Australian Federal Election: The day after

[nerdanel]

So what, other than custom, protects the rights of those not in the majority?

What, other than the Bill of Rights, protects the rights of those not in the majority in the United States?

In all honesty, I’m not convinced that a codified bill of rights is a better guarantor of rights than common law and parliamentary democracy. The U.S. bill of rights did nothing to stop slavery, native dispossession and segregation for example, almost certainly the three biggest human rights abuses in American history.

I don't think that it is sensible, even jokingly, to equate "custom" (essentially, the good will and good faith of politically-elected representatives) to a legally supreme document that is enforceable by a branch of government comprised of highly-educated individuals not subject to removal for politically unpopular decisions. I certainly feel that my rights are safer within the latter system.

What is true, as you implicitly point out, is that a codified bill of rights within a judicial supremacy-embracing state is only as good as the branch of government charged with enforcing it. And indeed, the American judiciary has had some prominent historic failures, particularly around racial and gender equality. Perhaps we can say this: a judiciary that contains no, or few, minorities is more likely to fail at protecting minority rights than a diverse, representative judiciary. The fact that a judiciary in the former mold failed at times in its constitutional mandate does not mean that the same will hold true of a diverse, representative, but not politically accountable judiciary. I believe that the latter iteration of the judiciary will prove much more protective of the constitutional rights of minorities over time, and I think that the resulting form of judicial supremacy will prove to be constitutionally preferable to parliamentary sovereignty.

[nerdanel]

One additional thought: when I say "diverse, representative judiciary," I do not only mean along race and gender lines. For instance, I would not be so optimistic about an all-religious judiciary's ability to protect the (non)religious rights of atheist and agnostic Americans as I would be about a judiciary that includes members of the latter groups. And, a time-honored issue that is discussed in left-leaning academia is the problem of the judiciary containing very few members who have spent any time in their lives as lower-class. And I think it's important to have judges with ties to immigrant communities. And judges with physical disabilities are key. And so on. The idea is to have a rights-protecting judiciary that collectively represents as many facets of the national experience as possible, both mainstream and minority.

If the entire judiciary is comprised only of people for whom the status quo has never caused any difficulties - which was largely true at the time of the decisions you cited - then it will likely be difficult for the judiciary to perceive the ways in which the status quo may be insufficiently protective of minorities' constitutional rights. And race is only one of many ways that that manifests.

[Túrin Turambar]

What is true, as you implicitly point out, is that a codified bill of rights within a judicial supremacy-embracing state is only as good as the branch of government charged with enforcing it. And indeed, the American judiciary has had some prominent historic failures, particularly around racial and gender equality. Perhaps we can say this: a judiciary that contains no, or few, minorities is more likely to fail at protecting minority rights than a diverse, representative judiciary. The fact that a judiciary in the former mold failed at times in its constitutional mandate does not mean that the same will hold true of a diverse, representative, but not politically accountable judiciary. I believe that the latter iteration of the judiciary will prove much more protective of the constitutional rights of minorities over time, and I think that the resulting form of judicial supremacy will prove to be constitutionally preferable to parliamentary sovereignty.

Isn't this something of a tautology? Obviously a society where minorities are enfranchised enough to get appointed to the judiciary is a society which is unlikely to vote for discriminatory policies. Again, I see the legal protections offered by the courts in these situations to be something of a case of shutting the gate after the horse has bolted. That's not to say that I see these protections as valueless, only that, for the big issues, only 'custom' in the form of political will in the general population will bring about change.

[Primula Baggins]

Obviously a society where minorities are enfranchised enough to get appointed to the judiciary is a society which is unlikely to vote for discriminatory policies.

I don't think that's obvious at all. Not in the United States, anyway. Policies discriminating against LGBT citizens have been voted into place repeatedly in this century.

[Túrin Turambar]

Obviously a society where minorities are enfranchised enough to get appointed to the judiciary is a society which is unlikely to vote for discriminatory policies.

I don't think that's obvious at all. Not in the United States, anyway. Policies discriminating against LGBT citizens have been voted into place repeatedly in this century.

But again, though, the judiciary only started striking down those laws after social attitudes to homosexuality had changed. Before that it was no aid to LGBT rights at all. An openly gay judge is obviously impossible in a society where homosexuality is illegal.

[Primula Baggins]

But there were gay judges, including openly gay ones, before the social Zeitgeist changed as much as it has (which in many states is still not enough for a majority to support even rudimentary rights for gays). One of the reasons civil rights seem to advance chaotically and sometimes very suddenly is that support for applying them more widely has always been a patchwork. At some point the edges grow together enough that real progress can be made.

