On Privilege

ON PRIVILEGE
[This essay was published in 2009 by Melbourne University Press as part of their series of essays on various subjects]
I saw privilege before I heard the word or learned its meaning.
My father’s parents lived in an enormous house in Toorak. With a vast garden, a covered walk, a pond, a rose-garden and a tennis court, it stood as a dignified monument to my grandfather’s mercantile success. A millionaire in the days of pounds, when being a millionaire really meant something, he was old, rich, clever, kindly, modest and powerful. My grandparents held splendid parties at which they entertained politicians and industrialists and people who were interesting or glamorous or both.
They had once had a weekender at Blairgowrie: a bluestone mansion with its own tennis court, nine-hole putting green and private jetty. In that magical world my father grew up.
As a child I saw these things but did not question them. I knew that most people did not live in mansions like this – our family home was modest by comparison, but I took for granted the fact that we had a tennis court at home, too. If I had thought about it (which I did not) I would probably have assumed that some people choose to have a tennis court, and others do not. That’s how you think as a 5-year old.
It would be some years before I realised that my parents and my grandparents enjoyed privileges which many would envy.
My father was a cherished only son. Photographs he took, on glass negatives, showed elegant tennis parties which could have been drawn from the world of Jay Gatsby or the Mitfords. His parents helped make the rules. They got what they wanted and he got what he wanted. Nothing was too good for him – a first-rate education at Melbourne Grammar and Melbourne University, a Riley sports car. But then, the Second World War.
* * * * *
The Japanese prison camp at Changi in Singapore is justly notorious. Thirty percent of those who were held there did not survive. They died of starvation, disease and mistreatment; of broken bodies and broken hearts. My father was there from February 1942 to October 1945. He survived, but came out changed.
Judging by the tone and content of the diary he kept every day in Changi, he went in as a priggish, spoilt, privileged young plutocrat, for whom wealth, position and success were an unstated assumption. He came out as a genuine egalitarian who believed everyone his equal in humanity and potential. Photographs he took in Changi, until the Japanese secret police cracked down on contraband, show the deteriorating condition of the prisoners, and the wretchedness of their circumstances. Photographs he took in the camp immediately after the end of hostilities show most of the survivors reduced to walking skeletons. He noted at one point in his diary that “company is more important than circumstances”.
After the war, as a Consultant Surgeon at the Alfred Hospital, he was a powerful, authoritative figure who was feared but admired. Feared because of his exacting standards in surgery; admired, not because of his family or schooling, but because of his skill and dedication.
He had the privileges of wealth, education and talent. He never misused the opportunities they opened up for him. And although his parents’ wealth was dissipated by bad luck and bad management, he used his education and his talent to pioneer new methods of surgery and for the good of many thousands of patients. He never, to my observation, acted as though privilege entitled him to anything hard work would not earn.
* * * * *
I had not looked up the dictionary definition of “privilege” until I sat down to write this essay. An informed guess turned out to be more or less accurate: “private law” is the Latin origin of the word. Privi-legium – a special law having reference to an individual.
Originally, the effect of a privi-legium on the individual might be good or bad: it might confer an advantage or benefit; or it might impose a penalty or forfeiture. English law also knew this darker form of privi-legium – a bill of attainder was a law passed by the Parliament by which a peer was declared attainted in blood and his property was forfeited.
From the 12th century in England, an ordained clerk who was charged with a criminal offence could raise the privilege of clergy (more popularly known as the benefit of clergy). Originally, it meant that he could be tried only in the Ecclesiastical courts, and the King’s courts had no jurisdiction. The merger of Church and State, when Henry VIII found Rome too doctrinally restrictive in matrimonial affairs, changed the distinction between the King’s courts and the Ecclesiastical courts, and the privilege of clergy gradually evolved into a system of rules which exempted a convicted cleric from capital punishment. The privilege was abolished in 1827.
Another distinctive form of privilege ended in 1642. Until then, the Stuart monarchs were able to dispense with the law in particular cases. The King’s ability to rule beyond the law, and to set the law aside in particular cases, was one of the hallmarks of the Stuarts – a natural out-working of the Divine Right of Kings. In 1627, Charles I was running short of money, but Parliament would not grant supply. He asked various nobles to advance compulsory “loans”, with no definite plan for repayment. Sir Thomas Darnel and four others refused. The King ordered their arrest. They sought habeas corpus. The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King]. The judgment of the court was ambivalent. The Judges decided that the prisoners should be remanded in custody, but said that in later cases they might consult with the King to see if release of the prisoners was appropriate. Darnel and his colleagues were victims of a form of privilege which was made possible by the King’s position above the Law.
This was very vexing for Parliament. The members of Parliament thought that they alone should make the law, and the King should not defeat it. They also resented the King taxing them without their consent: having established the principal with Magna Carta, it was not a privilege they would readily concede.
The question whether the King ruled apart from Law or subject to it was one of the major causes of discontent which aggravated relations between the King and the Parliament and culminated in the English Civil War. The King lost the war and his head, and that specialized form of privilege disappeared from English history. Since the Restoration, British monarchs have accepted that they rule subject to the Law, and cannot set it aside.
It is one of history’s little ironies that the United States of America has preserved some aspects of this kind of privilege. The outgoing US President has power to grant pardons – a power which bears a passing resemblance to the power of the Stuart Kings to dispense with the law in a particular case. And the similarity with the Stuart Kings does not end there. In the wake of September 11 and the US invasion of Afghanistan, President Bush established a prison camp at Guantanamo Bay. The idea was to place detainees beyond the reach of the law, so that Bush alone could determine their fate. From the outset, the world was told that the people held in Guantanamo Bay were the “worst of the worst”; they were “terrorists and killers and people who hate freedom”. And since, in the tunnel vision of George W. Bush, terrorism had suddenly sprung, fully-formed, into existence on September 11, it was necessary to find a new way of dealing with a “new problem”.
