Lying by legislation

Padraic P McGuinness, The Australian, 12 November 1994


The art of political lying has received considerable public attention recently. But one form of it has been raised to a high point by the Federal Government virtually without notice. This is the legislative lie, whereby a piece of legislation is introduced into Parliament and pushed through as if it were of great urgency, while all the time the Government keeps on reassuring us that all the critics of the legislation are exaggerating or being paranoid and alarmist. If there should prove to be problems, why then, amendments will be introduced to deal with them.

Much the same argument has operated when new international conventions and treaties have come into force - there is nothing really to worry about. We are just doing what any good international citizen would do. The fact that very few other "good international citizens " in fact give international obligations the domestic force that we do, or use them to change the distribution of power laid down in a federal constitution, is airily dismissed. Indeed, most of the "good international citizens" who have happily signed international conventions have done so with not the slightest intention of implementing them domestically.

The racial hatred bill is the latest example of this. It was never given to the Opposition to read, and yet it is being told that there is really no threat to free speech in it. Why not then have discussed it with the Coalition in draft? Those critics of such legislation who cannot be categorised as being part of the Opposition are told that they are making far too much fuss, that the bill will really not prevent anyone from the free expression of ideas, especially if they are sincerely held. Whoever thought that racists were insincere?

The Government really has no justification for legislating in this way, by promise and reassurance. Careful legislative drafting and thorough parliamentary and public examination of any proposed law are needed before anyone can say with any reasonable assuredness what its effects might or might not be.

Even then nobody can predict exactly how the courts will construe the legislation when it is in force, and what parts of it they might find to be valid or invalid on constitutional grounds. It may indeed emerge that an act of Parliament could turn out to have quite draconian implications whatever the bland reassurances given by the Government. And without proper examination of the law in draft, it is difficult to know exactly what the Government really does intend as well as what the actual effect of the law will be.

There is a certain cavalier evasiveness which has become the stock in trade of the Attorney-General, Michael Lavarch, and his colleagues responsible for various laws. Lavarch does not have the legal knowledge, training or experience  to know what most of the laws his department produces for him in fact mean. So we do not know, and no private-sector lawyer is allowed to know in good time, what the effect of any law is likely to be. It often takes months or years to work this out.

When the Government is caught out in its various grubby attempts to interfere with civil liberties it pretends  that it is quite happy about it.

Thus the Political Broadcasting Act was intended to muzzle those critics of the Government who felt that their views were not adequately reported by the media, and who therefore would buy advertising space or time to present their views as they wished. This was a cynical device intended to save the Labor Party money by preventing the presentation of the views of its non-party critics. it would also have greatly magnified  the powers of the media, especially TV, where Labor is notorious for bestowing favours on those who favour it. Fortunately, for free speech, the High Court decided that this was just not compatible with democracy.

What happened? The minister responsible immediately said that this was a wonderful thing, and pointed the way to a Bill of Rights, guaranteeing free speech and political liberties.

What happened to the Bill of Rights? A Human Rights (Sexual Conduct) Bill was introduced to prevent interference in the bedroom antics of Tasmanians. What did the rest of the community gain by way of extension and protection of their rights? Nothing at all.

The mealy-mouthed Lavarch began by saying that prosecutions were unlikely under his new racial hatred legislation. If so, why introduce it?

Yet he also conceded that somebody of American origin might have a case for compensation if he was called a "septic tank" in public. But he also claimed that the law would have  a mainly educative function, even while proposing that the accused might be faced with hearings by the Human Rights and Equal Opportunity Commission. He argued that the fact that there has been no prosecutions under the NSW act meant that there was  no evidence that free speech had been stifled.

Well, there have been few prosecutions under the Tasmanian law, which is supposed to have such a terrible impact on homosexuals in that State - none at all in recent years. In fact even full and graphic confessions by homosexuals have failed to evoke prosecution. By his own logic, therefore, the Attorney-General would have to admit that there was nothing to worry about in the Tasmanian law. It is just there to educate people.

Of course the urgency of action against the Tasmanian law did not spring from the dishonest determination of the UN Human Rights Committee, but from the hope of gaining the support of the gay and lesbian lobbies and fomenting dissention in the Coalition, particularly in the Liberal Party, where there is an active gay lobby. However, there is indeed a danger that a less civilised Tasmanian government of the future, or a government stirred into action by populist extremists, might misuse the law if it is on the statute book.

It is equally possible, indeed likely, that once a racial hatred law is on the Federal statute book it will be misused at the behest of some lobby group which has successfully stacked a few branches of the Labor Party and wants to silence views which it finds offensive, even if they are expressed moderately and in the course of ordinary debate.

The only guarantee which can be believed in the good faith concerning civil liberties of a party which has tried to censor political free speech, which has tried to introduce a national identity card, and which recently commissioned a report (of the committee on the centenary of Federation chaired by Joan Kirner) which blithely proposed the establishment of a complete photographic record of the whole population.

What wouldn't a future authoritarian government give for a database like that!

 Padraic P McGuinness




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