by Professor David Flint AM
National Observer Australia’s independent current affairs online journal No. 83 (June – August 2010).
To be free, and to enjoy that freedom, man must live in an ordered society. We cannot live in a state of anarchy or a state of nature where, as Hobbes famously put it, life would be “solitary, poor, nasty, brutish, and short”.
An ordered liberal society allows mankind to lead a full life. This was recognised eloquently by the Founding Fathers of the United States when, believing that their rights as Englishmen were being denied, they declared: “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
For longer than most people, Australians and New Zealanders have lived in a liberal society ordered by democratic institutions whose members are elected under universal suffrage. Most of us would like to see the people of every country enjoy those gifts. So would our governments.
This is true too of the United States. But the United States was the first dominant power to have seriously attempted to impose democratic institutions on foreign countries. On April 2, 1917, President Woodrow Wilson went before a joint session of Congress to seek a Declaration of War against Germany in order that the world be “made safe for democracy”. This sort of zeal to convert the world to democracy was more often a view held in liberal rather than conservative circles in the United States — by that I mean “liberal” as the Americans understand the term.
President George W. Bush was an exception. He also decided to make the world safe for democracy, something which had not previously been the ambition of conservative administrations. But no conservative administration had ever known anything like that attack on the territory of the United States known as 9/11.
In March 2003, Deputy Defense Secretary Paul Wolfowitz said that the anticipated incursion into Iraq “would be like wars that you’ve fought in, a war of liberation, a war to secure peace and freedom not only for ourselves, but for the Iraqi people who have suffered so long under one of the world’s most brutal tyrannies”. In 2005, President George W. Bush declared, “Across the generations, we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. All who live in tyranny and hopelessness can know the United States will not ignore your oppression, or excuse your oppressors. When you stand for liberty, we will stand with you.”
As Michael Kazin observes, there is nothing conservative about these statements. He says they would have distressed major thinkers on the right —from Edmund Burke at the end of the eighteenth century — who believed the sudden overthrow of authorities inexorably leads to anarchy and to long periods of war.
Unfortunately, neither President Wilson nor President Bush was successful in advancing his mission. Freedom cannot be achieved merely by importing a few institutions and decreeing ballot-box democracy. True democracy requires more than just the ballot-box and universal suffrage. These insignia of democracy have to be planted in a fertile field.
In the debate over the Bush Administration’s policy to impose democracy across the world, Fareed Zakaria advanced the argument that democracy works best in societies when it is preceded by “constitutional liberalism”. This is the sort of fertile ground in which democracy can succeed. Constitutional liberalism is a prerequisite essential to democracy and thus to freedom.
Before seeking to understand what the essentials of freedom are today, we need to examine the emergence of constitutional liberalism.
The emergence of constitutional liberalism
Australia and New Zealand were fortunate in that the ground was very well prepared for the surprisingly early introduction of democratic institutions and the equally surprisingly early introduction of universal suffrage, including female suffrage.
This was the result of the following factors:
First, the settlers brought with them the common law which assumes all are subject to the same law.
Second, they were societies based on sound civic virtue. They brought with them values more compatible with constitutional liberalism and democracy, that is Judaeo-Christian values.
Australia is the only continent not to have known slavery. This was because our founders, Governor Phillip and Lord Sydney, were guided by the Christian gospel in the same way as Wilberforce when he later came to campaign against and eventually overthrow the institution of slavery. “In a new country,” Philip said, “ there will be no slavery and hence no slaves.”
Third, they were both colonised by the British who, more than any other colonial power, voluntarily exported constitutional liberalism to their colonies, including the American colonies. This was because the principles of constitutional liberalism were more developed in Britain than in the other colonial powers, with the exception of the Dutch.
The result was the early introduction of the Westminster system into Australia and New Zealand; it would become one of the pillars of each nation. This process began in Australia before the Eureka Stockade, sometimes incorrectly presented as its cause. By the middle to late nineteenth century, all of the colonies were self-governing under the Westminster system, in a way in which the colonies of other powers were not.
It would be wrong to think of constitutional liberalism only in terms of those documents referred to as the Australian or New Zealand constitutions. The constitutional system is larger than is encompassed by them. As Bolingbroke said, the constitution is “that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good that compose the general system, according to which the community hath agreed to be governed”.
Our constitutional systems are to be found in that golden thread which goes back through the emergence of responsible government, the English Bill of Rights and the Act of Settlement, back to the Magna Carta. The Magna Carta is especially significant. It was, as Fareed Zarkaria says, the first written limitation on royal authority in Europe.
There are only a handful of countries which have a long uninterrupted experience of constitutional liberalism and, later, democracy with universal suffrage. They have certain common features which demonstrate to us, in a practical way, what is the essence of freedom.
With the exception of Switzerland, all of these can trace their systems to one particular event which was the most significant single advance in the provision of good government that the world has ever seen. This has produced not one but two models of governance which have provided, as Thomas Babington Macaulay put it, an “auspicious union of order and freedom”. They contain the essence of freedom.
This one event was the Glorious Revolution of 1688. Its benefits far exceed anything gained from any other single event, including the more celebrated French Revolution of 1789 and certainly the so-called Russian Revolution of October 1917 — which was more a coup d’état by the Bolsheviks.
It is important to stress that the great advantages of the Glorious Revolution were not the result of a political philosopher or a school of political philosophers sitting down and designing them. That was what directed the French and Bolshevik revolutions, near-crazed men designing schemes to save the world but which came close to ruining it. The style of the Anglo-Saxon in governance is more pragmatic; the style of the major continental powers has tended to be more theoretical.
The wisdom of the Anglo-Saxons has been in allowing institutions to evolve gradually over time and through trial and error. By way of contrast to continental thought, I would refer to the story of the French énarque who, when the benefits of something with which we are familiar were shown to him, said: “Yes, it may well work in practice, but does it work in theory?”
The centrepiece of the Glorious Revolution may be found in the Bill of Rights of 1689 which established the fundamental principles of government in what is the first version in England of a modern constitutional monarchy. Let us call this for convenience the Constitutional Monarchy Mark I.
In this model, only the king-in-parliament can legislate, the king thus having a power of veto. Unlike the present Westminster system, Constitutional Monarchy Mark II, the king also retains control of the executive government. The executive government is not yet responsible to the House of Commons. And this is the model on which the American Republic is based.
The Glorious Revolution was to have momentous consequences. David Landes says that the pre-eminence that Britain enjoyed in the Industrial Revolution resulted from the fact that the British people had “elbow room”. Far from perfect, by comparison with most communities across the Channel, the British were free and fortunate.
Britain, writes Landes, was soon a precociously modern industrial nation. He believes that the salient feature of a successful society is the ability to adapt to new things and ways. And one key area of change was the increasing freedom and security of the people. Yet, he says, the British still call themselves subjects of the Crown, while they have longer than anyone else been citizens. This was a “constitutional monarchy with limits on government, guaranteed rights, relatively benign religious toleration, and free market global capitalism”.
This, Michael Barone says, was a long step forward toward the kind of society we take for granted now. It was the “the backdrop for the amazing growth, prosperity, and military success of eighteenth and nineteenth century Britain — and for the American Revolution and the even more amazing growth, prosperity, and military success of the United States”. He adds:
“It changed England from a country in which representative government was threatened to one where it was ingrained, from a nation in which liberties were based on tradition to one in which they were based in part on positive law, from a nation where the place of religion was a matter of continued political dispute and even armed struggle to one where it was settled in a way that generally respected individual choice, from a nation that mostly kept apart from the wars of continental Europe to one that saw its duty as maintaining a balance of power there and around the world.”
What was achieved, a great governmental, military, financial and diplomatic revolution, was in many respects unintended. Its many benefits took some time to become apparent.
It would be wrong to assume that the Glorious Revolution introduced democracy to Britain, at least as we know it. Nor for that matter did the American Revolution, based as it was not only on taxation, but also in maintaining slavery and in overcoming native American Indian land rights.