As a matter of legal principle, there was no “new problem”. Combatants captured in Afghanistan during the hostilities were either Prisoners of War or they were criminal suspects. Domestic and international laws deal comprehensively with both cases. There is no ground between the two possibilities.
The regime for treatment of Prisoners of War is clear: it is established by the Geneva Convention in relation to Prisoners of War, to which USA is a party. Relevantly, it provides for humane treatment; no interrogation beyond name, rank and serial number; and release at the end of hostilities unless tried for war crimes.
The regime for treatment of criminal suspects is also clear: humane treatment; no obligation to answer questions; no prolonged detention without charge; prima facie entitlement to bail when charged; and (importantly in these circumstances) criminal charges are generally to be dealt with in the country where the offences occurred.
In either case, and in all circumstances, there is an absolute prohibition on the use of torture. This is recognized as a universal norm of international law, and is the subject of the Convention Against Torture to which most countries, including the USA and Afghanistan, are parties.
Unfortunately, there comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which are thought to call for extraordinary responses.
Faced with very clear legal limits, President Bush stepped back to the 17th Century and acted, in substance, as the Stuart kings had. He acted as if he could set aside the law and implement his own conception of right. He did so with help from Department of Justice employees. President Bush marshaled the best and brightest in the Department of Justice to identify the boundaries limiting the treatment of detainees held at Guantanamo Bay. They obliged by suggesting ways in which inmates of Guantanamo Bay could be held, not as prisoners of war, nor as criminal suspects. In consequence, their rights evaporated.
The Department of Justice suggested that torture was a difficult concept to pin down, and that (while the US would never use torture) it would be okay to use stress positions, waterboarding and the uncounted indignities later revealed at Abu Ghraib. The White House prefers to call these methods “coercion”. The rest of the world recognizes these techniques as torture. Changing the name does not change the thing. Doubtless the victims were enchanted by these quibbles of etymology.
President Bush’s authorizing of torture in Guantanamo Bay closely mirrors James I, who on 6 November 1605 personally authorized the torture of John Johnson, aka Guy Fawkes. It was deeply ironic to see Bush stumble back to the 17th Century, especially given the close connection between the excesses of the Stuarts and the foundational impulse of the American colonists. In protest against Charles I and his treatment of Sir Thomas Darnel, the Parliament presented the Petition of Right in 1627. It later formed the core of the US Bill of Rights.
But if George W. Bush saw the irony, he was not deterred by it: the establishment of a prison at Guantanamo Bay was designed specifically to put prisoners beyond the protection of the US Bill of Rights. When that device was defeated in the Supreme Court, Congress passed the Military Commissions Act of 2006. Despite the central role of the ancient writ of habeas corpus in protecting the rule of law, and its honoured place in the US Constitution, the Act denied prisoners at Guantanamo Bay access to habeas corpus. Thus the detainees were specially exempted from the reach of one of the Law’s most revered and powerful protections. That measure was struck down by the US Supreme Court in June 2008.
By then, the population of Guantanamo Bay had fallen dramatically. More than half of the original detainees turned out not to be killers or terrorists or the worst of the worst – just the unluckiest of the unlucky. After a year or two or three of coercion and misery, they have been repatriated, without apology, without compensation and without even an explanation. It is not clear whether the US Government will reclaim the bounty they paid to the Northern Alliance for these prisoners.
The first military commission of Guantanamo Bay began in July 2008, six years after the privileged were rounded up and thrown – trussed, gagged and hooded – into the legal black hole called Guantanamo Bay. The first defendant is Selim Hamdan. He probably does not know how privileged he is, etymologically, because he is the victim of the special law-breaking efforts of the US President; and more positively, in that he is not one of the suspects who have been beaten to death by American interrogators in the course of their coercive, non-torturing techniques.
There is something deeply ignoble about it all. The US is a “nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Its Constitution carries the scars of the Stuart rule:

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. .… No bill of attainder or ex post facto law shall be passed.”

The US pioneered the idea of fair trials of war criminals. They established the model for the Nuremberg trials. The Nuremberg Charter was issued on 8 August 1945. It set out the laws and procedures by which the trials would be conducted. It stands in marked contrast to the Manual for the Military Commissions at Guantanamo, issued on 18 January 2007. The Nuremberg Charter provided for forensically fair trials; the Guantanamo Commission does not. The defendants at the first Nuremberg Trial were the most senior surviving members of the Nazi regime. Selim Hamdan is said to have been Osama bin Laden’s driver.
Nuremberg might not have such an exalted place in the history of international justice if the only defendant had been Hitler’s valet.
* * * * *
In its modern sense, privilege is always an advantage for the holder. Privilege will be variously envied, resented, feared or (occasionally) admired, depending on the way their privilege was gained and the way it is exercised.
The greatest reason for resentment and envy is that the person does not deserve the privilege they enjoy. The snotty, arrogant private school boy who treats as his by right what comes to him by chance; the politician who by his bearing assumes a right to rule because of his birth or social position. These are stereotypes we love to hate.
But it is all relative. A person who is homeless, without any fault of her own will see the tenant of a modest flat as privileged; an Aborigine must surely see most white Australians as privileged; to the disabled, most of us are privileged. To those born in many parts of the Third World, we in Australia are all privileged.
At its heart, resentment of privilege springs from a deep-seated sense of justice and injustice. The wretched fate of some people, or by contrast the great good fortune of others, strikes us as unjust. Well, it strikes the unlucky as unjust; and if the privileged get what they have without merit or special effort, the injustice seems all the sharper.
