Rights and wrongs

Tuesday, 1 September 2009 

Readers should be made aware that a fraud is being perpetrated on the international lecture circuit. Some old bugger, called ‘John Howard’, is going around passing himself off as the former Prime Minister of Australia, 1996-2007. Sure, he may look like our 25th Prime Minister, but he is going around saying things that have very little to do with Our Man of Steel.

First we had this so-called ‘John Howard’ pretending to gullible Americans to be a conservative politician of conviction, whereas of course we all know him as that ‘mean and tricky’ politician doing anything to cling to power and who threw what little cargo he had overboard in the last year of his sinking government.

Now he’s popped up again, in Perth last week, fooling unsuspecting Young Liberals at their most vulnerable, telling them that he opposes a Bill of Rights because it would put decisions into the hands of unelected officials whereas government should be accountable for decisions and politicians should not be ‘buck-passers’.

Readers will recognise little in the real former Prime Minister in all of this. It’s not just that he passed over some of the more prosaic decisions like interest rates to unelected RBA officials, but this is supposed to be from someone who turned his ability to avoid blame for things like children overboard into an art form by passing the buck on to aides, public servants and anyone else who got in the way. Even that great respecter of the Westminster parliamentary tradition, Malcolm Fraser, felt confident enough to attack the Howard government’s lack of ministerial accountability. No doubt about it, we are clearly looking at a fraud.

Which is a shame, because this blogger has sympathy for some of what he says. The touching faith that some progressives have that judges interpreting a vague Bill of Rights will somehow carry on their political battles, is one of the wonders of our Political Age. Where on earth this comes from in a country where judges have often taken a highly conservative stance, such as the Chief Justice’s role in the sacking of a Labor government, is hard to fathom. Maybe from Hollywood films, where the judges are invariably black and have hearts of gold.

That the only real guarantor of rights is the political activity of the population who ultimately benefits from them, makes sense and Howard criticises Menzies for his attempts to ban the Communist Party as straying from that principle. Howard gives a reasonable description on what those rights are:

when discussing civil and political rights … one of the functions of the common law had been to protect the individual against infringement of his personal rights.

Take note of this for later.

The speech is travelling pretty smooth on the way to justice and democracy until suddenly, the rear axle nearly goes as it hits this hole in the road:

The Northern Territory intervention, launched by the Howard Government in 2007 involved, amongst other things, a clear clash of rights. There were the rights protected under the Racial Discrimination Act of 1975. By contrast there were the rights of the innocent indigenous children of the Northern Territory to be protected from appalling abuse.

Faced with that conflict of rights my government made a clear choice. It legislated to suspend the Racial Discrimination Act, to the extent necessary, that the measures to support the intervention, and thus protect indigenous children, could take effect. It was the view of the government that the rights of the children should be given far greater weight than any other rights which might be involved.

This turned out to be a prescient remark. Because a couple of days later, Jenny Macklin was invoking those very rights of the child in response to the UN’s criticisms over the NT intervention.

For me, when it comes to human rights, the most important human right that I feel as a Minister I have to confront, is the need to protect the rights of the most vulnerable, particularly children and for them to have a safe and happy life and a safe and happy family to grow up in.

The idea of a child’s ‘rights’ is utter nonsense and actually, everyone knows it. Children do not have the right to vote. They do not have the right to marry. They do not have the right of free association or travel where they please. They do not have the right to apply for a passport and travel overseas. Nor does anyone wish them to. It will be remembered that at some periods during the 20th century all of these rights were denied to at least some indigenous people. The denial of such basic rights to indigenous people is nowadays seen as wrong, whereas of course no one is worried about children not having them.

When people talk about children’s ‘rights’ what they usually mean is entitlement to protection. This is not a case of a child exercising such a ‘right’ when they see fit, but someone else acting on their behalf. In our society that ‘someone’ is primarily the parent, failing that, an institution. In fact, it is to carry out that very role of protection that children are denied such basic rights as described above. You can’t look after a kid if they can jump on the Greyhound bus to Melbourne whenever they like.

For a significant part of the last century, there was contention by the state whether indigenous parents were capable of protecting their children, leading to them being taken away. That stopped being the public basis of policy forty years ago. Last year an apology was made for that public policy – just a few months after it once again became the public basis of a new policy.

Except this time in a sharper vein. The decision of taking children away into social services is a vague area, and even today, as Andrew Bolt likes to remind us, indigenous children are still being taken away at high rates (Bolt thinks this makes the possibility of a stolen generation unlikely, surely more likely?). However, punishing parents abusing their children is more clear cut. Here, as with anyone threatened with punishment before the law, the accused has the right to know the charge, being innocent until proven guilty by evidence and to have it judged in a fair trial.

These are the personal rights that Howard was invoking and the real basis of rights, the rights of the individual against the state. This is often confused nowadays, when anything desirable gets called a ‘right’, setting up conflicts where real rights are undermined by bogus ones. So we have a real right to free speech being undermined by a bogus right not to be offended, the real rights of a woman to have control over her body undermined by the bogus rights of the unborn, the real right to a fair trial and the bogus right of a rape victim not to undergo stress by needing to give evidence. One gives freedom from the state, the bogus one, usually control to the state.

This is what gives the new indigenous policy an even more unsettling direction than before. Macklin and Howard talk about a ‘conflict’ of rights that had to be decided in favour of the child to justify denying welfare to the parent, but no such conflict need arise. Laws already exist for punishing parents accused of what indigenous parents were two years ago (and the penalty is a little bit more severe than restricting welfare). It simply would have involved setting out the charge, getting the evidence and judging it before a fair trial.