When the Supreme Court ruled that states could not outlaw interracial marriage, there was still majority opposition among the public to allowing it. Without the Bill of Rights, I am not sure what that decision would have been based on.

[nerdanel]

Isn't this something of a tautology? Obviously a society where minorities are enfranchised enough to get appointed to the judiciary is a society which is unlikely to vote for discriminatory policies.

Not in the least. We have many religious minorities being appointed to the bench, but there are many problematic instances in which the separation of church and state is not observed. A judiciary which includes minority candidates is more likely to be sensitive to the inequality these policies create between members of the majority religion and all others.

We have gays and lesbians serving as judges - some openly, some not - but we do not have legal equality for gays and lesbians in this country. The fact that the judge who found California's Proposition 8 unconstitutional happens to be a now-out gay man illustrates the reality that we can have minorities on the bench while still having laws that discriminate against them.

We have an increasing number of women on the judiciary, but inequality against women persists in many glaring, condemnable forms. Women do not enjoy the right to walk down the street at any time of the day without fear of harassment, assault, rape, or murder - to an extent that is simply not true for men - and only slowly are the laws changing to be more protective of women (e.g. recognizing realities like spousal and date rape). Women often face employment discrimination, constant assault on their reproductive rights and bodily autonomy, etc. These realities did not somehow disappear when women were appointed to the judiciary - but women's presence on the judiciary has helped and will continue to help to combat these realities.

Etc.

I am not arguing against your point that "political will in the general population" is also needed to effect lasting change. I am, however, arguing that judicial supremacy is a key element of a rights-respecting constitutional framework* -- that custom is not sufficient. While judicial supremacy can be spectacularly successful even where the judiciary is not representative (see Brown v. Board - your argument would essentially have asked black and brown youngsters to wait for integration until there was "political will in the general population" to allow them the same access to education as white youngsters) ... I think judicial supremacy is most effective where the judiciary is representative of the general population. And it is certainly possible for minority judges ("minority" used in the broadest sense of the word) to be appointed before there is political consensus that their minority group should receive their full complement of constitutional rights.

*I would further argue that the Council of Europe's tacit nod to judicial supremacy -- by allowing individuals to file petitions that member states have violated their human rights and subjecting those petitions to ECTHR judicial review and remedy that is binding upon member states -- further illustrates my point. Even some states that may pay lip service to the concept of parliamentary sovereignty have in fact recognized the importance of binding judicial review of the political branches' conduct.

[Túrin Turambar]

I am not arguing against your point that "political will in the general population" is also needed to effect lasting change. I am, however, arguing that judicial supremacy is a key element of a rights-respecting constitutional framework* -- that custom is not sufficient. While judicial supremacy can be spectacularly successful even where the judiciary is not representative (see Brown v. Board - your argument would essentially have asked black and brown youngsters to wait for integration until there was "political will in the general population" to allow them the same access to education as white youngsters) ... I think judicial supremacy is most effective where the judiciary is representative of the general population. And it is certainly possible for minority judges ("minority" used in the broadest sense of the word) to be appointed before there is political consensus that their minority group should receive their full complement of constitutional rights.

Your idea of a ‘full complement of constitutional rights’ does seem to be broader and more aggressive than mine.

Take gay marriage, for example. To be honest, I don’t really have a problem with courts striking down anti-gay-marriage laws – they benefit some and harm nobody. But for all its virtues the U.S. bill of rights does not on any plain or even broad interpretation guarantee a right to marriage, let alone gay marriage (at least on my reading of the document). And if a court is willing to read the document that loosely in favour of a position I support, they could just as easily do so in favour of a position that I oppose, and there is nothing I or anyone else could do about it. The American Bill of Rights has, among other things, hamstrung efforts by state and federal governments in the direction of defamation laws, campaign finance reform and gun control, all of which I'm free to vote on as a citizen of a non-bill of rights country. More recent and 'progressive' bills of rights, as those in Europe and Canada, can have even more egregious consequences. That is why I am unwilling to trust the courts with that sort of power.

It may be a class thing, but I am also unwilling, now that we have gone to so much trouble to wrest political power from a wealthy and educated elite to go and hand that power meekly back, as if mass democracy wasn’t really a great idea after all. I grew up in housing commission estates and have a law degree from a third-tier university. I might get elected to Parliament but even in a country as egalitarian as mine I am unlikely to ever get appointed to the bench of a superior court. I agree with British Socialist Ben Tillett when he declared on the Australian constitutional debate that “we will not be prepared to hand our liberties…to either an irresponsible Governor-General, an irresponsible but mischievous Supreme Court, or an irresponsible and unrepresentative Senate”.

Perhaps these posts should be moved to the comparative protection of human rights thread?