In the meantime, the suffrage in England and Scotland was limited, with the aristocracy and the Sovereign enjoying special rights. But even as Sovereign, William never enjoyed the rights over other Britons which many of the American Founding Fathers had over those of their fellows whom they owned as their slaves.
It was this English and British example of representative government which inspired not only the Founding Fathers of the United States, but directly and indirectly the entire world. It was copied — with minor variations — in the British colonies, many of which would become major nations. This improbable revolution, Barone argues, did much to shape the world as we know it.
Walter Russell Mead writes that many of the values, ideas and attitudes which are thought to be part of “America’s unique exceptionalism” actually came from Great Britain. In particular, he says the ideas of the Glorious Revolution have left “a deep and abiding mark on political culture as well”. As only one example, he points out the Declaration of Independence itself was closely modelled on the Declaration of Right. The Glorious Revolution also guaranteed liberties.
And it was not just in the constitution and the law that the Glorious Revolution guided America. It was also in her institutions and even her foreign policy. The Glorious Revolution had given Britain financial institutions similar to those of the United Provinces, which allowed it to be more effective in government, war and trade than the richer France. This preponderance of sophisticated institutions was continued and developed in America.
No other colonies in other empires were given these free institutions, quite often because the imperial power did not practise them at home. The English-speaking world enjoyed a benefit in advance of others. According to Andrew Roberts, this is the reason why the English-speaking countries today account for more than one third of global GDP, despite their combined population being only 7.5 per cent of the world’s population.
The experience of generations living under a liberal constitutional system is reflected in the political judgement of the English-speaking world. It is not of course that the English-speaking people are more intelligent. It is that the electorate, accustomed as it is to a liberal constitutional system, becomes capable of sophisticated judgement and is suspicious of those who challenge the constitutional system. These electorates typically reject extremes at either end of the political spectrum. The electors can of course be misled, but they are less inclined than others to render heroic status to their leaders or to be swayed by adventurism.
Accordingly, it is no coincidence that communist and fascist parties never attracted any significant support in English-speaking countries, in contrast to the experience of many of the apparently sophisticated European continental countries. A result of having a liberal constitution is that the electorate becomes a guardian of that system.
The influence of the Glorious Revolution overseas is quite remarkable. For the past two decades the United Nations has, in its human development index (HDI), measured nations each year according to the life expectancy, wealth and education of their people. The form of government of all of the leading ten and the leading twenty nations in every year, with the exception of Switzerland, derives from those principles established long ago in the Glorious Revolution. In most cases the form of government is based on the subsequent evolution of that model in Britain after the American Revolution.
The Glorious Revolution even changed the essence of British and then American foreign policy. Mead observes that since the Glorious Revolution, the Anglo-Americans have been on the winning side in every major international conflict. This is not the time to ascertain whether this is the result of an inherently superior system.
To return to the debate over the Bush Administration’s policy to impose democracy across the world, Fareed Zakaria has most notably advanced the argument that democracy works best in societies when it is preceded by “constitutional liberalism”.
This is of course the essence of the British and American experience. Constitutional liberalism, with the people enjoying basic freedoms, including the protection of their property, stable limited government with adequate checks and balances, came before democracy.
This point was not fully appreciated in the occupation of Iraq. This is not to debate here the legality of the invasion, which can be argued to be a continuation of the war which began with the invasion of Kuwait.
The essence of freedom
The argument here is that only under constitutional liberalism can democracy flourish. But we cannot assume that once democracy has emerged, we can keep it without effort and without vigilance.
What then is the essence of freedom?
The following are ten principles of constitutional liberalism all or most of which should be in place for democracy to emerge. They must remain in place if democracy is to be maintained.
These are the principles relating to the separation of powers; good, stable and limited government; popular involvement; subsidiarity and, in appropriate cases, federalism; that certain key institutions must be above and beyond politics; civic virtue; private property; rights; and, finally, the sceptical principle.
1) The constitutional principle
The British have long been seen as offering the classical model for constitutional liberalism without having a so-called written constitution. Those who argue that Britain and New Zealand need a constitution which is in writing usually mean one which is contained in a document which is entrenched. By entrenchment they mean one which cannot be changed by ordinary legislation. Entrenching usually involves the requirement for some special majority in Parliament.
The more democratic version of entrenchment is where the people must approve a bill setting out the proposed changes to the constitution. In Australia this requires the approval to be given both nationally and in a majority of states. This involves a Swiss-style referendum where the changes are on the table before the people vote.
Australians distinguish such a referendum from a plebiscite, much favoured during the French Revolution and by the Emperors Napoleon I and Napoleon III. It has been used in recent years by devious British politicians, and called a referendum. Most of the British press have let this sleight of hand pass without comment. In this plebiscite, the people are only asked a question, often crafted by spin-doctors and with the details kept secret. If the question is answered favourably, or at times even unfavourably, the details are revealed and then enacted. A plebiscite is like signing blank cheque, and just as dangerous.
Not having an entrenched constitution worked in Britain for three centuries. There were effective checks and balances on the power of the House of Commons, and an understanding as to how politicians should behave. When the House of Lords refused to pass a budget in 1911, King Edward VII indicated he would create sufficient new peers but only after a second general election which demonstrated public support for the government’s position.
But the practice of ensuring there is widespread support for constitutional change is no longer respected in the political class. This is probably related to a general decline in civic virtue in such circles, evidenced by the scandal concerning the expenses of members of parliament revealed before the 2010 election. Thus, in 2003, Britain’s then Labour Prime Minister Tony Blair purported to abolish the ancient office of Lord Chancellor by a press release. The handing over of even more power to the European Union, without a promised referendum, is an egregious example. When the EU Constitution was rejected in referendums in the Netherlands and France in 2005, it was replaced by the Treaty of Lisbon which was designed to amend other treaties and was approved by the British Parliament without a referendum. It was also approved by all other European Parliaments without referendums, except in Ireland.
Apart from constitutional entrenchment, the decline in civic virtue in political circles and the increased power of the parties has led to a re-examination of the very concept of representative democracy which is fundamental under a Westminster constitution. In New Zealand a facility already exists for a citizens’ initiative which can result in a referendum. But, unlike Switzerland, the result is not binding on the legislators.
New Zealanders were astounded when their politicians ignored the result of a referendum, when a massive 88 per cent of voters indicated their support for the repeal of legislation making it an offence to smack children. The new Nationals government under John Key could not have more disillusioned many of its supporters.
Now the ACT New Zealand Party (successor to the Association of Consumers and Taxpayers) is campaigning to make the referendum process mandatory, as in Switzerland. Now the author Amy Brooke has launched the “100 Days, Claiming Back New Zealand” movement. This would introduce Swiss-style facultative referendums under which any legislation could be submitted to a vote by the people if a prescribed number of electors (in Switzerland 50,000 people or eight cantons) have within 100 days signed a petition calling for a binding referendum.
There is at the same time a move to give the voters in New South Wales the power to override their state’s fixed four-year parliamentary terms and force an early election.
These developments are healthy and will serve to emphasise that in a democracy the people should be sovereign.
2) The separation of powers principle
This can be traced back to the Glorious Revolution of 1688 which introduced the conditions essential for good, limited government.
This principle was fundamental to most of the world’s liberal constitutions which provide both good government with adequate checks and balances against the abuse of power. Those checks and balances comply with Lord Acton’s subsequent warning that “Power tends to corrupt, and absolute power corrupts absolutely.”
Curiously, the principle was incorporated in legislation relating to the succession to the Throne. After the death of Queen Mary II, and then the death of her sister Anne’s son, Prince William of Gloucester, King William III and Parliament believed that the law relating to the succession should be reformulated to ensure that the Crown did not return to the Jacobite line, the Catholic heirs of King James II.
Not only did the Act of Settlement, 1701 determine the succession; there was in it a provision which was to have a profound effect on governance in Britain, the US, the Commonwealth and indeed the world.
