A free and fair Australia (and tomorrow the world)

In parliament where laws are made you only need support of slightly more than half the votes to make a law, or repeal one. In theory, each parliamentarian is representing the will of the people - but in the real world we know that is not the case. They also represent themselves – keeping one's highly paid job and perks will affect their judgement . They are also expected to represent not only their party but their particular faction within that party. Only then comes their electorate - which is just one small piece in the enormous jigsaw that is our country.

When it comes to making laws there exists little incentive to consider the will of the actual majority of the people let alone the population of this country as a whole.

So how do we decide whether a law is good for all citizens of the country? Perhaps by agreeing on a way each law can be tested.

For god knows how long the test for validity of elections has been a simple one – they should be free and fair.

According to Bryan Mercurio and George Williams (http://apo.org.au/node/664) there are four principles of free and fair elections - put simply as equal opportunity to participate, voting with free conscience, an accurate report of the outcome and voter knowledge about the process and candidates in an election.

So if it works for elections, as the free world has agreed that it does, why not as a test for lawmaking?

Two simple questions,

1. Does the law take away the freedom of our citizens?
2. Is the law fair to all citizens of the nation ?

If the answer is yes to the first question and no to the second – then the law is bad and should not pass.

Take the proposition to change the law so same sex couples can marry. Does it take away anyone's freedom? No. It means more people free to marry. Is it fair to all citizens? Of course – no one is disadvantaged by the change in the law. So same sex marriage passes the test with fabulous flying colours.

Federal legalisation of cannabis passes also. Australian citizens have a new found freedom to grow plants in our backyards and smoke them to our hearts content. Fair? Absolutely (currently only the denizens of South Australia and the ACT can do this, which is bloody unfair to the rest of us).

Section 18C of the Racial Discrimination Act makes it unlawful to commit a public act that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people based on their race. Takes away our freedom? Yes – our freedom of speech. Fair to all? No way. If I can lawfully state that “women shouldn't be allowed to drive” but not ”Asians shouldn't be allowed to drive” then it's not fair to all. So 18C goes.

Ok so it's not so easy to test all laws this way – applying it to the Seafarers Safety and Compensation Levies Collection Bill defeated me. But try it yourself on any of the contentious Bills before Parliament - you may be surprised at the outcome.

Remember you are free (and try to stay that way).

Police ain't got no gun (you don't have to run)

Be glad that you are free
Free to change your mind
Free to go most anywhere, anytime

No I didn't write those words it was Prince Nelson Rogers formerly the artist formerly known as Prince from the double album 1999 - which was the most exciting thing that happened to my world in1982 (I was still at school). And yes, these lyrics from “Free” were the inspiration for my blog's title.
 
Prince's enthusiastic endorsement of promiscuity, his sexual ambiguity, his flamboyant fashion sense gave him the appearance of a libertine rather than libertarian. But his libertarian credentials were there all along.
 
Soldiers are a marching, they're writing brand new laws
Will we all fight together for the most important cause?
Will we all fight for the right to be free?
 
These simple words are exactly what I'm writing about 35 years later. Maybe society doesn't change as much as we think it has. Maybe I just never grew up.
 
Libertarians are not anarchists. We don't oppose laws or law making. We just believe that lawmaking should be restricted to protecting citizens and our property rather than forcing us to go along with a socio-political or religious agenda.
 
The most exciting track on that fine album for 15 year old me was D.M.S.R or Dance Music Sex Romance – all of which I was looking forward to in this thing called life.
 
I say everybody - screw the masses
We only want to have some fun
I say do whatever you want - wear lingerie to a restaurant
Police ain't got no gun, you don't have to run
 
The last line baffled me a bit - police in America definitely had guns and were willing to use them. What I believe he was saying was simple libertarian creed. As it is not illegal to wear lingerie to a restaurant, the police cannot take action against you so you have nothing to fear from the law.
 
These days it is not unusual to see young women in lingerie on the streets come Saturday night in summer. Lo and behold – no one arrests them or shoots them. So why not in 1982? What were we afraid of?
 
Well sexual assault for a start. Indecent assault at the very least.
 
Prior to the Crimes (Sexual Assault) Amendment Act of 1981 these offences did not exist in NSW. There was only rape – narrowly defined as a forcible penile penetration of a vagina. To get a conviction for rape there needed to be evidence of violence and it certainly helped if the attacker was a stranger and the victim a virgin. The rapist was best protected by the law - not the victim.
 
