International Citizen

As many of my kind readers may know, I have a particular interest in education policy. I found a series of pieces on the failing overall performance of boys in Canadian schools from the Globe and Mail. I’ve browsed quickly through and there is some interesting stuff. I definitely intend to read through more methodically. It’s not a problem exclusive to Canada; I’m sure policy makers in the UK and Bermuda would appreciate reading up these matters as well. This series seems quite good and should be applauded for its breadth and depth of coverage.

UPDATE: Turns out this is part of a wider series from the Globe called ‘Canada: Out Time to Lead: 8 discussions we need to have‘ which has enticed me further. The other topical series are Multiculturalism, Women in Power, the Military, Work-Life, Health Care, the Internet and Food.

And the Mark has published a response to the first series. Will read that soon too.

So as and when I find some spare time, I like to brush up on my constitutional law knowledge. Because that’s the kind of party animal I am.

These last few weeks, I’ve been reviewing some of my notes on British Constitutional cases thanks to the quirkiness of political situations in Canada, Britain and Australia. I figure further steeping myself in the Westminster tradition will make my views particularly valuable in years to come (witness my earlier comments re: Vauxhall Estates and Thoburn in reference to the UK changing Canada’s constitution).

I also purchased a book on pivotal cases from across the commonwealth world, which includes a very generous section on key Aussie developments including, what I found particularly interesting, jurisprudence upholding an implied freedom of speech in Australia’s constitution.

The background to this is that Australia’s various constitutional texts contain no entrenched statement of rights, as in Canada or the USA, nor has the country adopted any statutory human rights protection, as in the UK or New Zealand. There are various bits and pieces that cover individual areas, and some states have adopted their own without waiting for the Commonwealth. And while many commentators have been pushing for something akin to the UK’s Human Rights Act (including an official legal commission), it’s not forthcoming; Australia has traditional felt that common law protections of liberty and private law remedires have been enough for its citizens.

In 1992, two cases were decided by the High Court of Australia (the highest court in the land since the Australia Act 1986 – more like Canada’s Supreme Court rather than Britain’s High Court) that threw conventional constitutional wisdom on its head.

The first was Nationwide News v Wills. A Commonwealth Act made it a criminal offence to ‘bring into disrepute’ the reputation of the Industrial Relations Commission. It was a strict liability offence, and the Act provided no defence. Nationwide News owned a newspaper in which an article was printed attacking the integrity and independence fo the commission and its members, and sought to challenge the relevant provisions as an affront to free speech.

The court supported Nationwide News’ case, but used different approaches to reaching that decision. The minority approach of Mason CJ, Dawson and McHugh JJ was to decide that the relevant provisions were disproportionate to the incidental scope of the Commonwealth’s enumerated power to make laws on arbitration and resolution to industrial dispute (s51(xxxv) of the Constitution) and had to be declared void.

What is most interesting, however, is the majority’s approach (Brennan, Deane, Toohey and Gaudron JJ) which, even if a bit varied in application, was based on fundamental principles that permeated the Australian Constitution. Representative democracy was identified as one (the others were federalism and checks & balances) and to give effect to the practise of democracy and to allow voters to make informed choices, there was a necessity for citizens to be able to communicate freely on political matters, subject to any reasonable and proportionate limitations. Therefore, the offending provisions were declared void to the extent of this implied limitation.

Of course, this does seem a controversial decision because of its novel attempt to limit the powers of the Commonwealth Parliament to make law. I have to admit that I like the idea very much, as it’s consistent with my own views on the judiciary’s role to hold the exercise of power to account. And it’s very difficult to sustain legislative provisions as seemingly unreasonable as a blanket prohibition on criticising a public body.

But this novel approach can be a bit wooly and there’s a slippery slope towards more controversial decisions, such as that in Australian Capital Television v Commonwealth, decided in the same year as Nationwide.

In that case, a challenge was brought against ammendments to the Broadcasting Act 1942 as part of a series of electoral reforms. The offending provisions were prohibitions on advertising on behalf of government bodies during election campaigns and requirements of private broadcasters to provide free airtime to parties according to a scheme based on seat distribution in Parliament (with 5% for outsiders).

The court in this case reaffirmed the implied protections articulated in Nationwide and ruled that these provisions were also in contravention. Such prohibitions during election campaigns, it was said, interfered with Australian voters’ ability to exercise their democratic right by limiting the level of discourse in anticipation of election campaigns. Parties outside the mainstream, independent campaigners, trade unions and other legitimate interest groups were penalised in not being able to get their message distributed in what was regarded as a highly restrictive broadcasting regime.

The Commonwealth’s arguments were that the provisions enhanced democracy by taking out the corrupting influence of big money and allowing access to small parties without large communications budgets. It was also a legitimate exercise of the Commonwealth’s powers to protect the electoral process, and it pointed out similar electoral regimes in other states.

There was also an argument on undue acquisition of property from ACT, but the court did not decide on this question. There was also an intervention from New South Wales (the Ontario of Australia) that the provisions impact States’ rights to govern their own elections, though this submission was rejected (and interesting to note, South Australia intervened in support of the Commonwealth on this question – can’t think of a Canadian equivalent – sorry!).

Anyway, there you go. On the one hand, the Australian High Court struck a blow to unfettered executive and legislative power in Nationwide (liberals rejoice!), but on the other, used that newfound power to strike down a progressive regime (liberals = sad). While the ACT decision may seem a bit extreme, it appears that the meagre allocation to parties outside the political mainstream may have turned the court’s opinion. There is certainly a legitimate interest in protecting the voiceless. Beyond that, however, this seems to harken to the US Supreme Court’s ‘money as free speech’ approach seen in Citizens United.

Perhaps the bigger issue here is the expansion of judicial power. Nationwide’s result seems perfectly reasonable. Why shouldn’t Australia also have a freedom to communicate? Why should Parliament legislate a blanket restriction on criticising an executive agency? And why shouldn’t the judiciary stand in as a check on other state power? Well, for one thing, when the judiciary takes on a potentially wide-ranging power for itself, the consequences are difficult to predict.

Overall though, I’d say that Australia’s (and the wider Commonwealth World’s) constitutional heritage is better served by this novel approach to rights adjudication.

International Citizen

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Attempted Murder Trial

My political position.

Canada heading to the polls

Changing Education Paradigms

Failing Boys in Canadian Education

Australia’s Implied Protection for Political Speech

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