This is in the provision that the judges’ commissions be made quamdiu se bene gesserint, that is, “during good behaviour”. This means that judges were no longer to hold office “at pleasure”, that is, be dismissible by the government whenever it so wished. And of course a government may well wish to dismiss a judge who rules against them. After this, the judges could be removed only by an address of both Houses of Parliament.
This was of signal importance. It is the source of the doctrine of the separation of powers in England, the subject of detailed study by Montesquieu. He saw the separation of the three powers, the executive, the legislature and the judiciary as ensuring political liberty. The essential part of this is that the judicial power only be separate.
The separation of the judiciary had, he believed, to be real, and this was certainly the case in England. The dangers of judges holding office at pleasure can be seen in the use of acting judges. With the adoption of laws requiring that judges must retire by a specific age, there has been an increasing reliance in some Australian jurisdictions on commissioning recently retired judges as acting judges.
NSW judges must retire at 72, but can then be appointed as acting judges on a full- or part-time basis until the age of 77. Those acting judges had by early 2010 made up about a fifth of the judges on the Supreme and District courts. Rather than having untenured judges, it would be better if the retirement age were extended to 77 or, better still, removed altogether.
We now have an example of the danger of this practice. As a Land and Environment Court judge last year, David Lloyd embarrassed the government by ruling that the Minister for Planning, Frank Sartor, was biased when he approved Catherine Hill Bay and Gwandalan land developments by the Rose Group. The developer’s contribution to the state of 300 hectares of conservation land, in exchange for the minister’s sympathetic consideration of the developments, amounted to a land bribe, the judge ruled. Now the government has failed to appoint him as an acting judge, notwithstanding the recommendation of the NSW Chief Justice and the problems associated with the shortage of judges.
The principle of the separation of the judicial power and the consequent independence of the judiciary is under threat in two other and more significant ways. First, in some jurisdictions there has been a significant trespass by the judiciary into the legislative terrain, sometimes actually abetted by unwise legislators. Second, there is a tendency in some jurisdictions to establish specialist courts which function under different laws, some inimical to the pursuit of justice.
The first has become most evident in the United States. There the British model of the threefold separation of powers was carried to the American colonies and included in the Constitution of the United States. (It was only after American independence that the British model evolved into the Westminster system as we know it today, where the ministry must enjoy the confidence of the lower house, the House of Commons, thus ending much of the separation between the executive and legislative powers.)
In the second half of the twentieth century, the Supreme Court justices of the United States began to trespass more and more into the legislative arena. This is being imitated in other common law jurisdiction, assisted by constitutional or statutory bills of rights. This seriously undermines the separation of powers. Laws are being made by unelected officials without the possibility, or if possible the likelihood, of those laws being repealed by the legislators. I shall return to this later under the rights principle.
The second area of concern is the establishment of specialist courts. It is no exaggeration that they can sometimes reflect some of the aspects of the Star Chamber of old. There is an Australian example of this. It has been the subject of an adverse decision by a vigilant High Court.
Now it is clear that some of our politicians have a very feudal idea of the law. They think that it is quite proper to apply special, onerous laws to one class of people, in this case employers, large and small. Employers are of course those who make profits by taking risks and who give other people jobs.
Until this decision NSW employers were subject to an absolute duty of care to their employees. This was enforceable by a summary criminal procedure in an industrial court. There was even an attempt to exclude the supervisory jurisdiction of the Supreme Court and thus the High Court.
Another extraordinary feature of this draconian law was to give unions a good share of the substantial fines collected; another was to conduct a criminal trial as if we lived somewhere resembling more the old Soviet Union, rather than under our common law.
Note that the High Court has not terminated this machinery. It has however subjected it to the Constitution. The High Court case was Kirk v. Industrial Relations Commission handed down on February 3, 2010.
In this case, the NSW Industrial Relations Commission had found Graeme Kirk, a hobby farmer, guilty of failing to provide a safe workplace. This related to the case of his experienced part-time farm manager, Graham Palmer, who was killed while moving heavy steel using an all-terrain vehicle in 2001. Mr Kirk had no farming experience and took no part in running the farm due to ill health. While working on the farm, Mr Palmer had incorrectly loaded some steel onto a vehicle, and had then cut the corner of a road. The vehicle overturned and he was killed.
The High Court quashed fines totalling $121,000 and said that Mr Kirk had been “treated very unjustly and in a manner” causing “much harm” and that the prosecution was “absurd”. The High Court reminded the republican politicians that they cannot remove specialist tribunals from the supervision of the courts.
The jurisdiction of the High Court arises from section 73(ii) of the Constitution, which provides for appeals “from all judgments … of the Supreme Court … or of any other court … from which at the establishment of the Commonwealth an appeal lies to the Queen in Council”.
A defining characteristic of state supreme courts, the judges ruled, is the power to confine inferior courts and tribunals within the limits of their authority. The politicians can’t take this away, even to pay off their clients.
The Court also reminded them there are minimum standards which apply to a criminal trial. And to the credit of the High Court justices, they were unanimous, with Mr Justice Dyson Heydon wishing to go further in favour of Mr Kirk.
The decision is a warning to those who would set up Star Chamber-style jurisdictions parallel to the real courts. They clearly offend the separation of powers and the resulting independence of the courts which must in all fundamental respects be courts of justice.
3) The good government principle: stable and limited
Good government must be stable, for reasons which will be obvious, but it must also be limited.
If we disregard the idiosyncratic Swiss system, which is discussed later, there are two widely known models for stable and limited government. (Since 1958, a third hybrid semi-presidential system has emerged, the French Fifth Republic. Every so often its end is predicted when it falls into some crisis, as in the 2002 presidential election between Jacques Chirac and Jean-Marie Le Pen.)
The Westminster system of responsible government is the more modern and, in terms of its successful export beyond the seas, by far the most successful system of government across the world.
The older one is the American presidential system, based on the English constitution as it evolved under King William III and Queen Mary II from 1688 and also on the system of governance of the American colonies where the Governor, although sometime chosen locally, was appointed by the Crown and not responsible to the colonial assembly.
Paradoxically, it was the American War of Independence which was to see the beginnings of what we recognise as the Westminster system, where the government is responsible to the House of Commons. In March 1782, following the defeat of the British army at Yorktown, the House of Commons voted that they “can no longer repose confidence in the present ministers”. Lord North, who was Prime Minister, resigned.
This was the beginning of the constitutional convention which became firmly established in the middle of the nineteenth century, that a government must retain the confidence of the House of Commons.
This was the system which the British gave to their settled colonies and other states from the mid-nineteenth century.
Advantages of the Westminster system
The advantages of the Westminster system are that power is not concentrated in one person; it provides greater accountability and is more flexible and responsive to changing situations.
A good example of this arose as a result of the United States’ failed invasion of Cuba in 1961, the Bay of Pigs affair.
Within seventy-two hours all the invading troops had been killed, wounded or had surrendered. Richard Bissell, the head of the Directorate for Plans was called to a meeting with President John F. Kennedy about this. President Kennedy admitted that it was his fault that the operation had been a disaster. But the President added: “In a parliamentary government, I’d have to resign. But in this government I can’t, so you and Allen [Dulles, CIA Director] have to go.”
Another example of the advantages of Westminster is its continuing accountability to Parliament in financial matters. It is established in the Westminster system that a government must resign if it is denied supply by Parliament. This was one of the complaints against King James II, “levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament”. In other words, James was accused of raising taxes without parliamentary approval and ruling without supply.
This is forbidden both under the Westminster system and in the United States, but with different consequences. In the Westminster system, a government which cannot obtain supply must advise a general election or resign.
Thus on November 11, 1975, the Australian Governor-General, Sir John Kerr, withdrew the commission of the then Prime Minister E.G. Whitlam for trying to do this, to govern without a grant of supply.
In his reasons Sir John said:
“Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister.”
