Who guards the guardians?

By Mark Hemery*

Our civil liberties movement is a broad church. Everyone’s genuinely committed to defending the freedoms of all Australians. But freedom is in the eye of the beholder.

Some civil libertarians see freedom as negative; the absence of obstacles, barriers or constraints. So, Scott is free if Anthony has a duty not to interfere with Scott doing something he wants to do. Others see freedom as positive; the possibility of acting so as to take control of one’s own life. So, Anthony is free if he has a meaningful opportunity to enjoy everything life has to offer, without Scott reducing his options.

This is not just a semantic difference. “Negative” civil libertarians are for Israel Folau in his fight with the ARU. Freedom of speech! “Positive” civil libertarians are for homosexuals and against Folau. Freedom from discrimination!

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

Well, for a start we’re not just libertarians; we’re “civil” libertarians. So, we are not just about defending liberty. 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, government was invented to bring peace and order. Some natural liberty had to be given away to the government. Otherwise it couldn’t do its job. What’s left is civil liberty.

Paradox

So maybe “civil” libertarians are about how much (or how little) natural liberty is given to (or taken by) the government. But this doesn’t take us very far. On this definition a “negative” civil libertarian would oppose s 18C, whereas a “positive” one would 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) Government is a necessary evil.

(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. The separation of powers. Independent judiciaries. The rule of law. Anti-corruption commissions. Royal commissions. International treaties. Human rights commissions. And the list goes on.

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

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

The reason why we cannot rely on the government to guard itself is because the guard is not independent of the government. That’s human nature. As Lord Acton said: Power tends to corrupt but absolute power tends to corrupt absolutely.

Civil libertarians can’t change human nature. It’s government’s job to do stuff that affects our liberty. And, no matter how many checks and balances are built into government, sometimes government will get away with doing bad stuff.

Independence marks us out

For me, what I believe I can and should do as a civil libertarian, therefore, is this. To be a watchdog from within civil society, independent of government, over the government institutions that are meant to protect our freedoms (however defined).

To take an example: Right of appeal laws. Except in Tasmania and South Australia, a convicted person who discovers fresh evidence after the trial cannot appeal to a court of law for a retrial. They have to beg for mercy from the government of the day.

Most right-minded people see this as absurd. But it’s the law and it has been for a very long time. Why hasn’t it changed? Possibly because vested government interests do not want the embarrassment of a wrongful conviction on their watch.

Most people who describe themselves as a “civil libertarian” readily see the value in a civil liberties organisation, independent of government, publicising issues like right of appeal laws, and advocating for a change in the law.

The same could not be said of issues that turn on which version of liberty should be given greater weight in the law. I cannot see how there can be a consistent “civil libertarian” position on whether homosexuals’ freedom from discrimination outweighs Mr Folau’s freedom of speech.

Others may have a different perspective on what it means to be a civil libertarian. And that’s fine.

But, the approach I take has a virtue. By only speaking publicly about issues on which we can agree, it would give our public advocacy greater credibility and, therefore, increase our chances of changing things for the better.

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