As Peter Costello tries to hose down his incendiary assault on free speech through tying tax relief for charities to their willingness to drop or downgrade public advocacy for the underprivileged and the powerless, perhaps he’ll take time to reflect on what he used to believe in.
Back in 1992 Costello, then shadow Attorney-General, led a vigorous campaign on free speech grounds against the Labor government’s law banning political advertising on television and radio. In the end, the High Court threw out the laws after finding that the Australian Constitution guaranteed citizens the right to free speech on political matters.
When I interviewed Costello on the ramifications of the High Court’s finding, he called on Labor to establish a parliamentary rights and freedoms committee to ensure that legislation contrary to human rights did not become law. He said the Courts should not be forced to protect our rights and freedoms, and had done so because Parliament had failed in its duty to do so. (See article republished below)
The High Court was activist in those days, and has since retreated from protecting citizens rights by constitutional implication as the Howard government began stacking the Court with legal conservatives.
At the time, Justice Toohey said there were virtually no parliamentary checks on “arbitrary government”, and that the judiciary would limit abuse of power by implying constitutional protections of “core liberal-democratic values”.
Then Chief Justice, Sir Anthony Mason, said that “human rights are seen as the countervailing force to the exercise of totalitarian, bureaucratic and institutional power, widely identified as the greatest threats to the liberty of the individual and democratic freedom in this century”.
As it happened, Labor did not set up a parliamentary human rights and freedoms committee. Since gaining government John Howard has often tried to curb our democratic rights and freedoms and disowned several human rights treaties Australia had committed to complying with.
Peter Costello’s Charities Act in its present form is the greatest threat to free speech in Australia since John Howard tried to define political protests and union pickets as “terrorist acts” last year. It took a backbench revolt to change his mind (see Crisis of conscience).
Costello claims the charity furore is all a mistake, and that he merely intended to codify existing judge-made law on charities. His office assured charities today that no current charity would lose its status under the new law.
It’s hard to credit that Costello would seriously peddle that line. As a lawyer he knows about “the rule of law”, the cornerstone of functioning democracies. It decrees that political leaders don’t have power over us because they want it or have police to enforce their will, but because the law delivers it to them. The law is what it says it is. Governments pass laws, and Courts apply them. To pass a law saying one thing with the assurance that it is not intended to mean what it says or that the government would never enforce the law as it is written is meaningless spin.
Costello’s plan would give the Australian Tax Office the power to close down participation by charities in political debate. Early on in government, Howard asked charities in receipt of government funds to promise not to speak out against or challenge government policy. The implied threat, of course, is that if they did they’d be defunded. Since then, Howard began coopting charities into doing traditional government work like job support services, and the big money they’re getting gives him more power to shut them up.
But Costello’s plan goes much further. Even a charity which gets nothing from government is at risk of losing its tax free status or the tax deductibility of its donations.
If Costello is fair dinkum that it’s all a misunderstanding he should fix the drafting pronto. A good start would be to put down in black and white his pledge that no registered charity is at any risk of losing its charitable status unde his proposed new law.
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Parliament must reclaim role on rights – Costello
by Margo Kingston
The Age, 7-10-1992
The Federal Opposition last night urged the Government to establish a parliamentary rights and freedoms committee to ensure that legislation contrary to human rights did not become law.
The shadow attorney-general, Mr Costello, who will ask shadow cabinet to consider making the plan party policy, said it was vital for Parliament to reclaim its role of protecting citizens from interference with their rights.
The committee should be given the International Covenant on Civil and Political Rights, to which Australia is a party, as the basis of its scrutiny, he said. The covenant includes rights to free association, freedom of movement, and of equality before the law.
Mr Costello was responding to last week’s High Court decision implying a constitutional right to free speech, and the statement of a High Court judge, Mr Justice Toohey, this week that the court would develop a bill of rights.
The call came as a prominent Labor backbencher, Senator Chris Schacht, lashed out at the decision as undemocratic, in contrast to statements by the Minister for Administrative Services, Senator Bolkus, welcoming an implied bill of rights.
Senator Schacht said the decision was clearly political, and that “no unelected body has the right to frustrate the will of Parliament (by) making political decisions”.
Senator Schacht said the community would now demand that if the judges persisted in playing politics, they should “reflect a wider cross-section of the community than those who have served the law all their lives”.
“Six of the judges are WASP men (white, Anglo-Saxon Protestant), and the other is a female WASP. The demand will come very quickly that we should appoint people to the High Court who do not represent the legal community alone,” he said.
Mr Costello said he opposed a legislative bill of rights, which would be applied by the courts, because that would mean “seven unelected judges deciding these issues, and if you don’t like what they do you can’t vote them out”. He said the court had become activist because Parliament had failed in its traditional role.
Mr Justice Toohey said this week that there were virtually no parliamentary checks on “arbitrary government”, and that the judiciary would limit abuse of power by implying constitutional protections of “core liberal-democratic values”.
Mr Justice Brennan has said that control of the political process by political parties “favors the creation of poll-driven policies which will appeal to the majority … whether or not they unjustifiably discriminate against minority groups or against the weak”.
The Chief Justice, Sir Anthony Mason, has said that “human rights are seen as the countervailing force to the exercise of totalitarian, bureaucratic and institutional power, widely identified as the greatest threats to the liberty of the individual and democratic freedom in this century”.
The Attorney-General, Mr Duffy, has so far refused to comment on the ramifications of last week’s decision, but Senator Bolkus has ruled out at this stage any renewed Government move for a legislative bill of rights.