The relationship has two directions: the view from below, and the view from above. Those with privilege view the matter from their own standpoint; those without it view it from theirs. But the two views are not symmetrical. Privilege is generally noticed by those who do not have it; it is not always noticed by those who enjoy it. Hamlet famously complained about the slings and arrows of outrageous fortune and the insolence of office, he railed against the proud man’s contumely. He was less forthcoming about the fate of the grave-diggers, or the beggars outside the gates of Elsinore. They might have wondered what he was complaining about. True, his friends were untrue and his family life was uneven, but he lived in a nice castle, he had Chamberlains and courtiers to help him, and he never wanted for the basics. From the perspective of the grave-diggers and the beggars, Hamlet had it all.
For the privileged to see the truth of their own position, they must first notice the existence of the less privileged: not only that they are less privileged, but that they are beings of the same order for whom the sight of privilege might be a source of torment.
Ambivalence about human rights is one of the great mysteries of life in Australia. We do, by and large, believe that human rights matter, and we are broadly egalitarian in our disposition. Nevertheless, we have managed in our short history to ignore some outrageous denials of human rights. The explanation, I think, lies in that sort of blindness which afflicts the privileged.
Human rights matter, we all agree. By which we mean: “My human rights matter; the human rights of my family and friends and neighbours matter. After that ….” It is hard to resist the conclusion that we care little for the human rights of people we fear or hate. From this compromised starting point, the argument generally says that we do not need any measures to protect human rights, because human rights are safe in Australia. And of course, that is true at least for me, my friends, my family and my neighbours.
What then of the human rights of aborigines, dispossessed of the land they occupied for millennia? They were separated from the land, although their connection to it is as the connection of child to parent. They sank, many of them, into abject misery on the fringes of white society. We took their children from them because suddenly, after 30,000 years, good parenting was beyond them, we thought. Separation of child and parent – first metaphorical and then literal. The result: untold human misery. Our response: indifference, resignation, and a bit of tokenism.
It was not until 1992 that an Australian court recognised that the original inhabitants of this continent had owned it when white settlers arrived. It took Australia 204 years to recognize that, as a matter of law, this land was occupied by people whose connection to it was analogous to, but much more profound and personal than, ownership. Until then, it was as if ownership was meaningless, unless signified by inky scratchings on parchment. The decision of the High Court in Mabo was greeted with howls of derision and angry comments about activist judges.
It was not until 2007 that an Australian court recognized at last that Aboriginal children had been taken unlawfully from their parents, and that, in taking them, the Governments must have know that they were inflicting harm. Bruce Trevorrow was born to Aboriginal parents at One Mile Camp, Meningie, on the Coorong in South Australia. When he was 13 months old he got gastroenteritis. He was admitted to the Adelaide Children’s Hospital. The records show that his gastroenteritis cleared up seven days later, and seven days after that he was given away to a white family. They had seen an advertisement in the newspaper offering Aboriginal babies for fostering. They wanted a second daughter. They went to the hospital on a Sunday and saw a cute, curly-headed little girl and said they would like to take her home. She was given to them. When they got her home and changed her nappy they discovered she was a boy. That was the transaction by which Bruce was given away. When Bruce’s mother wrote to the Department asking how he was doing and when he was coming home, they replied (falsely) that he was doing well but that the doctors had said he was not well enough to come home yet. Thereafter, they actively prevented his mother from finding out where he was. He did not see her again until he was 10 years old. By that time, his father had already died. Bruce’s entire life was marked by insecurity, anxiety, depression, alcoholism and blighted by a profound sense that he did not belong anywhere. After a 10 year legal battle, he won a verdict on the 1st August, 2007. He died on 20 June 2008, aged 51.
The decision in Trevorrow did not provoke the hostile response which followed Mabo. It sparked a predictable backlash from parts of the commentariat, still dedicated to the idea that Aboriginal children were not taken; it was welcomed among parts of the public for its historic significance; it played its part in the impetus for a national apology which was given in Parliament on 13 February 2008.
But the findings in Bruce Trevorrow’s case caused little concern in the public at large. How can this be? If white babies were taken in the same manner – taken from parents who were willing and able to look after them, given to other families who were thought to offer socio-economic advantages, we would be outraged. Imagine advertising white babies for fostering – come and collect one, no paperwork, no questions asked. We would not tolerate it. Tabloid journalists would be outraged, Commissions of Inquiry would be called; Governments would fall. But it was only Aboriginal kids, and it did not matter as much as if it had happened to kids the average Australian would empathise with as a fellow being whose rights and interests, whose loves and fears, were as real as his own. The unstated vanity that ‘this could never happen to me or mine’ confers the privilege of selective blindness on Australia’s relaxed and comfortable majority.
And there is the recent indignity of refugees – men, women and children – being incarcerated indefinitely in desert prisons, without regard for the fact that they have committed no offence. They present no risk to the community; but we jailed them, and we held them for as long as it took to work out that they are refugees. We made them liable for the costs of their own detention. We charged them separately for the privilege of solitary confinement. We added GST to the detention bill. And if they were not refugees, we continued to hold them until we could remove them from Australia. All of this continued until 29 July 2008 when government policy on these matters changed.
If we could not remove them from Australia, we could jail them forever. In 2004, the Al-Kateb case was decided by the High Court. He was a boat person. He was detained while his claim for protection was considered. It was rejected. Woomera was too harsh to bear, so he chose not to prolong his agony by appealing. Instead, he asked to be removed from Australia. But he could not be removed – he is stateless. The Howard Government argued that he could be held in detention for the rest of his life. The High Court, by a majority of 4 to 3, agreed that that was what the Migration Act says, and that it was constitutionally valid with that meaning.
The Al-Kateb case should have provoked banner headlines across the country. It should have sparked outrage in every corner of the land. Instead, it was largely ignored. Even now, four years later, most Australians have never heard of the case.