[Primula Baggins]

From the Supreme Court's 1967 decision in Loving v. Virginia, which struck down state laws forbidding interracial marriage:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The Court did in fact find marriage to be a civil right that could not be denied under the Fourteenth Amendment.

I do not see the benefit in letting one group of people vote on the civil rights of another, often smaller or less fairly enfranchised group of people. This is the whole point (to my mind) of guaranteeing certain rights in the Constitution.

[axordil]

Prim--

I agree, but let's be honest:that's the only way minorities get enforceable rights, directly or indirectly. The Bill of Rights and other amendments to the US Constitution were voted on and approved by representatives of the people, which is to say, representatives of a majority of those already enfranchised.

The Judiciary can't protect a right that isn't either obvious or strongly implied in the law.

I would say that we have a handful of necessary but not sufficient items in the mix here, and that some minimum number of them have to come together to protect rights, especially minority rights, in a meaningful way. A Bill of Rights is *two* of them: a codified version AND a definition not easily subject to political whim. I leave the others as an exercise for the intrigued.

[Primula Baggins]

There's the combination of the Bill of Rights and time, too. I doubt that many of the propertied white men who voted the Bill of Rights into place ever imagined that it would be used to extend the franchise and other rights to women, nonwhites, and the unpropertied. It was first necessary to see members of those groups as people and citizens. It was fortunately not necessary for a majority of the franchised to agree.

[axordil]

Yes. The fundamental error of "strict constructionists" is their belief that the Constitution and Bill of Rights were the founders setting in stone how the country should work, as opposed to setting a course for how it should adapt.

[Túrin Turambar]

I remember the exact moment, in 2006, when Kim Beazley’s leadership of the Federal Labor Party became terminal. It was a minor thing – Beazley confused Australian TV personality Rove McManus with American political strategist Karl Rove when making a brief off-the-cuff speech. But it was the tipping point – after a series of disappointments, it was when his authority finally left him.

Julia Gillard may not have reached that moment, but it seems that it probably isn’t all that far off. It’s obvious that the government is now in crisis. It’s ironic, that in the one country in the OECD which has low and falling government debt and low and falling unemployment, that the government should be in such serious trouble, but it’s hard to deny that they’ve bought it on themselves. It seems to me that Julia Gillard is simply a terrible communicator. When speaking, she adopts the hectoring tone of a primary school teacher. It seems that her government, despite having a number of sound ideas, continues to insist on pitching itself to some imaginary constituency that responds well to be being patronised. On some issues, like gay marriage, progressives see it as gutless. On others, like carbon pricing, conservatives see it as extreme. On some others, such as asylum seekers, it has managed to anger practically everybody across the entire political spectrum. And to the middle, it gives off an impression of incompetence.

First there was Australia Day. One of the Prime Minister’s staff, in an attempt to undermine Opposition Leader Tony Abbott, whipped up a mob of aboriginal protestors. They descended on the Prime Minister and Leader of the Opposition while they were handing out medals to police and firefighters for their work in the Queensland floods, and images of the Julia Gillard being dragged to her car by a burly security guard were flashed over world news bulletins. To cap it all off she lost a shoe in the process, which was subsequently returned but hardly boosted her image. Her means of coming to power continue to haunt her, with an ABC current affairs program ambushing her with fresh revelations about the events of Kevin Rudd’s downfall last week. She came across badly in the interview, as she does all too often. And last Sunday the Melbourne Age ran a front-page story asking if she was the worst Prime Minister since the hapless Billy McMahon.

Does Labor have buyer’s remorse? Gillard’s predecessor, Kevin Rudd, is significantly less popular in Caucus than he is the Australian electorate. Some of Gillard’s supporters have set out to remind people why he was dumped in the first place by leaking a video of him melting down and swearing at his staff while rehearsing a speech. But people are counting votes in the Caucus nonetheless. Even Gillard’s strongest supporters admit that he now probably has at least 30 votes in the 102-member Labor Caucus. A few weeks ago they conceded no more than fifteen. He is not actively campaigning and has affirmed his loyalty to the Prime Minister whenever asked, but the issue is not going away. And while Rudd may have been hard to work with, he could draw votes.

It is now expected that there will be a leadership spill early next week. No matter what it is hard to see how Gillard can survive – even if she wins, her Prime Ministership will be mortally wounded.

[Túrin Turambar]

The vote is set for 10 am on Monday. The ALP is in a terrible bind - Rudd is far more popular than Gillard in the community, but many of his former colleagues found him so hard to work with that they have no desire to see him back.

