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Monthly Archives: October 2011

The Gillard Government and, moreover, Gillard herself have been criticised for passing the carbon tax and Malaysia solution bills side by side. The government could have had a wonderful week in which it won a major policy victory. Instead, it was overshadowed by this great defeat in immigration. Some even argued it was risky for the Government to take the risk of a constructive no confidence motion.

I wonder how airtight this logic is. The carbon tax is deeply unpopular, the benefits from having a win in Parliament would be swiftly overwhelmed by the Liberal’s attack dogs. A whole week of whinging about the great big tax. Instead, the Gillard government swept those headlines away with a kiss and an ability to brand Abbott as Dr No on the most crucial issue in bogan Australia. Plus, she healed divisions with the Left. I call that a win.

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When I last blogged on the Tea Party, I expressed sympathy for their goals but I believe the results they demanded were unrealistic, factually inaccurate,and that they didn’t understand the consequences of what they were saying. I also observed the rich intellectual history and tradition behind the Tea Party, a revolutionary undercurrent within the Republican Party that has always existed throughout US history. It taps into the thinking of some Founding Fathers, like Thomas Jefferson (before, as President Jefferson he vastly expanded the reach of the executive government) or Patrick Henry. It taps into the thinking of Milton Friedman, Hayek and their ilk.

I have the same sympathy for the Occupy Wall St protests. But what’s striking is that these protesters lack the intellectual oomph that the Tea Party had. Yes, yes. It seems odd to call a movement whose mascot is Sarah Palin ‘intellectual’, but isn’t the point of a team mascot to be a party balloon filled with naught but hot air? And yes, ironic also given the scorn with which the Tea party holds for ivory tower intellectuals.

I don’t mean that individual complaints lack substance or theory. Take, for example, the complaint that “[t]hey have perpetuated inequality and discrimination in the workplace based on age, the color of one’s skin, sex, gender identity and sexual orientation”. I imagine that if you spoke to the protesters, they would wax eloquent about the problems with privilege. Its an intellectual theory, it has substance even if I personally believe its intellectually flimsy and indefensible.

These individual complaints have yet to coalesce into a broader message which can seize the mind and thrill the heart. When Martin Luther King marched on Washington, he brought with him a dream and a Bible. He spoke of equality, tapping into the rich discourse about individual rights and about loving thy neighbour. Just as importantly, these mass movements must present a compelling alternative. The Tea Party presented a coherent alternative – a low-taxing, unintrusive government. The problem was that we were unwilling to abandon the social safety net which the government provides us. The Occupy Wall St movement has no alternative. Do they want greater regulation around each of the areas they outlined? We just don’t know.

The failure to present a plausible alternative is not a new phenomenon for the Left. Ever since Marx’s theories were discredited by reality itself, the Left failed to show its followers how to live a virtuous life. Meanwhile the Right demonstrated how a capitalist life could enrich the world. By being selfish and improving yourself, you improve the economy and lift the living standards of the very poorest in the world. How can the Left compete with that? Their current conception is to throw away your life by volunteering in Africa or by joining hippie protest movements. The answer is much simpler. It’s to present a vision of a community of peoples. People joining volunteer organisations in their local neighbourhoods – making friends whilst doing good. Becoming community organisers like a younger Barack Obama.

Many commentators have observed that the protesters have not made concrete demands about what policy changes they would like to see, or that their message cannot be reduced to soundbite format. Too true. But my complaint goes deeper. There is no broad intellectual message behind all of these disparate complaints that go deeper than “corporations are too greedy”. I knew that already.

The Tea Party and the Occupy Wall St movements have touched a raw nerve. Economic turmoil causes pain; that pain has found expression in freedom of expression and protest. Mass movements, however, cannot be carried on emotion alone for any budding film director knows the impossibility of sustaining one emotion for too long.

So far, the Occupy Wall St movement has brought out a list of vaguely worded c0mplaints. Many of these are highly contestable or outright wrong (“They have poisoned the food supply through negligence, and undermined the farming system through monopolization”  – how can they have done this, if agriculture isn’t a monopoly or even an oligopoly?).

Without a message or alternative vision or facts to substantiate their arguments, the Occupy Wall St movement is vulnerable to the charge that they are hipsters, chasing the latest cause de celebre. Until they can articulate what they are protesting about, how are we supposed to know what to do about it? They might as well have asked us to imagine no possessions and a brotherhood of man.

I’ve been looking into the marriage power in the Constitution for an assignment, and its a surprisingly interesting question from a conceptual point of view.

Question: Can a stream rise above its source?

A constitutional lawyer would express horror at the mere thought; Parliament plainly cannot expand its own legislative powers by passing an Act which defines its powers. And yet, how are we to construe s 51, which grants Parliament “power to make laws… with respect to… marriage”?
If Parliament were to pass a law in 1910 that permitted gay marriage, contrary to all the mores of that time, would it be valid? If Parliament in 2011 were to pass a law that permitted polygamy or bestial marriage, would that be valid? Wouldn’t these laws be invalid, unless Parliament could enlarge the ambit of the marriage power by passing an Act defining marriage as including a union between a man and a man?

There is obiter suggesting they can:

“Under the power to make laws with respect to marriage, I should say that the parliament could prescribe what unions are to be regarded as marriages”

– Higgins J, AG(NSW) v Brewery Employees Union (1908) 6 CLR 469 (Affirmed by Windeyer J, AG(Vic) v Cth (1962 ) 107 CLR 529; by the Full Family Court in Cth v Kevin & Jennifer [2003] FamCA 94)

This must be wrong, according to any constitutional analysis. s 51(xxi) must be characterised first, then we must ask if the Gay Marriage Act falls within that characterisation. Brennan, Mason, Deane JJ in Cormick and Cormick v Salmon (1984) 156 CLR 170 make this point.

The word ‘marriage’ would have a meaning separate to that in the Marriage Act. That word and that power evolves over time, just as the external affairs power and the aliens power have evolved in very distinctive ways. Those powers, however, may be controlled by reference to events external to Australia (such as making of the Balfour Declaration and the passage of the Statute of Westminster and the Australia Acts).

The marriage power must be referable to social indicia, like the community’s acceptance of gay marriage (or polygamy and beastiality). Those are murky waters for the High Court to plumb. It makes the Court political.

It also acknowledges the power of the common law to shape the Constitution itself, which is a thesis that Sir Owen Dixon has advocated for. As Brennan J said in Cormick, the meaning of marriage is “ascertained… by reference to the customs of our society, especially when they are reflected in the common law.

A contrary view might be that s 51(xxi) might be an exception to the ordinary rule that international law cannot be used to construe the Constitution. The High Court might very well have reference to treaties and international case law to ascertain how acceptable marriage is in the wider community.

Needless to say, I agree with the Dixonian view. The question is not what marriage means according to humanity or the international community. The Constitution asks what marriage means in Australia, so international law can only be evidence at best.