How can these things be? How can it be, in an egalitarian society, that the injustice of these things creates scarcely a ripple? How is it that it is not even noticed by newspapers and columnists? The answer I think is found at the threshold: most Australians do not recognize the original inhabitants, the stolen generations, the faceless asylum seekers, as people: at least, not in the same sense that we are people. Their humanity is of a different order. Their disadvantage is invisible to us, although our privilege is painfully visible to them.
This is the explanation Rai Gaita points to in an essay on the Mabo case. He wrote “We love, but they ‘love’; we grieve, but they ‘grieve’; and of course we may be dispossessed, but they are ‘dispossessed’. That is why, as Justice Brennan said, racists are able ‘utterly to disregard’ the sufferings of their victims. If they are to see the evil they do, they must first find it intelligible that their victims had inner lives of the kind which enable the wrongs they suffer to go deep”.
The privileged are often blind in just that way, and this kind of blindness may have a survival advantage. To see daily the disadvantage of those, in relation to whom we are so privileged, must be nearly unbearable.
To recognize the equal humanity of every broken spirit of the stolen generations; to see your own child in the face of every child fretting and grieving in a detention centre, would be a terrible burden. This blindness protects the privileged.
* * * * *
The war on terror has exposed another facet of our complex relationship with human rights. The war on terror made it necessary, we were told, to introduce special measures to make us safer. ASIO now has power to hold a person incommunicado for a week, and force them to answer questions. If they do not answer satisfactorily they face five years’ jail. They must not tell anyone where they were during their disappearance, or they face five years’ jail. No journalist can write about their experience; if they do they face five years’ jail. All of this can be done to a person not suspected of any offence.
A person can be jailed for 14 days on a preventative detention order if an official is satisfied that the person might otherwise commit a terrorist offence. The order is made in a secret hearing, about which the subject of the order knows nothing. The order is made if the official is satisfied of the facts on the balance of probabilities. The person who is to be jailed is only told of all this when they are arrested, and even then they are not allowed to know the evidence which was used against them.
In certain classes of legal proceedings, the Attorney-General has power to issue a certificate, the effect of which is that the other party to the proceeding is not allowed to see the documents the Government relies on in the case, is not allowed to hear evidence the Government relies on, is not allowed to hear the submissions the Government relies on. Their lawyers are not allowed to access the documents, and they are not allowed to hear the government’s evidence or submissions.
Basic rights are trashed and the hearing is a travesty. When the laws were passed which make these things possible we were told that they were necessary to help protect national security. While it is a fair bet that fridge magnets were not going to be enough, there was no debate about whether it was reasonable or necessary, or even effective, to destroy the democratic freedoms we were ostensibly fighting to protect. There was not much of a protest. After all, everyone agrees that national security is important. The commentators pointed out the self-evident fact that, at times, it is necessary to sacrifice our rights to some extent in order to protect the greater good.
But apart from blindness, there is a kind of mean calculation which happens somewhere deep in the primitive corners of the mind where language and consciousness are cannot reach. The calculation below the surface is this: my safety has improved, their rights are reduced. I win.
Most Australians will not find their rights affected by these provisions. If you are not a Muslim, and do not look like you might be a Muslim, you will not likely be troubled by these provisions at all. Unless someone makes a mistake. You will not be able to discover the mistake that was made. You will be as shocked and confused as those hundreds released from Guantanamo Bay must have been during their years of humiliating, damaging captivity.
It is easy to test the calculation. If we are serious about combating terrorism, if we really want to stop it before it happens, we could install closed circuit TV cameras in every room of every house across the land; we could monitor them centrally and save the whole lot to an enormous database. Plotting any crime will become a very risky business. Sure, we lose our privacy but as they say “if you have nothing to hide, you have nothing to fear”.
Will this modest proposal be embraced? Only by lunatics, I think.
* * * * *
Protecting our basic rights against populism is one of the most basic challenges in a democratic system. In a democracy, the majority for the time being enjoys a privilege which they jealously guard. When arguments are put forward for basic rights protection, the majority answer that rights are sufficiently protected, or that a Bill of Rights is anti-democratic because it will transfer power from the democratically elected representatives to the unelected, undemocratic judges.
To make the debate intelligible, it is useful to identify what we are talking about. First, those who advocate a Bill of Rights are not talking about a US style Bill of Rights. Some people prefer to speak of a Charter of Rights in order to make the distinction plain. Nevertheless, there is no magic in the name: a Charter of Rights and a Bill of Rights are the same thing; the US Bill of Rights is an early example, but it is not one to be emulated. The US Bill of Rights is an 18th Century document with almost nothing in common with modern bills of rights. The rights protected by a modern Bill of Rights are – broadly speaking – the sort of rights addressed in the Universal Declaration of Human Rights which most nations, including Australia, signed in 1948.
It would be difficult to find any serious disagreement about the nature of those rights – the right to life, freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. The disagreement arises when the question of protecting those rights is in issue. This is a strange thing, given that protection of human rights was the ideal of the Universal Declaration. Its Preamble includes the words:

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, .…

Despite the terms of the Universal Declaration, and regardless that the rights it spells out are basic and self-evident, they are not protected in our democratic system.
There is not much room for complacency. Within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election. This is true, but it is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans. At times, majoritarian rule begins to look like mob-rule.
Generally, Parliament’s powers are defined by reference to subject matter. Within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, regardless how harsh the conditions, and make him liable for the daily cost of his own detention. [Note: this provision has subsequently been repealed]
The question then is this. Should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers? If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar.
But, the opponents complain, it is undemocratic: it hands all the power to the judges. Whether that is true depends on the form of the Bill of Rights. Whether it is a relevant objection, even if true, depends on a proper appreciation of what a Court’s role is.
Broadly speaking, a modern Bill of Rights can be a weak model or a strong one; and it can be an ordinary statute or constitutionally entrenched. The arguments for and against a Bill of Rights change profoundly according to the model under discussion. Unfortunately, the conservative commentators never identify exactly what it is they are condemning.