But in the case of the intervention,we had none of this. The charge has drifted from sexual abuse to a vague one of neglect, because there was no evidence, neither from the initial report that sparked the intervention, nor from the subsequent thousands of medical checks that followed. So there was no trial; just the punishment and an unproven slur against NT indigenous communities. While the right and left have argued over the nature of the punishment, what we have seen with the intervention is a denial of a basic right in front of the law to be judged whether to be punished in the first place.

At least if it makes anyone feel better, there are those who are intending this to be no longer racially based. Tony Abbott, on his mission to forge a new Right, seems to have overcome his earlier boredom with the indigenous affairs portfolio and has developed a new interest. Uh-oh. On Insiders, fresh from a stay at Aurukun, Abbott was arguing that the intervention provided a basis for restricting welfare to non-indigenous parents as well. One thing that could be said about the real and phoney John Howards, at least they never bothered us with new thinking.

Posted by The Piping Shrike on Tuesday, 1 September 2009.

Filed under The Australian state

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Comments

10 responses to “Rights and wrongs”

  1. fred on 1st September 2009 9:17 pm

    Thumbs up.
    Particularly for this:
    “The charge has drifted from sexual abuse to a vague one of neglect, because there was no evidence, neither from the initial report that sparked the intervention, nor from the subsequent thousands of medical checks that followed. So there was no trial; just the punishment and an unproven slur against NT indigenous communities.”

  2. The Piping Shrike on 1st September 2009 10:17 pm

    Thanks. I notice that Mal Brough, the Great Emoter, on the same program as Macklin, doesn’t even include it in his litany these days.

    I get very annoyed when I hear people pontificating about human rights when today there’ll be children sitting out there in abject squalor with diseases they don’t have to have, with inadequate education, poor nutrition and poor access to health and we have some nicety about human rights legislation

    Funny how in opposition, Brough seems to be more highlighting the failings of government services than the communities themselves. What a change in tune from when he was Minister. Is another apology due?

  3. Nick on 1st September 2009 11:45 pm

    Well said. How sad it is that the current government is perpetuating the unfair policies of the previous government.

  4. James on 2nd September 2009 11:29 am

    Your comments about Abbott are very interesting. He has obviously found some cold air to fill a vacuum. I think he is buoyed by the Howard strategy of maintaining a long political life and waiting until the times come your way. He’s positioning himself for such a scenario. People who persist long enough often get lucky and that’s probably part of his thinking, even though in the current era that probably makes him the king of wishful thinking.

  5. The Piping Shrike on 2nd September 2009 12:44 pm

    Yes, Abbott has been running this ‘new thinking’ on welfare up the flag pole for some months. He seems itching to make the indigenous ‘experiment’ a lesson for us all. Given the ground that has been broken on the intervention, maybe he might find things eventually going his way. No wonder they remain our favourite guinea pigs.

  6. Grumps on 2nd September 2009 2:05 pm

    Hear, Hear, Piping Shrike well argued premise. Thank you for pointing out Howard’s Menzies Lecture.

    I burst out laughing at this point. “ I have long argued that the three great guarantees of Australian democracy are a robust parliamentary system, an independent and incorruptible judiciary and a free and sceptical press. I have frequently described these guarantees as the real title deeds of Australian democracy. “

    I imagine you will have countless hours of thoughtful reflections from this speech.

  7. Ricc on 2nd September 2009 9:53 pm

    I remember hearing that during the beatups against ATSIC, it was not widely known that the entire health budget for Aboriginal people went through ATSIC, while for everyone else it was the Department of Health/Medicare.

    And not surprisingly, per capita the Department of Health spent more on their population than ATSIC did on theirs.

    And the rightwing press shamelessly reported that ATSIC was ‘wasting’ billions, but didn’t feel inclined to accuse Department of Health/Medicare of the same.

  8. Graeme on 2nd September 2009 11:48 pm

    PS. Good post.

    Note how, in the Brough quote, the old order is inverted. The ‘l’iberals invoking economic and social ‘rights’, and Labor being seen as interested only in vacuous, formal or civil and political rights.

    I cavil though with your absolutist dichotomy between ‘rights and from’ and ‘of’ government. It is hard to imagine a meaningful democracy embracing political rights (to vote etc) without a ‘right’ (or guarantee) to a meaningful education. But what is a right/guarantee/enforceable expectation to education, but one ‘of’ government?

  9. The Piping Shrike on 3rd September 2009 8:33 am

    Hi Graeme. I think from what you describe here I don’t see any dichotomy either, although they are distinct but closely related. Let’s say that one is a ‘right’ i.e. to operate with freedom from the state (freedom of speech, to assemble, to protest) and the other is a ‘demand’ (decent healthcare, education, transport etc.). Whether provided by the government or not, I tend to think these basic services are provided with the type of pressure only possible with the first type of rights.

    I would say that such a pressure is a better way of indigenous people getting decent services than the current method, which seems to rely on presenting indigenous people as victims needing state support. This has led to the grotesque result around the NT child abuse scare when some left-wing activists went along with it, thinking it could be used as a lobbying tool for better housing etc. It has instead led to greater state control but not even much better housing, as we see with the current chaos in the NT government. It is this type of ‘right’ of victim protection, which only the state can deliver, that I think is incompatible with basic democratic rights.

  10. David on 29th September 2009 6:30 pm

    As a newcomer to Australia and in uni here in politics, I was extremely moved by your article. It verified why I decided to pursue this area. Please keep up the good work!

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