Soon after the dismissal of Gough Whitlam in 1975, the US Congress failed to grant supply to the Gerald Ford Administration. This led to the partial closure of diplomatic posts around the world, and the termination of various services. An American lady was filmed in Canberra for the news saying, “What we need in the US … what we need is a Governor-General.”
This occurred again in 1995 and 1996 with a partial shutdown of the United States federal government. When Congress failed to pass a budget bill, the Administration suspended all non-essential services from November 14 to 19, 1995, and from December 16, 1995, to January 6, 1996.
The advantage of Westminster can also be seen when it is generally agreed it is time for the head of government to go. This can happen speedily, sometimes within days. It is rare that a vote of no confidence is needed when the Prime Minister’s colleagues want him to go. This may be precipitate, as some would say of the forced departure of Britain’s Mrs Margaret Thatcher in 1990 and of Australia’s Mr Kevin Rudd in June 2010.
Contrast this flexibility with the impeachment of the US President (a procedure which comes from ancient England). An impeachment is a trial before the Senate where the action, the articles of impeachment, must be approved by the House. The impeachment cannot be founded on poor performance, or a lack of competence or other skills and qualities. Instead the House of Representatives must put the President on trial charged with “treason, bribery, or other high crimes and misdemeanours”. The trial must be before the Senate with the Chief Justice presiding, and, to be removed, two-thirds of the senators present must find him or her guilty.
This process leads, as we have seen, to a long paralysis in the government and the nation.
Not only should a government be stable, it should be limited. As David Landes said of the government of England after the Glorious Revolution, it should give the people “elbow room”. Experience has demonstrated the wisdom of Friedrich Hayek’s counsel that modern society is far too complex to have decisions made on our behalf by a government, however benevolent.
An excellent example was in 2009 when the Australian Government introduced a heavily-subsidised roof-insulation programme. This was undertaken both as a response to concerns about global warming and as a fiscal stimulus. It ended in deaths, fires, electrified roofs, fraud and general mismanagement, and was abandoned. It is a case study in what a government should not do. This conclusion is corroborated by the confessions of the then Prime Minister Mr Rudd who admitted to not properly estimating the complexity of what he had embarked upon. The unfortunate thing is he seemed to think he needed to do better, rather than acknowledge that installing roof batts was not a role for government. A similar story is emerging over the $16.2 billion Building the Education Revolution (BER), under which one commentator has said: “We get infrastructure worth about $7 billion and no one in government seems to know where the other $9-odd billion is going.” Then there is the $43 billion National Broadband Network (NBN).
As Hayek warned, we are mistaken if we believe that we can have the knowledge necessary to make such decisions. There is a view in Australia that if hospitals are placed under the control of the Federal Government, their management will be more efficient.
Earlier in what is referred to as the GFC, the global financial crisis, the Federal Government gave a guarantee covering most bank accounts. There did not seem to be any obvious need for this, unlike the situation in other countries. This was followed by a run on a number of sound finance and mortgage funds, with the result that tens of thousands of Australians, including the retired, still cannot access all of their funds.
There is hardly one stimulus programme in Australia which has not been surrounded by gross incompetence, and prodigious waste. Yet most of the media commentators will still say how well the government managed the global financial crisis. This was a crisis they did not foresee. Before the 2007 election, they even ridiculed the then Liberal Treasurer Peter Costello who had warned of the impending downturn. But because of the safe banking regulation John Howard and Peter Costello established, the soundness of the accounts, the government’s large budget surplus, and our trade with China, the crisis was to have a minimal effect on Australia.
Labor’s former Finance Minister, Lindsay Tanner defended the Rudd Government by saying: “Well the truth is if we’d sat around dotting ‘i’s and crossing ‘t’s forever then there wouldn’t have been any stimulus package.”
It seems the government is following the alleged advice of John Maynard Keynes that in situations like this the government should stimulate the economy by paying people to dig holes and fill them up.
Keynes did not say that. He merely said this would be better than doing nothing, but hardly sensible. He explained:
“‘To dig holes in the ground’, paid for out of savings, will increase, not only employment, but the real national dividend of useful goods and services. It is not reasonable, however, that a sensible community should be content to remain dependent on such fortuitous and often wasteful mitigations when once we understand the influences upon which effective demand depends.…
“If the Treasury were to fill old bottles with banknotes, bury them at suitable depths in disused coalmines which are then filled up to the surface with town rubbish, and leave it to private enterprise on well-tried principles of laissez-faire to dig the notes up again (the right to do so being obtained, of course, by tendering for leases of the note-bearing territory), there need be no more unemployment and, with the help of the repercussions, the real income of the community, and its capital wealth also, would probably become a good deal greater than it actually is. It would, indeed, be more sensible to build houses and the like; but if there are political and practical difficulties in the way of this, the above would be better than nothing.”
The result is that by mid-2010, Australia has had little to show from unprecedented wasteful profligacy, apart from the disappearance of the surplus and a massive debt to service and repay.
The core functions of a limited government — in a federation, the totality of the functions all our governments — are:
First, the defence of the realm, that is the protection of the borders. This raises a duty to ensure that those who enter the realm will not undermine it from within.
Second, to ensure the soundness of the currency, that is the general health of the economy.
Third, the provision of justice, to ensure law and order, that is to keep the Queen’s peace.
If governments do not attend to their core functions, why do they try to be involved in so much, in areas which really have little to do with government? We have prime ministers today who are concerned with obesity, reading to children, how to respond to the bullying of children and whether a sportsman should have posted a risqué photograph of his former girlfriend on the internet.
Just take one core function, the provision of justice. What is the situation in relation to the civil courts? It has been said that the courts of justice are open to all, rich and poor alike … just like the Ritz Hotel. The fact is, as former justice Michael Kirby indicated recently, litigation is, except for those in receipt of legal aid, priced far beyond the finances of anyone except the wealthiest.
The criminal justice system is equally deficient. It is not so many decades ago that to put grilles on your windows and to double-lock your doors would have been considered as indicative of some sort of paranoia. Now it is perfectly normal. The recent attacks on foreign students may in some ways reflect the decline of the elementary service government should provide, which is the freedom to walk about our streets without fear of attack, and that our homes indeed be protected from criminal incursions.
Margaret Cunneen SC is a senior crown prosecutor in New South Wales. She has appeared for the prosecution in a number of highly publicised cases brought against gang-rapists and paedophiles. In 2005, in the course of a public lecture, she asked whether public confidence in the courts was being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person. She was the subject of complaints by some prominent lawyers, and she failed to gain the status of Senior Counsel for some years.
There is of course something seriously wrong with our criminal justice system. The public sense this. But governments seem obsessed with weather-vane issues and jumping on the latest bandwagon.
4) Popular involvement principle.
It is obvious that in a democracy the people must remain involved. Now most democracies are representative democracies, which Western Australian writer Joseph Poprzeczny dismisses as mere “ballotocracies”. 
The alternative form of democracy is direct democracy, of which Switzerland is the classical example. There, the people can choose to play a significant, institutionalised role in the legislative process. They may both initiate constitutional change and they may veto legislation.
Elements of direct democracy may be found in representative democracies. For example, the Australian Constitution requires the direct approval of the people both federally and nationally to any constitutional amendment. On the other hand, the use of referendums which are not binding on the legislators is not direct democracy, merely popular consultation. (In Australia, a non-binding vote over the Australian Constitution is now referred to as a “plebiscite”, to distinguish it from a constitutionally-prescribed referendum.)
Non-binding referendums or plebiscites are typically resorted to over issues where the political parties are sometimes internally divided or reluctant to determine a policy, for example on daylight saving. Sometimes a show of superficial consultation is seen as helpful in legitimising a major decision, for example in joining a trading bloc, or devolution. In such cases, the politicians are often careful to submit a question designed to attract maximum support and to provide little or no detail of the bill to be subsequently introduced.
New Zealand has institutionalised community-initiated consultation through the Citizens-Initiated Referenda Act, 1993. This is still not direct democracy, as a referendum on these terms is not binding.