Statutory Bills of Rights can be disregarded or repealed if the Parliament so wishes. A constitutional Bill of Rights, on the other hand, cannot be repealed or altered except by referendum. A constitution (in theory) expresses the will of the people directly, and binds the Parliament. A statute, by contrast, expresses the will of the people indirectly through their elected representatives and can be made, changed and repealed by the Parliament.
A strong model Charter creates rights of action: if a person’s rights are breached, they may be able to sue for damages. A strong model may also forbid Parliament to do certain things and thereby directly limit the power of the Parliament.
A weak model simply requires Parliament to take protected rights into account when passing legislation. If they wish to disregard those rights, they must say so plainly. This may involve a political cost if Parliament decides to disregard rights which it has previously resolved to respect. In addition, a weak model Charter guides Judges in the way they should interpret legislation, so as to preserve rights rather than defeat them.
The ACT and Victoria both have statutory, weak models of rights protection . So long as the public and the conservative commentators find it alarming to protect rights, a weak statutory model is a good solution.
Plainly, a weak statutory Charter of Rights does not transfer power from Parliament to unelected judges. At its highest, it requires Parliament to address directly the fact that they intend to diminish basic rights if that is what they intend. It puts a political price on the erosion of rights, but it does not prevent it.
A stronger Charter of Rights may give power to judges. Depending on its form, a Charter of Rights might limit the power of Parliament to make laws which unreasonably erode the rights which Parliament has already recognised as basic to the human condition in modern society. But to raise this as an objection to protecting rights is odd: Parliament’s powers are already limited. In Australia, the limits are found in the Constitution. They are generally set by reference to subject matter. It is the role of the Courts to interpret the laws passed by the Parliament, and to apply them if they are valid. In many cases, especially in the High Court, the Court is asked to determine whether or not a law passed by the democratically elected Parliament is valid or not. They do so by interpreting the relevant Act and the Constitution to see whether the Parliament has exceeded its powers. That is the Courts’ role. Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A modern Charter of Rights introduces, or records, a set of basic values which must be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which the Parliament has agreed.
Because this is so, it is wrong to say that a Charter of Rights abdicates democratic power in favour of unelected judges. A Charter of Rights is a democratically created document, like other statutes. To complain that Courts give effect to a Charter of Rights is to misunderstand the role of Courts. Enforcing it is not undemocratic at all.
Protecting basic human rights by adopting a Charter recognises that the privilege of the democratic majority cannot be unbounded, and that ‘if man is not to be compelled to have recourse .… to rebellion against tyranny and oppression, .… human rights should be protected by the rule of law’ .
It is a sad puzzle in Australia today that some of the most powerful and privileged people in the country oppose the adoption of a Bill of Rights. On 30 July 2008, Cardinal Pell was reported as having urged the Prime Minister to give no further consideration to the adoption of a Charter of Rights. Presumably a perosn in holy orders believes in the concept of human rights: how odd then that he does not think those rights should be protected by law against unreasnable erosion. As part of his coordinated plan to prevent rights protection in Australia, Cardinal Pell gave a speech at the Brisbane Institute on 14 February 2008, in which he spoke against the idea of a Charter of Rights. He ran the usual alarmist arguments, but unfortunately he did not identify what sort of Charter of Rights he was opposed to. Perhaps like others among the privileged, he thinks rights are safe in Australia, and is blind to those whose rights are not as secure as his own.
* * * * *
Privilege can attach not only to people but to abstractions. In law, certain communications are privileged.
For example, confidential communications between lawyer and client are privileged. Neither the lawyer nor the client can be compelled to disclose the contents of the communication. Neither can be forced to hand over a document recording the communication. The reason for the privilege is based on public interest: the public interest is, on balance, advanced if people are able to consult lawyers candidly.
Documents marked ‘Commercial-in-confidence’ attract a weaker kind of protection. It is not as robust as the protection offered by legal professional privilege, but the talismanic words confer a kind of privilege which frustrates lay people and journalists as they struggle to find out what is going on beneath the surface in increasingly powerful and privileged corporations.
Professions are themselves little pockets of privilege. It is the hallmark of a profession that only members of the profession may engage in that profession’s work. They guard the monopoly jealously. In truth, the work of all professions includes a great deal which cannot safely be entrusted to a person not appropriately skilled. If I need brain surgery, I will go to a brain surgeon regardless of the monopoly which medical practitioners enjoy, but because I want the job done properly. Where a particular activity of a profession is capable of being safely performed by a person who has not had the exhaustive training usually associated with professional qualification, retaining that part of the monopoly is a privilege which will sooner or later be seen as unsupportable.
Years ago, someone advanced the heresy that conveyancing was an activity which could usually be performed without the benefit of a law degree. The legal profession fought hard to prevent the heresy from gaining acceptance. They lost. Many domestic conveyances are now conducted by private conveyancing companies. The truth was that, in many cases, the privilege of the conveyancing monopoly was an accident of history and no longer reflected the skill and knowledge which mark out the proper territory of a profession.
The legal profession has another kind of privilege. Lawyers appearing in courts cannot be sued if they perform negligently. This ‘barrister’s immunity’ is a distinct kind of privilege which is greatly resented by members of the public. This form of privilege is also based on public policy considerations, but those considerations are not obvious to most people. It is resented in part because it is seen as standing in marked contrast to other professions whose members can be sued if they do their job badly. Doctors especially resent it, because their lives are often made miserable by lawsuits. But the barrister’s immunity is not quite the exception it seems. It is a long-standing principle that no-one can be sued for what they do or say in a Court. If a case is lost because the witness lied, the losing party has no right of action against the lying witness. If the case is lost because the Judge was careless or the jury were lazy or incompetent, the losing party cannot sue the judge or the jury. The public policy reason for this is to ensure that everyone in court is free to say what they will. Consistent with this, the barrister cannot be sued for what he or she says in court. It is a privilege, but one which has a principled foundation: it does not exist simply for the benefit of careless barristers.
