Group Rights and Freedom of Speech
By Kevin Andrews - Australian Polity - Volume 2 (Number 3)
If any good comes from the Bolt Case, apart from the repeal of the law under which he was prosecuted, it is to reveal what an unmitigated disaster a bill of rights would be for Australians.
What we have witnessed in this case, and in others such as the so-called Catch the Fire Case in Victoria, is the inevitable consequence of allowing unelected judges to determine legal sanctions based on their subjective determination of vague and contested notions.
One of the assurances repeatedly given by the advocates of a bill of rights was that it would not result in the judiciary displacing the Parliament on a range of contentious social and political issues. Instead, enlightened judges would ensure that any legislative or regulatory program was consistent with human rights.
This ignored the fact that often vague and abstract “rights” would be given meaning by the judiciary, regardless of competing considerations. As Professor James Allan wrote, “handing the last word to the judges only looks desirable when the argument is pitched at a high level of moral abstraction that obfuscates the ongoing disagreement down in the quagmire of details and ignores the fact that none of us has a pipeline to God.”
His warning that judges would deliver “Alice in Wonderland” interpretations of statutes is evident in the Bolt Case. Consider what the judge decided.
As many commentators have highlighted, the judge took it as his task to identify the values the legislation was intended to promote, and then determine whether these values had been breached. This goes beyond the ordinary task of statutory interpretation where the meaning of the words are unclear. It involves value judgements about abstract notions.
The problem is compounded by the fact that the judge would appear to subscribe to one version of the issues at the heart of the case, namely multiculturalism and cultural identity. In his judgement, he cites, approvingly, from the Catch the Fire Case: “In the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said.”
The point here is not the legal question of whether the judges in these cases were correct, as a matter of law, but a political one. An Appeal Court overturned the Tribunal finding of religious vilification in the Catch the Fire Case. This type of legislation is dangerous because it enables judges to reach beyond appropriate judicial boundaries to conclusively determine matters of community discussion and public debate. As Lord Devlin once said of judges, they “have been craftsmen rather than creators. They have needed the stuff of morals to be supplied to them so that out of it they could fashion law; when they had to make their own stuff their work is inferior.”
The fact that the judge indicated that the test to be applied was related to the member of the complainant group most likely to be offended, illustrates the issue. Citing (then) Justice Finkelstein—the man now heading the Government’s media inquiry—Justice Bromberg stated: “logic demands that if one is dealing with a diverse group then . . . it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled.” (emphasis added).
These cases also highlight the dangers that flow from the assertion of group rights. This is where the intersection with a bill of rights is dangerous. The idea of toleration, famously espoused by John Locke in his 1689 Letter concerning Toleration, is being turned on its head.
In it, Locke sought to distinguish the business of civil government from that of religion. Written at a time when controversy surrounded the idea that Catholics should be able to practice their religion in Protestant England, or Jews or Muslims enjoy religious freedom in a Christian nation, Locke argued that the State and the Church had separate functions. He sought to find a way that people of different religious beliefs could live together.
As Jonathan Sacks has written, toleration “aims not so much at truth but at peace. It is a political necessity not a religious imperative, and it arises when people have lived through the alternative: the war of all against all.” Hence the political separation of faith and power; of Church and State: “No person shall be compelled to support any religious worship, but all persons shall be free to profess their religious opinions.”
Today the issue is not only religion. It extends to cultural identity and multiculturalism. If the new philosopher-judges subscribe to one view of these matters, they are little different to the theologian-judges of the past.
This is occurring at a time when the political notion that the law should not intrude into areas of private behavior has been transformed into the moral assertion that a person now has the ‘right’ to do anything not precluded by law.
The political judgment about the boundaries of the law is now translated into a moral judgment about rights. What one was ‘permitted’ to do now becomes what one has the ‘right’ to do. And having asserted a ‘right’, many insist that it should be protected by the law! Hence Locke’s political toleration has been combined with the new moral relativism. As Sacks cautions, “When political liberalism is combined with moral relativism it reconnects morality and politics, the very thing liberalism was supposed to avoid.”
A moral judgment that liberalism allowed a person to express in the realm of faith and religion, or today culture and identity—for example about religious belief, including the alleged beliefs, customs or practices of other religions— is now swept into the political realm. In morally relative politics, a ‘right’ to do something must be protected as a new human right. Not only is the activity now a ‘right’, but the persons involved are right (or at least as right as anyone else). To say otherwise is intolerant. Such intolerance is discriminatory and should be punished. How the wheel has turned in three centuries!
One of the great achievements of the political liberalism of the seventeenth and eighteenth centuries was the idea that the individual is the foundation of the polity. The law treated individuals as its basis. This notion was foundational to liberal democracy. Hence in the spirit of this development, the 1776 Declaration of Independence boldly asserted that “all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to insure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
Under this formulation, it is the individual who possesses political rights and whose consent legitimates government. It was a rejection of the idea that rights subsisted in classes of people, whether determined by birth, hierarchy or membership of a particular group. It is central to the liberal democratic experiment.
Increasingly however, ‘rights’ are now being asserted on behalf of groups. A claim is made for example, that the expression of a moral judgment about the beliefs, statements or actions of another group should be unlawful because it is offensive to members of the group; or that it is likely to cause ridicule or contempt towards a member of that group.
Whereas the laws of defamation protect the individual against libel and slander, it is now claimed that moral judgments or observations about a group should be unlawful and punishable. This is a significant shift.
Of course, Justice Bromberg did not stop here. He found that it is a punishable offence to state that a person with a mixed racial background had a choice about the identity they have adopted.
The main fault, though, lies with the Parliaments that have created vague laws from abstract principles about which judges can be tempted to conclusively determine public morality on issues like speech and thought in a “multicultural society.”
These laws should be repealed before we head any further down this dangerous path.
