Who guards the guardians? (updated)

By Mark Hemery* (updated 24 July 2019)

Our civil liberties movement is a broad church. We’re all genuinely committed to defending the freedoms of all people. But freedom, like beauty, is in the eye of the beholder.

Some civil libertarians see freedom as negative. So, Scott is free if Anthony has a duty not to interfere with Scott’s liberty to act; not to censor Scott’s speech, for example. Others see freedom as positive. So, Anthony is free if Scott has a duty not to restrict Anthony’s options in life; such as by not discriminating against Anthony because of his sexual orientation.

This is not just a semantic difference. Some civil libertarians are for Israel Folau in his fight with the ARU. Freedom of speech! Other civil libertarians are for the ARU. Freedom from discrimination!

Our movement, therefore, faces a conundrum. We do not agree on what freedom is. So, how can we sensibly defend everyone’s freedoms?

Well, for a start we’re not just libertarians; we’re “civil” libertarians. So, we are not just about defending liberties. What does the “civil” bit of our name say about us? Could this help to unite us?

In political philosophy there’s an old distinction between “natural” and “civil” liberty. In the state of nature everyone was free to do as they pleased. That’s natural liberty. The state of nature was, however, violent and chaotic. So, everyone agreed to create government. Under this “social contract”, the government’s job is to secure peace and order. By force, if necessary. And, so government can do its job, everyone has to give up some natural liberty. What’s left is our civil liberty.

Paradox

So maybe “civil” libertarians should focus on how much of our natural liberty is to be given up for the common good. But this doesn’t take us very far. On this definition some civil libertarians, defending negative freedom, oppose s 18C. Others, defending positive freedom, support it.

There’s a Latin phrase from the Roman poet Juvenal: Quis custodiet ipsos custodies? This translates as: Who guards the guardians? It highlights a paradox that goes something like this:

(1) If we didn’t have government there’d be anarchy.

(2) We don’t want that, so government is the lesser of two evils.

(3) But what if the government itself does evil? Who’s going stop that?

(4) Well … what about the government?

In Australia we have many institutions that are meant to stop the government doing evil to us or our fellows. Democracy. Written constitutions. The separation of powers. Independent judiciaries. The rule of law. Anti-corruption commissions. Royal commissions. International treaties. Human rights commissions. Law reform commissions. And the list goes on.

Problem is, every such institution is in some way or other bound up with government. And, history tells us that government officials, sometimes, do not do a very effective job of guarding the rest of us against … the government.

Why is this so? One factor is human nature. As Lord Acton said: Power tends to corrupt, and absolute power corrupts absolutely. Government officials – whether parliamentarians, ministers, judges, independent commissioners, police, the military, intelligence agents etc – are only human after all. Each and every one has to resist the temptation – and some don’t – to put their personal interests ahead of ours.

Civil libertarians can’t change human nature. We’ve given government the job of doing stuff that restricts our liberty, by force if necessary. So, perhaps we can best defend everyone’s liberty by devoting our energies to “guarding the guardians”.

Independence marks us out

There is another relevant use of “civil”: in the phrase “civil society”. This is sometimes used to mean individuals and organisations that are independent of the government.

US Supreme Court Justice Learned Hand once said: Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. In other words, liberty is something that we in civil society have to lose. And lose it we will … if we do not remain vigilant.

One engaged citizen is unlikely to achieve much. But freedom, however defined, is universally cherished. So, there is great potential for even small civil liberties groups to gain the wider public’s sympathy. And, more importantly, civil society organisations are totally free from political pressure.

Which takes me back to my original question: Who guards the guardians? To which I can now give a short answer: Civil society organisations.

To give an example: Right to appeal laws. What happens if a prisoner, through no fault of their own, does not discover exonerating evidence until long after the trial? Until very recently, there was no right to appeal to a court of law for a retrial. The prisoner had to beg for mercy from the executive.

The right to a fair trial is one of our most cherished civil liberties. Most people can see straight away what is wrong with the arm of government that prosecutes crime deciding whether fresh evidence justifies a new trial.

But it’s the law and it has been for a very long time. So why hasn’t it changed before now? One factor is that the current system allows government to spare itself the embarrassment of an unsafe conviction on its watch.

Tasmania and South Australia now have right to appeal laws. The rest of Australia may not be far behind. And civil liberties organisations have played an important role in campaigns for these laws. This is a good example of an issue where our independence has made a difference.

Government accountability

The same cannot necessarily be said for all civil liberties issues. So, we might ask who is “right”; the ARU or Israel Folau? Civil libertarians of good conscience readily come to different answers on this.

I believe a better question for civil libertarians to ask when considering each and every issue is this: Is government avoiding accountability for an interference with basic liberties? In the case of right to appeal laws, the answer is yes. In the ARU-Folau case, it is no.

The civil liberties issues that I would recommend we devote our energies to, therefore, are government accountability issues. By “guarding the guardian” of our liberties, we can leave divisive “culture wars” debates to others.

Others may have a different perspective on how to best defend civil liberties. And that’s fine. We are a broad church after all. But the approach I recommend has a small virtue. Most civil libertarians can agree that government must be held to account for any interference with basic liberties. By focussing on civil liberties issues that we can all agree about our public advocacy will be more credible and persuasive.

*Mark Hemery is a lawyer and CLA member from Perth WA.

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