An example was the citizens-initiated referendum in reaction to “anti-smacking” legislation removing parental discipline as a defence to assault against children. New Zealanders were thereupon asked in 2009, “Should a smack as part of good parental correction be a criminal offence in New Zealand?” In a postal ballot closing on August 21, 2009, with 56.09 per cent of the electorate participating, 87.40 per cent voted No and 11.98 per cent with voted Yes, with 0.72 per cent votes declared informal.
The National, Labor and Green parties refused support for a private member’s bill introduced by ACT MP John Boscawen legalising smacking less than a week after the ballot. The Kiwi Party has now proposed a referendum to make referendums legally binding.
The question, “Should Parliament be required to pass legislation that implements the majority result of a citizens-initiated referendum where that result supports a law change?”, was approved by the Clerk of the House on December 17, 2009.
In the meantime, New Zealand writer and commentator Amy Brooke has launched what can be described as the “100 days Campaign” to introduce facultative referendums into New Zealand. Her paper, “100 Days — Claiming Back New Zealand”, has been posted on a new website. She summarises the reasons for the proposed measure thus:
“Essentially this provision ensures that, although parliament can pass any law, including those insufficiently debated, typically late at night, or on Christmas Eve — or through any profoundly undemocratic trade-off with a minor party manipulating the system… whatever law is passed actually can’t come into effect for 100 days. During this time, if 50,000 citizens are concerned enough to call for a referendum, it has to be put — what is called a facultative (optional) referendum — and the country’s verdict is binding.
“The different, citizens-initiated referenda, where proposals come from the people themselves, are a separate and interesting issue. But it is the facultative referenda that we most urgently need to put a stop to our now perceived lack of genuine representative democracy — so very well illustrated by the scandalous ignoring of the country’s wishes in parliament’s infliction of the anti-smacking legislation.”
Apart from the issue of direct democracy, the principle of popular involvement requires the legislature should be effective and should properly represent the people. There are three matters of concern here, unicameralism, electoral fraud and forced voting by MPs.
The only safe legislature is one consisting of two houses. The purpose of having an upper house of parliament is to ensure there is a review of all legislative proposals. Given there is no one universally agreed method of election, the upper house should provide representation in a way different from that in the lower house. It is desirable too that the voting system not reinforce the power of the political machines. An example is the appointment of MPs from lists produced by a central party machine.
An upper house is even more desirable under the Westminster system than under the presidential system because of the close identity between the lower house and the executive. It is also especially desirable in a unitary state where there is no division of powers between federal and state legislatures. These two considerations suggest that the restoration of a second house should be high on the agenda.
Elections must be as free from fraud as reasonably possible. Experience indicates that when politicians say measures must be introduced to make voting easier they are either misinformed or they are about to embark on some device designed to enable electoral fraud.
In the United Kingdom in 2005, an electoral commissioner Richard Mawrey QC, sitting as a High Court judge, found six Labour councillors guilty of electoral fraud in the 2004 Birmingham Council election. According to a report by Nick Britten and George Jones in the London Daily Telegraph on April 5, 2005, Mr Mawrey QC found that the councillors were responsible for a “massive, systematic and organised fraud” which was supported by the local Labour Party. He said the fraud was such that it would disgrace a banana republic. He subsequently made similar findings against Conservative councillors.
He attacked ministers who dismissed warnings about vote-rigging in the forthcoming UK general election as “scaremongering” and said the system that the then Prime Minister Tony Blair was encouraging the public to use was “hopelessly insecure”. “There are no systems to deal realistically with fraud and there never have been,” Mr Mawrey said. “Until there are, fraud will continue unabated”. He also warned against the trend to provide postal and other absentee voting on demand which he said could never be secure.
The other current issue is forced voting by MPs. Forced voting occurs when an MP does not cast a bona fide vote, but is forced to vote in a particular way under a threat of losing some real advantage. The proper principle under which a member of parliament votes was set out long ago by Edmund Burke when he said: “Your representative owes you, not his industry only, but judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
Burke is correct. This is a representative democracy. The degree to which focus groups and opinion polls determine policy clearly offends against this principle.
What then of the requirement to make a pledge, such as that of a Labor candidate in Australia, to vote on all questions, and especially those affecting the fate of a government, “as a majority of the Labour Party may decide at a duly constituted Caucus meeting”? This must limit the judgement or discretion which the constitutional system vests in a member of parliament. The caucus pledge is against the spirit of a representative democracy; only a court could determine whether it offends the letter of the Constitution.
5) The subsidiarity and federalist principles
For reasons of history and because Australia has such a large land mass, the federalist principle is essential to freedom in Australia. Federalism is part and parcel of the subsidiarity principle, that matters ought to be handled by the smallest, lowest or least centralised competent authority. The corollary is that the central government in a unitary state and the federal government in a federation should only perform those tasks which cannot be performed at a lower level. It also applies to states in a federation. For example, rather than trying to manage public hospitals themselves or through area authorities, why not allow the local community through a board and superintendent and matron to run them?
It is regrettable and perhaps predictable that federalism has few adherents among the Australian political class. Because it is under challenge and has been undermined it is pertinent to concentrate on this.
It is sometimes forgotten that the federation of the Australian states was a remarkable achievement:
“Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.… The Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity….”
The Constitution Act describes it well, reciting that the people of the several states, “humbly relying on the blessing of Almighty God” had “agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution” thereby established.
Professor Walker observes that for “a framework of government that has created a new nation and given it external security, internal peace, stability, progress and prosperity throughout the most violent, turbulent century in human history”, our constitution has been subjected to an “inordinate” amount of negative comment. He says the chief obstacle to a balanced appraisal today is the failure of the critics to consider the advantages of federalism. He lists ten of them: the right of the citizen of choice and exit, the possibility of experiment, the accommodation of regional preferences and diversity, participation in government and the countering of elitism, the better protection of liberty, the closer supervision of government, stability, fail-safe design, competition and efficiency, and the resulting competitive edge for the nation.
The point is that the intention of the founders, and, most importantly, of the people, was very clear. Had the centralist politicians and the judges kept more to that intention, many if not most of the problems of overlap, of centralisation and of financial irresponsibility by the states would probably have been avoided. That intention was surely that the external affairs and spending powers of the federal government and parliament be limited to the list of powers which the people agreed should be of federal concern, and that the states should be principally dependent on taxes they raised themselves. The intention was not that the states be reduced to their present mendicant status, but that they should continue as they originally were: self-governing communities now united in a federation where the federal entity had limited enumerated powers.
The problem today is not so much in the constitution; it is in those who have effectively changed it without seeking the approval of the people, and in the knowledge, it should be noted, that the people would have been most unlikely to agree. The answer is certainly not in the dissolution of the states, in the substitution of regions even more dependent on the Commonwealth, in the transfer of even more powers to the Commonwealth, in a vast increase in the power of the judges to govern us through a bill of rights, or in the grafting of some unspecified republic onto our constitution.
Professor Walker writes that the debate has hitherto focused exclusively on its disadvantages. More recently, there has been an increasing acceptance of the advantages of federalism. Those advantages were noted in the Business Council of Australia (BCA) report. They were stressed in a major report in 2007 by Dr Anne Twomey and Professor Glenn Withers to the newly formed Council for the Australian Federation (CFAF), which brings together all of the Australian governments with the exception of the federal government. They argue that by focusing too much on the problems in the operation of the federal system, we forget about the benefits of federation, including checks on power, choice and diversity, customisation of policies, competition (although they do not mention it, unilateral action by the Queensland Government led to the abolition of that inequitable tax, death duties, in all states and at the federal level), creativity and co-operation.
The CFAF report drew attention to widespread media coverage of the BCA report which suggested that the cost of inefficiencies in the federal system, or perhaps the federal system itself, cost $9 billion for 2004-2005, or $450 per Australian, a conclusion which was highly qualified in the report itself. The authors of the CFAF report preferred to measure the benefits of federation from a comparative OECD study which found that, for the last half century, federations had a 15.1 per cent advantage over unitary states. In addition they measured the benefit of fiscal decentralisation, which ranges between an average of 6.79 per cent, to “federal best-practice”, exemplified by Canada, Germany and Switzerland, of 9.72 per cent.