A different kind of privilege came into focus recently during the public debate about Bill Henson’s photographs. The photographs were the subject of an attack by Hetty Johnson. She alleged that one of the photographs (the only one she actually saw) was pornographic, and should be removed from public show. Interestingly, Hetty Johnson admitted publicly that she had never heard of Bill Henson, and did not know his work. Her views about his work did not change in the slightest degree when she learned of his status as one of Australia’s most widely famous living artists, celebrated and collected by the world’s greatest galleries. They might not even have changed if she had seen more than one example of his work. That’s the marvellous thing about obsessive views: they are so durable.
At the time Hetty Johnson entered the fray, the New South Wales Government was taking some heat as a result of one of its former members having been convicted of paedophilia and drug offences. The Henson show was a welcome distraction. Events escalated rapidly, and police seized 20 of the images from the walls of an up-market Sydney art gallery.
When the fog of moral panic cleared enough to make it safe to walk outdoors, the police hinted that Henson might be charged with child pornography offences. This raised fascinating questions not only about whether Henson’s work was anywhere near the territory of child pornography, but also whether, as art, his work was entitled to a special defence. Of all the issues arising out of the Henson matter, this was the most interesting.
The relevant provisions of the New South Wales’ Crimes Act make it an offence to create, disseminate or possess child pornography. Child pornography is defined somewhat more widely than might be supposed. It means material that depicts or describes, in a manner that would cause offence to reasonable persons, a person apparently under the age of 16 years engaged in sexual activity, or in a sexual context, or as the victim of torture, cruelty or physical abuse (whether or not in a sexual context) . It is a defence to a charge of child pornography that, having regard to the circumstances in which the material concerned was produced or used, the Defendant was acting for a genuine “child protection, scientific, medical, legal, artistic or other public benefit purpose and the Defendant’s conduct was reasonable for that purpose”. Thus art is privileged, along with medicine, science etc. Victorian law has similar provisions which likewise privilege art, medicine and science.
Art, or genuine artistic purpose, is privileged in a number of other settings. Under the New South Wales’ Anti-Discrimination Act, it is an offence for a person, “by a public act, to incite hatred or contempt” for others on the grounds of race, transexuality or HIV/AIDS status. However it is a defence if what was done was done “reasonably and in good faith or academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter” .
The Classification (Publications, Films and Computer Games) Enforcement Act 1995 of New South Wales provides, as its name suggests, for the classification of various forms of work. It also regulates the organizations that may be involved in possession or distribution of those works. An organization may be exempted from the operation of the Act having regard, among other things, to “the extent to which the organization carries on activities of a medical, scientific, educational, cultural or artistic nature” .
Victoria has similar provisions in its Crimes Act and Equal Opportunity Act. In addition, the Victorian Classification (Publications, Films and Computer Games) Enforcement Act defines “objectionable publication” as a publication that (among other things) “lacks serious literary, artistic, political, educational or scientific value and describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that a reasonable adult would generally regard as unsuitable for minors” .
Section 4 of the Victorian Racial and Religious Tolerance Act identifies the objects of the Act as including: “… to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalize any person or class of persons” .
It is a defence to prosecutions under the Act if the person charged establishes that their conduct was engaged in reasonably and in good faith in the performance, exhibition etc. of “an artistic work” or in the course of any statement or discussion engaged in for “any genuine academic, artistic, religious or scientific purpose”
The public debate about Bill Henson’s work focused on the question “Is it art or is it pornography?”. The self-evident result was that it is art, and is not pornography.
But it was not the right question, and Bill Henson was not the right target. Work can fall within the definition of child pornography but be immune from prosecution because it is also art, because art is privileged. The interesting question at the heart of the Henson debate was why art should be privileged in this way, and in other sensitive areas such as discrimination and vilification.
Put more bluntly, if words or images are pornographic, or amount to racial or religious vilification or unlawful discrimination, why should it be defensible if done genuinely in the name of art?
The answer can be inferred from the other privileged areas of activity in the same context. Something which is otherwise within the meaning of child pornography etc. will not involve an offence if the purpose of making it or possessing it is “child protection, scientific, medical, legal, artistic or other public benefit purpose”.
Conduct which would otherwise be unlawful vilification is lawful if done for “academic, artistic, scientific or research purposes or for other purposes in the public interest”.
An organization may be exempted from the classification laws if its activities are “medical, scientific, educational, cultural or artistic”.
By inference, the privilege is the result of the public benefit implicit in the domains of activity identified. While I willingly embrace the idea that art brings with it a public benefit, it is a proposition which does not win universal acclaim. Not everyone agrees that art matters. But it does, and for several reasons.
First, in profoundly important ways, every work of art carries part of our shared culture. It has a value which transcends money. The destruction of the library at Byzantium in 1204 and the looting of the national museum of Baghdad in 2004 represent losses which no-one has tried to measure in economic terms, because the calculation would miss the point completely.
Few people would accept that a person who buys an iconic painting could withdraw it forever from public view. No-one would accept that the purchaser of a great work of art was entitled to destroy it. We all acknowledge that a work of art is more than an article of commerce.
There is another reason why art matters, and deserves to be privileged. Victor Hugo once said: “Music expresses that which cannot be put into words and that which cannot remain silent.” So it is with all the arts.
Human language has a vocabulary adapted to accommodate our daily needs and functions: the vocabulary of any human language maps approximately to the needs and activities of our mundane lives. But few would deny that there is another dimension of human existence which transcends the mundane: call it the soul, the spirit, that part of the human frame which sees the shimmer of the numinous.