Since then, NSW legislation has criminalised most sexually abusive behaviours - not limited to penetrative sexual acts between female victims and male offenders. 
Non-penetrative offences were criminalised as indecent assault. Men, women, children and transgenders are now protected by comprehensive sexual assault laws.
 
But it didn't have to go this way. There are many countries in the world where the law dictates what women should wear in public so as not to provoke sexual urges in men. Blaming women for crimes committed against them was common in Australia at that time and still persists today.

So in my wild erratic fancy I would like to think that that Prince had a hand in all this. That his words resonated with someone other than a dance crazy adolescent with big hair. That when the choice came to either criminalise what women wore in public, or criminalise the behaviour that prevented them from doing so, our lawmakers chose the latter. 
 
They remembered that we are free. Don't ever let them forget.

More on bigots (and your right to be a moron)

While checking facts for my previous post regarding our right to be bigots, I came across this truly terrifying statement, in the once great Sydney Morning Herald, by a Professor Andrew Lynch, a director at the Gilbert + Tobin Centre of Public Law at the University of NSW.

“Brandis presents his case as one of inviolable principle, yet we need only reflect on the circumstances of the notorious Bolt case to appreciate why free speech might justifiably be ceded to other interests. The reality is that some voices are louder than others in our democracy.”

Bullshit.

It's not principle – it is the law that is inviolable and Brandis did not invent it. And did you really just state your opposition to free speech because you don't agree with Andrew Bolt? Doesn't that make you a bigot? And since I don't agree with you and and you write for the Herald while I'm just a lowly blogger your voice is louder than mine so I guess I should be able to shut you down? (you twit).

He went on to burble “Law is an instrument through which a community's values and rights may be given effect.”

Bullshit.

This is Australia and the only right we have is to do what is not prohibited by law. When you make a law you take away our rights. How can our rights be “given effect” by taking them away? (You twit).

As for community values – do you really believe Australia is a single communal entity sharing identical values? If so – you need to get out more.

OK so this guy is a lawyer and probably doesn't believe this bullshit either. His client, the left leaning SMH, is paying him to come up with a legal argument to make George Brandis and the government look like dicks. This is politics, not law.

And here lies the danger to our freedom, folks. Politicised media pandering to an audience on the Left or the Right to prop up their falling readership. Politicians and their lackeys who will shut down free speech to win a political argument. Who will make laws not for the people but to help themselves get re-elected. They will glibly tell you that they are protecting your rights while casually taking them away - forever and a day.

These people are the enemies of liberty – treat them as such.

And remember you are free.

You have the right to be a bigot (but for how long?)

Our Attorney-General George Brandis once famously stated that in Australia “you have the right to be a bigot”. This was unsurprisingly followed by a wave of hyperventilating and bed wetting from the many opponents of the government – mostly those to my left, Mr Speaker.

What was surprising was that no-one in the legal profession backed the poor man up. No lawyers, no judges, police prosecutors or academics wanted to be seen defending the not so popular Attorney General nor those god-awful bigots. And as George was responding to a question from an aboriginal MP regarding the Racial Discrimination Act – no one wanted to be caught in the headlights on the wrong side of that rabbit proof fence either.

Subsequently George missed the opportunity to educate the public in a simple but pretty damn important legal issue, and the definition of the word bigot - a person who is intolerant towards those holding different opinions.

So I guess it's up to me – Mr Better late than Never.

In Australia we have no specific constitutional rights. Instead we have the British system known as the rule of law. Rights tell you what you can do, laws tell you what you can't.

You have only one thing that can be considered a right - the right to do whatever is not prohibited by law. As there is no law in Australia which makes it unlawful for you to be intolerant towards those holding different opinions – you have the right to be a bigot.

You also have the right to be a dickhead, a loudmouth, a bogan, a slut. You have the right to wear your undies on your head and dance like a duck. You have the right to be a humanist, a philanthropist, an Islamist or fascist. A heterophobe, a technophobe, a baritone or garden gnome.

You are free to be anything and do anything you want until some twit makes a law that prohibits it. You don't have to stand up for George or the government, you don't have to defend bigotry or any other common human behaviour, but if you understand where your freedom comes from you will know how to best defend it.

Remember you are free - and never mind the bollocks.