Australia, they conclude, is the most fiscally centralised of the OECD federations, demonstrated by the fact that the states and territories raise only 19 per cent of taxes but are responsible for 40 per cent of public spending. As long ago as at the time of the creation of the United States, it had been realised that such vertical fiscal imbalance is inimical to good government. As a principle, governments should be responsible to the people who elect them for the money they spend. The CFAF report argues that the benefit to Australia from being a federation is already 10 per cent; and that this could be raised significantly by further decentralising our taxation system. The result would be to raise average incomes by $4,188 per annum.
Every so often an Australian public figure will say what a good thing it would be if Australia and New Zealand were one country. If New Zealand were so minded, she would be most unwise to become one or even two states under Australia’s present unsatisfactory arrangements. Even if the sovereignty of the states were restored, which would require a Thatcherite revolution, it is difficult to see how New Zealand’s interests would be preserved. Even a monetary union is suspect; there is no doubt that where our interests deviated, the New Zealand interest would come second, whatever soothing words and compensation were offered.
6) The principle that certain key institutions must be above and beyond politics
Under a liberal constitution it is accepted that there is a proper place for the conduct of party politics. This is in the legislature and in the formation of the executive government.
At the same time, certain important, indeed crucial, organs must remain above and beyond politics. These are the armed forces, the judiciary, the police, the public or civil service, and the Crown. This also extends to an institution in the public sphere which, with the exception of public broadcasting, is not part of the state, the media.
This concept of a large sphere outside of the political arena is most highly developed under the Westminster system, where the Crown plays a central role.
The proponents of both the Westminster and presidential systems agree that the armed forces should be above politics. This principle is manifested in the proscriptions against both the maintenance of a standing army without parliamentary approval and the quartering of troops. In addition, in the United States, citizens have the right to bear arms. Under the Westminster system, supreme command is vested in the sovereign or the governor-general, thus emphasising the non-political role of this office. It is worth noting that the Westminster system has been more successful, at least until recently, in keeping the high command out of the political arena.
Another institution which ought to be beyond politics is the judiciary, which creates the corresponding requirement that the judiciary not participate in politics and the courts not enter into the legislative arena. Again, the Westminster system has been more successful in this. We do find that in some places under the presidential system that the judges are elected or subject to processes which are or have become political, including judicial confirmation. This has been exacerbated by the judges moving into areas previously regarded as the preserve of the legislators.
Another non-political area, at least in the Westminster system, has been the public or civil service. The emergence of a non-partisan public or civil service coincided with the withdrawal of the Crown from political activity and the emergence of the constitutional monarchy as we know it. Walter Bagehot advised the Canadians in 1867 that not only was a non-partisan public service absent in the US, he believed it was impossible. The contrast between the public services of the countries of the Commonwealth and the states of the US remains, even if in Australia in recent years there has been some regrettable weakening of this principle in regard to the higher echelons of the public service.
If the 2009 Australian OzCar (or “Ute-gate”) affair demonstrated anything, it was that the ideal should remain that of an independent public service. A constitutional monarchy is a fertile field for this because it is designed to allow an easy transfer of political power, the prime minister being untenured and at all times dependent on the confidence of the lower house.
Our great wartime Labor Prime Minister John Curtin accepted this. When, as leader of the Opposition, he was offered confidential material by a delinquent public servant, he said: “No matter has given me so much concern, as it affects the public administration and the loyalty of persons in the service of the Crown, and I had to choose what my highest duty to my country was.” According to his biographer Lloyd Ross, he showed the documents to the then Prime Minister Robert G. Menzies and Treasurer Arthur Fadden at the earliest opportunity.
In the Westminster realms, the Crown remains the central institution providing leadership beyond the political arena. As Viscount James Bryce is reputed to have said, it is not so much the power the Crown wields, but the power it denies to anyone else, which is important. This means that the politicians are required to justify proposals and, in the area of the reserve powers, must accept decisions made by the viceroy in his or her discretion.
In addition, the other institutions outside of the political arena, the judiciary, armed forces, police and public service, do not in the Westminster system owe their allegiance to the politicians, even if chosen through the political process. They owe their allegiance to the Crown which is a trustee for the people. They, as well as the politicians, owe allegiance to the Crown. This is reinforced by their swearing an oath of allegiance.
The making of an oath, such as an oath to tell the truth, the whole truth and nothing but the truth in a court, or an oath of allegiance, should not of course be made lightly. Respect for an oath is integral to that civic virtue which must prevail in a civilised society, apart from any consideration of the effect of a breach on the eternal soul of the delinquent.
It is an indication of the decline in standards in public life that some republican politicians so easily breach their oaths. An egregious example was the decision of the New South Wales republican politicians to abolish the oath they had themselves sworn just before a visit by the Queen.
The republican politicians plan to remove the Crown, but the 1999 proposal to do so in Australia indicates they are not motivated by a desire to improve the governance of the country. Australia’s republicans were given a carte blanche in the 1999 referendum to devise their own republic. They provided that the prime minister could dismiss the president without notice, without reason and without appeal. The “No” campaign warned that this would be the only republic in the world where it would be easier for the prime minister to sack the president than his cook. Professor George Williams, now one of the leading republicans, last year admitted: “The 1999 model contained a flawed mechanism for the dismissal of the president.”
No one who seriously thought about good governance and accountability would have proposed this. One leading independent republican politician, well known for his honesty, believes that the 1999 proposal was intended to increase the power of the political class.
There is another institution which must remain above and beyond politics and which lies mainly outside of the state — that is, the fourth estate. As this name indicates, the institution is separate from the other estates in the Parliament and is crucial to the maintenance of our freedom. We do not live in a small city-state; we need to be informed. That this institution must be free is essential.
This concept went from Britain to America. The First Amendment to the U.S. Constitution is no more than a statement of the position that the fourth estate enjoyed in England and in America where it was intended only as a restraint on the new federal polity: “Congress shall make no law … abridging the freedom of speech, or of the press.”
Although indulgent, U.S. Supreme Court Justice Hugo Black in 1971 described the role of the press well in New York Times Co. v. United States:
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
This freedom of course gives rise to a duty to be responsible. Unfortunately some in the media too readily forget their duty. But the reason why the media are accorded considerable freedom is because of the duty so well described by the London Times in 1851: “The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation.”
Associated with this is a duty to make the reporting of the news clearly distinguishable from comment. As the great editor of the Manchester Guardian C.P. Scott declared: “Comment is free, but facts are sacred.” The media are of course entirely free to editorialise, the exception being of course public broadcasters such as the BBC. It is refreshing then that the chairman of the ABC recently warned, with particular reference to reporting anthropogenic global warming: “We must ensure that our town square is not a monologue.”
Today we see and read too much news which falls into the category of campaign journalism. Too often, rather than reporting, the media wish to be players in the political game.
What does this mean today? The leading Australian Fairfax and ABC journalist David Marr once famously declared that the natural culture of journalism is “a kind of vaguely soft-left inquiry sceptical of authority. I mean, that’s just the world out of which journalists come. If they don’t come out of that world, they really can’t be reporters.” Indeed, he said that any journalists not of this culture should leave the profession. “I mean, if you’re not sceptical of authority, find another job. You know, just find another job.”
He was absolutely right to say a journalist must be a sceptic — how else can you find the truth? But to say he can come from only one end of the political spectrum is wrong. It leads to issues such as that of Fairfax when it promoted rather than reported Earth Hour, when supporters were to turn off their lights for one hour to reduce their carbon footprint. That is when Sydney’s Sun-Herald newspaper published photos of Sydney before and during Earth Hour. However, they were not taken on the same day. That is the consequence when the news columns are biased.