In the domain of the human spirit, other vocabularies are needed. Painting, music, poetry and sculpture are all different languages, and each gives access to areas of human experience which are not available to other sorts of language. This is why works of art are considered less meritorious – or at least, less interesting – as they become more literal and narrative. If an idea is readily expressed in words, why bother expressing it in paint or music instead? By contrast, some ideas can only be expressed in paint or music: the vocabulary of paint and music share little with the vocabulary of spoken language. I once heard someone ask an abstract expressionist to say what one of his paintings meant. He said “No, I can’t tell you, but I will try to hum it.”
Next, art is valuable, and deserves to be privileged, because it plays an important role in exposing truths we might prefer not to see, or which politicians might prefer us not to see. James Thurber was a popular writer in America in the 1950s. While McCarthyism was doing its doleful worst, Thurber wrote seemingly innocent stories in the style of Aesop’s fables. Thurber’s Fables For Our Time and Further Fables For Our Time were written with animals as their protagonists. Properly understood, the fables argue for free speech and honesty, and argue against deception and oppression. Thurber was deeply subversive but almost impossible to censor. After all, who could justify suppressing an innocent story about lemmings running off a cliff, or a mouse which ate too much?
On 5 February 2003, Colin Powell announced America’s intention to invade Iraq. The announcement was made outside the entrance to the Security Council of the United Nations. He stood in front of a wall which bears a reproduction of Picasso’s Guernica – one of the best-known examples of the art of dissent. It bluntly portrays the horrors of war. However for Colin Powell’s announcement Guernica had been modestly covered over with a vast blue sheet, so that the tens of millions who saw, on television, the world’s only super-power declare war on Iraq, would not be reminded of the horrors about to be unleashed. Only a few recognised that, in that simple gesture, a country born of dissent stifled an inconvenient mark of dissent. A commentator wrote in the New York Times: “Mr Powell can’t very well seduce the world into bombing Iraq surrounded on camera by shrieking and mutilated women, men, children, bulls and horses.”
It is true that Picasso was air-brushed out of a moment in history, but his voice was not stilled. His message remains visible for all to see. In retrospect, perhaps it would have been better if Guernica had not been covered up that day; if the privilege art deserves had been respected: perhaps we would have looked for better assurances from our politicians that the storm of misery about to be unleashed was justified.
The power of the hidden, but recognised message, is clear in at least two major symphonic works which come to mind. Shostakovich’s 5th Symphony – ostensibly a work of apology to the State – ends with a long slow movement which was widely understood by its audience as an extended, haunting reference to the wastelands of the Siberian Gulag.
Another interesting example, not well enough known, is the choral movement of Beethoven’s 9th Symphony. The text is drawn from Schiller’s poem “An die Freude” – To Joy. Leonard Bernstein has commented that there is a “funny piece of 19th-century musicology” to the effect that Schiller originally set the title of the poem as “An die Freiheit” – To Freedom. Certainly, an ode to Freedom would have been dangerous and radical in Vienna in 1815. The French Revolution was still a matter of living memory, and the titled heads of Europe had not yet fully embraced the ideals of Liberté, Egalité, and Fraternité. Teachers and writers suspected of liberal views were blacklisted. To speak of freedom was dangerously unacceptable. Whilst an Ode to Joy would pass the censors, an Ode to Freedom would certainly not.
Beethoven’s liberal thinking emphatically supported the original spirit of the French Revolution, and his use of Schiller’s text – widely recognised for what it truly meant – was an act of defiance characteristic of Beethoven.
Beethoven’s original intention for the 9th symphony was carried into execution on 25 December 1989 when Bernstein conducted a performance of the 9th Symphony to celebrate the fall of the Berlin Wall. In that performance, Freiheit not Freude was sung. Beethoven’s 9th was played over loudspeakers by students in Tiananmen Square, during their protest against tyranny.
Not surprisingly, Beethoven was contemptuous of privilege. It is well-known that in 1803 he originally dedicated the 3rd symphony to Napoleon, but when he heard that Napoleon had declared himself Emperor, he destroyed the dedication shouting “The man will become a tyrant and will trample all human rights under foot. He is no more than an ordinary man!”
He had been on friendly terms with Prince Lichnowsky for some time and visited his castle in Silesia in 1806. There were a number of guests at the castle, including officers in Napoleon’s army who had been billeted there against the Prince’s wishes. Beethoven was furious – his anger at Napoleon had not abated – and he refused their request to play for them. The Prince, trying to be an obliging host, urged him to play but he would not agree. He left the castle without telling the Prince, and wrote to him: “Prince! what you are you owe to chance and birth. What I am, I am through myself. There has been, and will yet be thousands of princes, but there is only one Beethoven.” This disdain for the privileges of birth and position is rare even now, and was radical in 1806.
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Politicians are also privileged. Their words spoken in parliament cannot be used against them in legal proceedings of any sort. That is why they can vilify people or defame them in Parliament without the risk of being sued for defamation. But politicians are privileged in other, less obvious, ways. Even though they are entrusted with what is arguably the most significant job in the country, they are not liable if they lie to the public whose interests they are supposed to serve. The usual justification for this is that the way to discipline politicians whose standards fall below what is acceptable is to vote them out. The number of dismal performers in political office suggest that the acceptable standard must be incredibly low. Elections tend to be fought on a narrow range of issues, and to be decided on an even narrower range.
Most members of the public see honesty as a core value in our society. In personal dealings, dishonesty on matters of any significance is rightly regarded as an unacceptable breach of standards. The Trade Practices Act was introduced by Lionel Murphy in 1974. Almost as an afterthought, Murphy included section 52. It is probably the most potent sentence in the statute books. It says: “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. In only 23 words – a modest number by legislative standards – section 52 introduced a new norm of corporate behaviour. It changed the landscape of commercial dealings, and quickly became the commonest cause of action in the Federal Court.
