getting married to the person they choose, are both incredibly valuable. Equal respect and treatment is what is important, not the neutrality about viewpoints.

In arguing that we should be neutral about what views count in court, Scalia (and Roberts, who forwards a similar position but is slightly less pissy about it) wants to say that the liberty of people to govern themselves as they please under the current system of laws is more important than equal rights to marry. That being fair to all the people who don’t want people to get married to whomever they choose is more important. The court should only step in to rule on the constitutionality of a verdict when it would decide a case (which it doesn’t for DOMA).

Equality versus liberty. That’s what is at stake here.

But wait, you might say. In striking down DOMA, we deprive people of their liberty?

Of course you are.  Ruling DOMA unconstitutional deprives people of the liberty—one of them, at least—to be bigoted through the use of the law. SCOTUS thought, and I agree, that equality is more important than the liberty to treat people as second class citizens through the legal sanction of DOMA.

The point is, however, that neither is neutral—both are charged with value and the contest comes down to what is more important. A couple of days ago, the court decided that equality was more important.

Justice Alito, to his credit, acknowledges this for us in his dissent, though probably not in the way he was intending:

We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of  the good that they adopt is not countermanded by the
Constitution. [p. 16 of Alito’s dissent]

I want to take this a bit further however, in claiming that we can’t be neutral. The constitution, according to SCOTUS, isn’t neutral. The fifth amendment privileges equality. It should.

This way of thinking has broad implications. It isn’t acceptable, from what I’ve outlined, to defend a policy, or right, based on a commitment to neutrality.  The values promoted by not allowing one position to count for more than another when we enact policy should win the day. That is, what should count is the value of dictating—or not dictating—what claims are to be considered valuable when we make law.

SCOTUS ruled that it is more valuable to not allow the law to view someone differently based on their sexual orientation, and in doing so it made the judgement that the converse view is a view worth excluding from lawmaking. That’s not neutral—that’s taking a stand. Scalia, to his credit, actually notes this:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. [p. 24 of Scalia’s dissent]

I sure hope so.

[1] All over the place, and for lots of different reasons.  Sometimes against direct violation such as the iconic Schenck v. United Statesbut also in terms of legislation that unfairly limits expression by certain classes of people indirectly, such as Lamont v. Postmaster GeneralOn evaluative neutrality, see Larry Alexander (2003), Is there a right to freedom of expression? (Cambridge: Cambridge University Press). The answer, to spoil it, is no.

[2] As an aside, I recommend giving Scalia’s dissent a read—it is so childish that it is amusing, if leaving one feeling a little dirty after.

[3] Other than say “Scalia is an evil jerk, to hell with him.” Which is fair.