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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An unpresidential election

It’s become a cliche to observe that Australian elections have shifted to a ‘presidential model’, in which the central element is a popularity contest between the incumbent PM and the Opposition leader. This has been accompanied by the minimisation of policy differences, as both sides seek the middle ground, and by the adoption of a ‘small target strategy’, particularly by the Opposition (governments have a record from which they can’t easily hide). This election is different, though you might not know it from the media coverage which demands, and receives, photo-ops of the leaders going from one place to another, wearing clothes they wouldn’t normally dream of, and handing out goodies. What are the differences this time?

First, neither leader is all that popular. For the Liberals, this doesn’t make much difference, since Morrison is about the best they’ve got in that respect. By contrast, Labor is running as a party rather than Team Shorten, even leaving him off some advertising material

The converse of this is that local candidates and local issues matter more than usual. There are a string of seats presenting problems for both parties. On the ALP side, there’s Herbert, held by 37 votes last time, and the epicentre of the Adani dispute, and Lindsay, where the sitting member, also narrowly elected in 2016, was pushed out over harassment allegations. Surprisingly enough, a seat-specific Newspoll showed both still at 50-50.

The LNP have many more problems of this kind. There are several seats where sitting members (mostly women) have been pushed out or quit in disgust, hardline rightwingers (notably Abbott, Dutton and Hunt) facing independent challengers and a strong push from Getup, members who seem to have put their personal lives ahead of doing their jobs (Christensen) water issues facing the Nationals in NSW, and Barnaby Joyce, who ticks nearly all of the boxes above.

I’m not sure how much of this is reflected in polling. In cases where the independent has a better chance of winning than Labor, the “two-party preferred” measure is irrelevant in any case.

Finally, as in 2016, and unlike any other election since 1993, the opposition party is offering a clear change rather than a small target. As it turns out, the noise of an election campaign means that this has made little difference. The rhetoric is shrill, but so it was when the parties were, in fact, virtually identical.

The main effect is that, if Labor is elected, it won’t need to spring any surprises on the electorate. It will also have a “mandate” for its policies for what that’s worth. That’s not much, in my opinion. At most, it gives centrist senators a justification for cutting a deal with the government to pass its policies.


Freedom and the Commissioner

There have been quite a few recent cases raising questions around free speech and freedom of the press. Here are some thoughts, not all final.

First up, the question, raised by the cases of Peter Ridd and Israel Folau of whether employers can discipline or sack workers for their views on a range of issues.

Ridd is an academic at JCU who has expressed (often in intemperate terms) the (wrong and harmful) view that the damage to the Great Barrier Reef from climate change has been exaggerated. JCU sacked him, but his dismissal was found by the Federal Circuit Court of Australia to be unlawful.

This was a straightforward finding under industrial law, which accords no special status to academics. But there are good reasons why universities should adhere to a stronger standard, embodied in the notion of academic freedom. As the NTEU vice-president Andrew Bonnell said it’s clear that JCU breached its commitment to academic freedom.

The Folau case is much trickier. In a sense Folau’s religious views aren’t that unusual. Most Christian denominations hold, at least officially, that all non-Christians and all Christians who hold heretical beliefs will go to hell[1], along with Christians who die in mortal sin, which accounts for nearly everybody. But, as Brian Houston of Hillsong Church (not someone I expected to quote with approval) points out, telling people they are going to hell is not helpful either for religious tolerance or to convert them to the truth as you may see it.

What makes this case difficult is that Folau’s job is, effectively, one of marketing the Australian Rugby League so that it can attract sponsors (notably, in this case, Qantas). Whether or not Folau has a case against the ARL, no one can force the sponsors to renew the contracts, or, for that matter, the fans to show up (I don’t know many rugby fans, so this may or may not be an issue).

As is almost invariably the case, former Freedom Commissioner and IPA alumnus Tim Wilson comes out of this looking bad. Back in 2015, there was a similar case in which Scott McIntyre, an SBS sports commentator, expressed views about Anzac Day that were offensive in their content and even more in the way they were expressed on Twitter Even though McIntyre had nothing like Folau’s public profile, he was sacked. Wilson then “Freedom Commissioner” wrote that, since McIntyre was not legally prevented from speaking, there was no free speech issue

SBS simply decided it didn’t want to be associated with him. No one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation.”

Now, Wilson is defending Folau against ‘censorship‘, even though, on the views he has previously stated, there can be no question of censorship in the absence of government action.

I wasted a lot of time on Twitter a few years ago, trying to pin Wilson down on this very question. I can now discern his position: if you say something acceptable to conservatives, it’s free speech, otherwise you can take your chances with the boss.

fn1. Just to tie things up neatly, denying the existence of hell is a heresy.

Half right, and all left, on coffee

Back in the Paleozoic era of blogging, I wrote, in relation to a prediction that latte drinkers would soon be in the majority

I would view this prospect with horror, but I think it will not come to pass. Latte is the Cold Duck of the 21st century, and like Cold Duck will be shaken off with a shudder as people realise what real coffee is about.

Recent research from the Australia Institute suggests I was, at best, half right. Latte drinking hasn’t become the norm but it has survived, while real coffee (short black) remains such a minority taste that it has to be lumped in with the watered down long black.

The good news, (that is, the news that confirms my prejudices) is that latte drinkers are more likely to be LNP voters than anything else. The same is true, though only marginally, for chardonnay.