Hard cases make bad laws. Bad judges make them worse

Another day, another disastrous and anti-democratic decision from the High Court. The Court has already disqualified a large proportion (perhaps a majority) of Australians from standing for Parliament. It has now excluded a huge group from any participation in our democracy, beyond the bare right to vote.

The case in question concerned a public servant, employed in the Immigration Department, who criticised the department under a pseudonym (which proved inadequate to conceal her identity). This was obviously problematic: anyone who directly criticises the policies they are paid to implement creates concern about their ability to do their job properly.

So, the Court could easily have found against the employee in a narrowly drawn judgement that simply applied standard principles of employment. Instead, as in the s44 cases, they brought down a judgement with massive implications. The decision supports a code of conduct that, on its face, prohibits public servants from making any political comment, even on topics unrelated to their job. Given past behavior, it seems highly likely that the Court will take the broadest possible interpretation of this decision.

The only remedy in this case is for the Parliament to restrict the application of the code to allow public servants the same rights as other Australians, to discuss and debate public issues, except where it impinges on their capacity to do their jobs. That’s unlikely, but at least more feasible than a referendum to fix s44.

But if I could have the entire Court sacked and replaced by seven Australians selected by lot, I would certainly do so.

It’s come to this

To say I’m depressed about the current state of Australian politics would be an understatement. But of all the things that depress me, the possibility of a section 44 case against Josh Frydenberg is the most gratuitously awful. If someone had said, ten years ago, that the Australian-born son of a Jewish refugee was ineligible to stand for Parliament because he had failed to secure necessary documents from the neo-fascist government that currently rules Hungary, they would have been laughed at, and rightly so.

Yet, that appears to be the state of the law, as rendered by our appalling High Court. I don’t know what I find worst about this. Is it:

  • The gratuitous silliness of the specific rulings in s44 cases ?
  • The absurdity of legal literalism, particularly in the context of constitutional law, where unintended implications can only be fixed by referendum ?
  • The possibility that the Court will add hypocrisy to stupidity by finding some way of rejecting the case against Frydenberg, thereby showing that there was no need for any of the previous rulings?
  • The fact that the case is being brought by a defeated Labor candidate, cheered on by lots of Twitter users, most of whom are apparently on the left?

The only consolation is that, as in all previous cases of MHRs (but not Senators) found ineligible, Frydenberg will be able to fix things up (wasting time and effort that might better be spent running the country) and win the unnecessary by-election created by our finest legal minds.

Freedom of contract or freedom of speech

A number of comments on the Folau case have made the point that Folau failed to pay attention to the terms of his contracts with Rugby Australia [1] and also with GoFundMe, with the implication that he has only himself to blame for the outcome .

That’s a cute debating point, but it’s not one that should be used by those of us concerned with protecting workers’ rights. The use of contractual terms to constrain what workers say and do outside working hours is a misuse of the power of employers and a danger to free speech on issues of all kinds. The fact that we don’t like Folau’s use of this freedom shouldn’t lead to a retreat from the principle that, within very broad limits, what we do and say in our own time is no business of the boss.

The issue with GoFundMe is less problematic: funding a legal dispute is not obviously part of the site’s mission[2]. But we should be wary of the idea that Internet platforms should be able to set whatever terms of service they like and interpret them as they wish.

fn1 As with just about everything in this case, the exact status of the contract is a matter of dispute

fn2 neither is this much-mocked request by two layabouts for money to fund a trip to Africa that is beyond the resources of the mother who is currently working two jobs to support them in idleness)..

The day after

Like everyone else, I expected a Labor victory in the election. I expected good things from that, and I see lots of bad consequences from the actual outcome.

Still, my personal disappointment is muted by the fact that I found the campaign so utterly depressing. The shift to positivity I noted a couple of weeks ago only lasted for a day. I saw the positive ad I wrote about only once. By election day, like the majority of the Australian public, I just wanted it to be over.

The lesson I draw from this election, and from Clinton’s failure in 2016, is that negative campaigning doesn’t work for the left. It hardens the resolve of the other side, and obscures the fact that most people agree with you on the issues.

But that’s not the lesson that the political class, (for whom the two sides are always interchangeable) and especially the hardheads who ran the campaign, will learn. They will conclude that the small target strategy has been vindicated once again.

A half-decent election campaign ?

The first half of the 2019 election campaign was the worst I’ve ever seen, especially relative to the possibility for real debate. Both sides ran continuous attack ads focusing on the opposing leader, playing into the gladiatorial model favoured by the Press Gallery. Labor, in particular, seemed to have forgotten it had any policy offer.

Since Labor’s policy launch, things seem to have improved substantially. The fact that the launch took place at all, rather than being reduced to an end-of-campaign formality (timed to keep public funding flowing as long as possible) was a positive.

After the launch took place, Labor started running two new ads (at least those are the ones I saw), one continuing the attack on Morrison, but the other pushing positive policies and featuring a lot of leading frontbenchers rather than a single leader.

Obviously, the use of a “team” approach, was to some extent a forced move, given Shorten’s lack of popularity, and the switched in message seemed a bit artificial, but it was still an improvement. And, from what I can see, Shorten is doing a lot better in the media now that he is arguing a positive case rather than merely responding to LNP attacks.

The opinion polls have barely moved through the campaign and, taken together, suggest that it will be very hard for the LNP to win a majority, or even a plurality (more than Labor, but not a majority), of seats. The likely outcomes are a narrow Labor majority or a Labor plurality. Given the likely make-up of the crossbench, a plurlaity would almost certainly imply a Labor minority government.

Either outcome would be a good one, particularly in relation to climate policy. As regards Labor’s tax policies, if they can negotiate their way through the Senate, they should be able to do the same with the Reps.

One sentence that says it all

I’ve been generally appalled by the performance of the media in the current election. This article by David Crowe in the Nine/Fairfax papers is the perfect illustration. Asking what is wrong with the current election, Crowe concludes

The fact is that neither leader has inflicted a killer blow against the other.

The idea that an election is a gladiatorial contest between “leaders”, staged for the entertainment of the Press Gallery has never been put more simply and clearly.

The article is entirely in this spirit, referring to a “lack of intensity”, Shorten’s failure to “hammer nails in the coffin” and so on.

The idea that the parties seeking government might have different policies, and that some might be better than others doesn’t even enter Crowe’s thinking. Rather, policies are sources of “messages” which amplify perceived “strengths” or cover up weaknesses.

To be fair, this has been the approach of the parties themselves for most of the past thirty years, running presidential campaigns, while avoiding any policy commitment that might increase their size as a target. That’s what political journalists know how to talk about. But faced with actual policy differences, they are like literature critics trying to review a mathematics article.

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