There is a particular danger that the gallery may be too close to government or to a particular party. The press should maintain a distance from those exercising power. As the British editor and political commentator, Baron Sydney Jacobson, once informed the House of Lords: “My Lords, relations between Government and the press have deteriorated, they are deteriorating, and they may deteriorate even more. And on no account, on no account must they be allowed to improve.”
7) The civic virtue principle
If democracy is to grow and to hold, the ground has to be fertile. The people have to be receptive, having a clear commitment to the performance of their duties as much as of their rights. Their duties include those to their fellow citizens and, through the Crown, their clear duties to the nation. This requires a society to share the same values, that there be a commonality between all people. Ours come from Judaeo-Christian values. This does not mean that belonging to a particular religious denomination is a prerequisite for citizenship. It is the values, not the doctrines, which are mandatory. (Of course, many ecclesiastics will argue that the values cannot exist without religion.)
The principal civic virtues include active involvement in civil society, that is in philanthropy and pursuits aimed at the public good, in restraint, in being honest and trustworthy, and in observing the principle of reciprocity. These are typically associated with republican government, and contrasted with monarchical government where the virtue of the monarch encourages obedience. But in constitutional monarchies, or crowned republics, both the citizen and the sovereign are expected to exhibit these virtues.
If we do not have a common view of what the essence of being a citizen is and of what our duties and responsibilities to one another and to the nation are, we will of course weaken our society and endanger eventually our democracy.
One of the core functions of government, the defence of the realm, is the protection of the borders. There is an important duty on a government to ensure that only those who will contribute to the civic virtue of the nation will be admitted not only to citizenship, but also to residence. If, instead, entry or continued residence is allowed for the purposes of calculated electoral gain, which has been alleged in Australia, then the government is failing in the performance of this core duty.
8) The private property principle
That a liberal constitution requires that government be limited is something which socialists have never appreciated. Because much of Western political philosophy in the nineteenth and twentieth centuries was dominated by socialist thought (and still is under the guise of, for example, militant environmentalism), this means that little attention has been given to a feature absolutely essential to any society which is governed under a liberal constitution. This is that the right to private property be protected under the law.
Indeed, Hernando de Soto has demonstrated that the protection of property rights in a formal property system, and one with adequate records, is crucial to economic development, and indeed, that its absence in many third world countries explains many of their barriers to development.
The Australian Constitution gives the Federal Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to the acquisition of property on just terms. We have seen in Australia the adoption of an inter-government scheme to satisfy Kyoto Treaty carbon-reduction targets. Funded by the federal government, the states have effectively made land useless to farmers. This is expropriation and, as we have seen, expropriation not on just terms. This is in many ways the thin end of the wedge, a growing predilection for governments to interfere with property rights which offends the private property principle.
9) Rights principle
Until the latter part of the twentieth century, the prevailing view in the Commonwealth was that the best guarantee of human rights was through the common law and the system of responsible government.
The American Bill of Rights remained what it was intended to be, a restraint on the powers of Congress to make laws. It was only in the latter part of the twentieth century that a judicial coup d’état took place and the judges invaded the legislative patch.
But apart from it not being the constitutional intention, legislation by judges, especially legislation effectively amending the constitution, offends the democratic principle. The judges have no mandate, they are not answerable to the people, and their legislation can only be repealed by the judges.
The results have not been good. The judges’ incursions into freedom of speech have effectively given a green light to the most offensive defamation imaginable. The judges’ refusal to accept that the First Amendment was directed to the protection of political speech led them to unleash a torrent of obscene speech (that is speech in the broadest sense) across the United States and therefore the world. In a campaign unjustified by the constitution, the judges have used the proscription against there being a federal established church as a pretext to drive religion from the public square and from the schools. And then the judges have used separate rights to construct a constitutional right to privacy — a constitutional right unknown to the Founding Fathers. Peering into the penumbrae — the shadows of the Constitution — they have extracted a constitutional right to privacy for women, a right to abortion. By doing that they relieved the often grateful state politicians from doing their duty — that is, to legislate or not in this area.
There is a place for limited specific rights in an entrenched constitution; there is no place for broad generalisations which endow the judges with the discretion to legislate. It is proper to make the power to expropriate conditional on any expropriation being on just terms. A list of broad political rights, and worse, of economic or social rights, places governance in the hands of an unelected elite.
It is argued in Britain, New Zealand and Australia that statutory bills of rights can avoid the excesses of the constitutionally entrenched bill of rights. But, as Professor James Allan warns, “What is happening in Britain is tantamount to having a full-scale US-style or Canadian-style constitutionalised bill of rights.”
10) The sceptical principle
It is essential that in a democracy, all manner of propositions be subjected to rigorous testing. Unlike dictatorships and primitive societies, a modern liberal democratic society allows the citizenry the privileges of scepticism and opposition.
In the law, in journalism, in trials, in science and in the formulation of public policy, any argument presented has to be subjected to examination. Indeed, without the right, and on occasions the duty, to be sceptical, we could not long remain a democracy under a liberal constitution. We would become the sort of society which insisted that the line handed down from above be instantly received and adopted — Stalinist Russia and Hitler’s Germany, being extreme examples.
It is difficult to see how certain professions can be carried on if the practitioners do not employ a healthy degree of scepticism in the exercise of their functions. Among such professions are science, the judiciary and journalism.
Scepticism is not a failing, but a badge of honour. There is currently a theory that we are going through a period of dangerous global warming that is anthropogenic and driven primarily by carbon dioxide emissions linked to the use of fossil fuels. This, is it said, requires policies and laws to drastically reduce those emissions.
Paul Monk rightly says that we need to hear the most rigorous challenges to those conclusions. That is because this is the best way known to man to test their accuracy. He declares that this is something fundamental to scientific method, to the practice of liberal politics and the achievement of sound public policy.
One of the most sinister observations by the political class, more suited to Stalin’s fraudulent biologist Trofim Lysenko, is that, with respect to anthropogenic global warming, “The science is settled.” Those are words more appropriate to a tyrant than to a minister in a democratic government, or worse, a journalist.
Another formulation which is certainly not sinister but which must be challenged is one I recall most from editorials in The Australian. This is: “We must give the planet the benefit of the doubt.” That is too easy an approach to what former PM Kevin Rudd identified as evidenced-based public policy. The prescriptions of the anthropogenic global warming lobby have been for the burdening to an extraordinary level of our economies, even unilaterally. Their assertions must be tested.
Our duty is not to relax the application of the sceptical principle merely out of a fear that the global warming lobby may be right. Our duty is to intensify the rigour of this process. And when we see the extent of the dissimulation, obfuscation, illegal activity, apparent deliberate misrepresentation, use of fear, exaggeration and other examples of impropriety, we can see why they fear the sceptical principle. However, it is a principle which must universally apply in science, journalism, the law and public policy.
David Flint AM is a former law professor at the University of Technology, Sydney, and a former chairman of the Australian Press Council and Australian Broadcasting Authority. He is national convener of Australians for Constitutional Monarchy (at www.norepublic.com.au). He is also author of Twilight of the Elites (2003) and Malice in Media Land (2005) and has contributed an essay, “Monarchy or republic?”, to The Howard Era (2009), a volume of essays edited by Keith Windschuttle, David Martin Jones and Ray Evans. The above article is based on a speech Professor Flint delivered at the Summer Sounds Symposium at Nelson, New Zealand, on March 19, 2010.
 Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common-Wealth Ecclesiasticall and Civill  (Harmondsworth, UK: Penguin, 1979), Part 1, chap. 3, p.186.
 The Declaration of Independence: July 4, 1776: The unanimous declaration of the thirteen states of the United States of America.
 Cited in Michael Kazin, “What lies beneath: Bush and the liberal idealists”, World Affairs (American Peace Society, Washington DC), Winter 2008. URL: www.worldaffairsjournal.org/articles/2008-Winter/full-liberal-idealists.html
 Kazin, op. cit.
 Kazin, op. cit.
 Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W. & W. Norton, 2004).
 Commonwealth of Australia Constitution Act, 1900 (Imp); Constitution Act, 1986 (NZ).