Most people believe politicians lie. Some politicians lie more than others. It is not a trivial problem: politicians fill a vital role in our society. Why should the behaviour of politicians fall short of the standards Parliament has set for business, and which we all set for ourselves and each other?
There are many different ways of lying. Notoriously, telling only part of the truth is a way of misleading the unwary. It is the way generally favoured by politicians, because it is less easily exposed than a direct falsehood. In Parliament, politicians are not allowed to mislead the house. They should not be allowed to mislead the public – they are the servants of the public, paid from the public purse, and representing the public interest.
Courts have a great deal of experience in deciding whether a person has engaged in misleading or deceptive conduct. If a person states a fact which is false, that is misleading conduct. The difficulty arises when a person offers opinions or makes statements about the future. Opinions and predictions may turn out to be wrong, but that does not of itself mean that the speaker engaged in misleading conduct. But if a person expresses an opinion which they do not in fact hold, that is misleading conduct. If a person offers a prediction of the future for which they have no reasonable foundation, that is misleading conduct.
Every time politicians mislead us, they betray the public in a fundamentally important way.
But honesty in politicians is important for another reason. Politicians’ vision for the future generally does not extend past the next election. Anything over that magic horizon is generally put aside for another time. It may turn out to be someone else’s problem. If politicians could be punished for misleading and deceptive conduct, they would have to confront long-term problems much sooner.
Global warming is a recent, although possibly a contentious, example. The science concerning global warming has been tolerably clear at least since the Independent Panel on Climate Change Report of 1995. Like the science concerning the link between smoking and various diseases, the science concerning climate change has become increasingly clear. Since 1995, the overwhelming preponderance of scientific opinion has supported the view that global warming is a real phenomenon; that it is caused largely by human activity; and that if left unchecked it will lead to catastrophic global consequences. Dissenting views tend to come from people acting at the instance of vested interests.
Politicians confronted with the scientific evidence have a few choices: they can say they believe global warming is true and that there is a problem; they can say they do not believe it is true, and that there is not a problem; or they can say that they do not know or do not care. But if the opinion they express is not an opinion they truly hold, then they mislead us. If politicians were forced to express an honest opinion – that is to say, an opinion they honestly hold – rather than one peddled by vested interests or lobbyists, or one which is politically convenient, we may have begun the conversation about global warming a decade ago.
Enforcing honesty in politicians would help extend the policy horizon beyond the next election. There can be no legitimate policy reason why politicians should be allowed to mislead the people they are entrusted to lead. It is a privilege which cannot be justified.
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Australians don’t talk much about the privileged classes these days. The preferred word is ‘elite’. This is as ambiguous as ‘privilege’ once was. Some elites are good – sporting heroes, rock stars, famous actors and so on. Other elites are bad – the regular critics of the previous Government, for example, and people who offer opinions about uncomfortable subjects – the sort of subjects which have occupied most of this essay, for example.
In recent times, Australians have resented this category of elites. It is not immediatley obvious why that should be so. Perhaps it is because the subjects prick our conscience, and disturb our complacent enjoyment of the many good things this country offers. That would explain the choleric, personal attacks which, for the past decade, were directed at anyone who suggested that white settlement of Australia involved episodes of bad conduct and serious injustice, or anyone who doubted the moral worth of jailing innocent children behind razor wire.
Perhaps they were resented because they were inclined to think and willing to speak out. To do so implies a privilege. It implies the privilege of a good education, and the privilege of access to the media. Their voices were heard, which is a valuable privilege in the marketplace of ideas and prejudices. They spoke as if they had answers. That was resented by those who had different answers, or who did not like the questions.
The elites were caricatured as drinking café latte and sipping chardonnay, although why the choice of drink and the manner of drinking it should be a social stain was never explained. A book called The Twilight of the Elites attracted more attention than it was worth. Why the eclipse of intellectual pursuits should be celebrated was not explained. There was some comfort in the fact that another book, more entertaining and better written, called Triumph of the Airheads, was published at around the same time. It obliquely praised the idea that thinking was okay; that the privilege of rational discourse was not necessarily to be despised, especially when compared with the alternative.
The tide may have turned with the election of the Rudd Government. The 2020 Summit suggested a new attitude to ideas and held out the hope that dissenting views might be greeted without rancour. The apology to the stolen generation stood in marked contrast to the attitude of the Howard Government, and it was widely applauded even though it scratched at our conscience.
On 29 July 2008 the Rudd government announced a radical overhaul of the immigration detention system. The announcement came as a profound relief to those who had long argued for such a change. It signals a retreat from a policy which damaged and disfigured our national reputation. I was one among the many who had spoken against indefinite mandatory detention. By publicly voicing the arguments against that policy, I had earned the enmity of the Howard government and the opprobrium of some of my professional colleagues. I had received death threats and abusive emails beyond number, and was disparaged publicly as one of the usual suspects, one of the ‘Howard haters’, one of the chardonnay sipping latte drinking elites, etc. If the mistreatment of innocent people was the new orthodoxy, it was a privilege to be despised for opposing it.
Now the Immigration Minister has announced that it will all change. When I read his speech on, I experienced a strange mix of emotions. Not triumph; no sense of victory; but a mixture of relief and happiness coloured by a profound sense of grief which had been held at bay for years: grief at the sight of a wretched policy causing damage to thousands of damaged, frightened people; grief at the obvious popularity of that policy; grief at the thought that my country could behave this way. Beyond all this, I understood at last the real privilege of having the freedom to dissent, and the support of family and friends to withstand the forces which made dissent painful but necessary.
My grandfather enjoyed wealth and social position on a scale I will never have: that was his privilege. My grandfather did not need to oppose any government policy; I chose to, and that has been my privilege. His privilege was comfortable; mine has not been. But if I had a choice of privilege, I would choose mine.