The outcome is likely to be the worst-possible for Labor. Rudd will not win, and he will not win enough votes to get close, but he will win enough to show that support for the Prime Minister is weak. The government has had all its dirty laundry aired, and plenty of ministers and members have been virtually recording Liberal Party campaign ads all week. Unless a third candidate with some credibility can emerge down the track, the government's situation looks even worse than it did before.

[vison]

Reminds me of John Diefenbaker's day.

With friends like that, who needs enemies, eh? The knives are out and won't be sheathed until they have tasted blood . . .

[Túrin Turambar]

The contest was so predictable I even forgot to mention the result - 71-31 to Gillard. Rudd is on the backbench. I doubt the government's situation will improve all that much.

[Impenitent]

No. It's a dead donkey.

[Túrin Turambar]

One thing I do miss about Queensland is the state’s extremely interesting and idiosyncratic politics.

Labor made an attempt to better connect with the state’s young and working-class voters by nominating a nineteen-year-old labourer, Peter Watson, as its candidate for the rural seat of Southern Downs in the upcoming election. Unfortunately, he turned out to have some…interesting…views on homosexuality and race. He maintains that he should be correctly described as a ‘white nationalist’ rather than a ‘white supremist’, that his support for re-introducing the White Australia Policy is in line with traditional Labor values and that his claim that homosexuality needs to be eradicated in order to stamp out paedophilia is backed up by good research. He made some even more extreme claims on internet messageboards in the past, but insists that they date from when he was going though a ‘Stalinist phase’, and after all, we all go through phases growing up. Nonetheless the party is unpersuaded and has disendorsed him.

Someone who does not need to fear disendorsement is colourful independent MP Bob Katter. He holds the north-west Queensland-based Federal seat of Kennedy, which is larger than either California or Spain. He has decided to throw a spanner in the works by running a slate of candidates in the Queensland state election under the banner of ‘Katter’s Australia Party’, mostly in support of issues that he considers to be important to people in rural Australia.

Katter has never been afraid to wade into controversy, and when Opposition Leader Campbell Newmann admitted that he didn’t really have a problem with gay marriage he saw his chance, running this bizarre ad. Even fairly staunch conservatives have come out and attacked the ad for being homophobic.

Queensland is a conservative state, but mainstream conservatives face the constant fear of being outflanked by rural-based populist movements, as happened in 1998. If this is the best the KAP can come up with, though, I expect that the LNP’s expected victory in two weeks is probably safe. But people have written books about the oddities of the Sunshine State’s politics (State of Mind, The Deep North, the Hillbilly Dictatorship, etc) so who knows.

The LNP had a scandal to, but it was a more conventional one – a candidate going to a swinger’s club.

[Impenitent]

It's a laugh-or-cry situation for me; if I think about it too hard, I find it both frightening and inexplicable. Katter's actions are so often outrageous they prompt the laughter of disbelief.

I seem to live in an entirely different reality - certainly to Bob Katter and his ilk, but also to Abbott, and even to Gillard on so many issues. My 'best fit' is probably Bob Brown, but not all the Green's policies sit easily with me.

I've grown so cynical about politics on the large scale that I have a hard time garnering enthusiasm. A far cry from my activism in my late teens and twenties.

[Túrin Turambar]

The last week in Queensland has been even more frantic than usual.

Logan City Councillor and one-time LNP candidate Hajnal Black is on the run after the stormed out of a court appearance where she was facing various charges related to misuse of money. She is now on the run – ironically, her previous claim to fame was that she went to Russia to have a controversial medical procedure to have her legs extended to make her taller. Under the pseudonym Sara Vomanen, she subsequently wrote a book about the experience called ‘God made me small, but surgery made me tall’. The idea of a disgraced politician (and a councillor from my city no less) evading a police manhunt on surgically-extended legs seems like some sort of supervillain origin story to me.

Edit: Black has been captured.

Following the backlash to his party’s bizarre anti-gay marriage ad, Bob Katter has adopted a new strategy. He has released a Youtube video of himself marching on Parliament House with ‘Katter’s Army’, a flashmob of baseball-bat wielding breakdancers. As The Australian put it earlier this week, Katter had released a video of himself dancing to the Bad Boys for “purposes unclear”.

In more sedate insanity, billionaire mining magnate and major LNP backer Clive Palmer has claimed that the Greens are secretly funded by the CIA, which is apparently trying to undermine Australian mining company’s in favour of American interests. His fellow conservatives are not exactly comfortable with his ideas, particularly given the importance of the Australia-U.S. Alliance.

At any rate, even with the oddness of their major financial backer, their loose cannon councillor and the accusations of the KAP, the LNP seems set for a huge win in the Sunshine State tonight. I might liveblog on my website.

ETA: I don't believe we have any QLD politics fans here except me, but I'm blogging here.