 Viscount Bolingbroke, On Parties , p.108.
 Zakaria, op. cit., p.38.
 Thomas Babington Macaulay, History of England, 4 vols [1848-59] (London: Heron Books, 1967), Vol. 1, p.1.
 David Flint “Three and twenty years of freedom,” Quadrant (Australia), November 2008, Vol. 52, No. 11, pp.40-47.
 An énarque is a student or graduate of the L’École nationale d’administration (ENA), one of the most prestigious of the French “grandes écoles” from which come the nation’s leading civil servants.
 David S. Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (New York: W.W. Norton, 1998).
 Michael Barone, Our First Revolution: The Remarkable British Upheaval That Inspired America’s Founding Fathers (New York: Crown Forum, 2007), p.225.
 Barone, op. cit., p.8.
 Barone, op. cit., p.229.
 Barone, op. cit., p.225.
 Barone, loc. cit.
 Walter Russell Mead, God and Gold: Britain, America, and the Making of the Modern World (New York: Alfred A. Knopf, 2007), p.47.
 Andrew Roberts, A History of the English-Speaking Peoples Since 1900 (New York: HarperCollins, 2007), p.637.
 Human Development Report 2007/2008, United Nations Development Programme (UNDP). URL: http://hdr.undp.org/en/media/HDR_20072008_Summary_English.pdf
 Mead, op. cit., p.5.
 Zakaria, op. cit.
 Simon Heffer, Power and Place: The Political Consequences of King Edward VII (London: Weidenfeld and Nicolson, 1998), p.286.
 “NZ parents vote to smack their kids”, ABC News (Australia), August 24, 2009. URL: www.abc.net.au/news/stories/2009/08/24/2665254.htm
 “Total recall for NSW Parliament: Opposition”, ABC News (Australia), March 13, 2009. URL: www.abc.net.au/news/stories/2009/03/13/2515029.htm
 Lord Acton’s letter arguing against the promulgation of the doctrine of Papal infallibility sent to Bishop Mandell Creighton in April 1887.
 (12 & 13 Wm 3 c.2).
 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws , translated by Thomas Nugent, revised by J.V. Prichard. Based on an public domain edition published in 1914 by G. Bell & Sons, Ltd., London. Rendered into HTML and text by Jon Roland of the Constitution Society. URL: www.constitution.org/cm/sol.htm
 Joel Gibson “Judge rejection ‘threatens’ court independence”, Sydney Morning Herald, March 8, 2010. URL: www.smh.com.au/nsw/judge-rejection-threatens-court-independence-20100307-pqm0.html
 This is the executive council system: James Bryce, Modern Democracies, 2 vols (London: Macmillan, 1921), Vol. 2, p.508 et seq. The unusual feature is that alongside the bicameral legislature and executive council, the people are a separate legislative authority through the referendum and initiative.
I have read this as “If this were the UK, you as the civil servant would continue and I would resign. But it’s not.” “In the United States, I continue and you resign”; but I cannot located the original source. URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=1641&Itemid=4
 Sir John Kerr’s Statement of Reasons. Following his dismissal of Gough Whitlam on November 11, 1975, the Governor-General released this document outlining his reasons. URL: http://whitlamdismissal.com/documents/kerr-statement.shtml
 Australian Constitution, Article II, Section 4.
 Landes, op. cit.
 Friedrich A. Hayek, The Road to Serfdom  (London: Routledge & Kegan Paul, 1976).
 Ray Hadley, “Education revolution has become a rort”, The Australian, April 1, 2010. URL: www.theaustralian.com.au/news/opinion/education-revolution-has-become-a-rort/story-e6frg6zo-1225848217965
 J.M. Keynes, The General Theory of Employment, Interest, and Money , chapters 16 and 10, quoted in Stephen Wildstrom, “Stimulus and holes: what Keynes really said”, Business Week, February 3, 2009. URL: www.businessweek.com/blogs/money_politics/archives/2009/02/stimulus_keynes.html
 Margaret Cunneen’s lecture, “Living within the law”, Sydney Morning Herald, September 24, 2005. URL: www.smh.com.au/news/national/margaret-cunneens-lecture/2005/09/23/1126982234942.html
Geoffrey de Q. Walker, Initiative and Referendum: The People’s Law (Sydney: Centre for Independent Studies, 1987).
Geoffrey de Q. Walker, “Direct democracy and citizen law-making”, Proceedings of the Samuel Griffith Society (Brisbane), vol.4, 1994, ch.9, pp. 281-304. URL: http://samuelgriffith.org.au/docs/vol4/v4chap9.pdf
 Australian Constitution, section 128.
 “Judge lambasts postal ballot rules as Labour 6 convicted of poll fraud”, The Telegraph (UK), April 5, 2005. URL: www.telegraph.co.uk/news/uknews/1487144/Judge-lambasts-postal-ballot-rules-as-Labour-6-convicted-of-poll-fraud.html
 Edmund Burke, Speech to the electors of Bristol, November 3, 1774.
 Graham Freudenberg, Cause for Power: The Official History of the New South Wales Branch of the Labor Party (Sydney: Pluto Press, 1991), p.40.
 John Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angust & Robertson, 1901), p.225.
 Geoffrey de Q. Walker, “Ten advantages of a federal constitution”, Proceedings of the Tenth Conference of the Samuel Griffith Society (Brisbane), August 7-9, 1998, vol. 10, chapter 11. URL: www.samuelgriffith.org.au/papers/html/volume10/v10chap11.htm
See also Greg Craven, “Federalism and the states of reality”, Policy (Centre for Independent Studies, Sydney), vol. 21, no. 2 (Winter 2005), pp.3-9. URL: www.cis.org.au/images/stories/2005-21-2-greg-craven.pdf
 Reshaping Australia’s Federation: A New Contract for Federal-State Relations (Business Council of Australia, Melbourne), October 28, 2006.
 Anne Twomey and Glenn Withers, Federalist Paper I: Australia’s Federal Future, a report for the Council for the Australian Federation (CFAF), April 2007. URL: www.caf.gov.au/Documents/AustraliasFederalFuture.pdf
 Laurie Oakes, “Time to quit shonky politics, Mal”, Daily Telegraph (Sydney), August 8, 2009. URL: www.dailytelegraph.com.au/news/opinion/time-to-quit-shonky-politics-mal/story-e6frezz0-1225759113617
 David Flint, “Power grab in NSW”, Australians for Constitutional Monarchy, March 15, 2006. URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=548&Itemid=4
 George Williams, “Four rules for reform”, On Line Opinion, October 3, 2008. URL: www.onlineopinion.com.au/view.asp?article=7974&page=0
 David Flint, “Republican minister’s blistering attack … on republicans”, Australians for Constitutional Monarchy, March 29, 2010. URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=2363&Itemid=4
 New York Times Co. v. United States, 403 U.S. 713 .
 “Maurice Newman’s address to ABC staff”, The Australian, March 11, 2010. URL: www.theaustralian.com.au/business/media/maurice-newman-speech/story-e6frg996-1225839427099
 David Marr on the ABC Radio National Big Ideas program, September 26, 2004.
 ABC TV, Media Watch, Episode 7, 2007. URL: www.abc.net.au/mediawatch/transcripts/s1892855.htm
 Australians for Constitutional Monarchy, “A formal citizenship test?”, November 30, 2006. URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=869&Itemid=24
 Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000).
 Spencer v. Commonwealth of Australia  HCATrans 55 (March 12, 2010}, cited in David Flint, “Without compensation: Governments take properties”, Australians for Constitutional Monarchy, April 1, 2010. URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=2367&Itemid=4
 James Allan, “Charter lobby turns desperate”, The Australian, March 12, 2010.
 Paul Monk, “The Open Society and its Friends”, Quadrant (Australia), vol. 54, no. 3, March 2010. URL: www.quadrant.org.au/magazine/issue/2010/3/the-open-society-and-its-friends