James Allan and Chris Kenny are wrong
Conservatives have long, and rightly, been wary of legislating for human rights—seeing all such legislation as a tool in the hands of unelected left-wing activist judges. Which is why I provoked a howl of outrage in these pages from James Allan when I proposed a minimalist bill of rights, based on the US First Amendment, covering just four freedoms: freedom of religion, freedom of speech, freedom of the press and freedom of assembly.
In the Sky News studios I got much the same reaction from Chris Kenny who asked: ‘What do you want Kel? More laws or fewer laws?’
The problem with that classical conservative response from James and Chris is that it fails to grapple with what’s already happening. When Otto von Bismarck said ‘politics is the art of the possible’ the old blood-and-iron chancellor hit the nail squarely on the head.
We have a problem, the problem Chris identified: namely too many bad laws—too many discrimination laws at both state and federal levels, with anti-discrimination bodies operated both by the states and the commonwealth. An attempt at a minimal wind-back of these laws (abolishing Section 18C of the Racial Discrimination Act) induced an apoplectic reaction from the Left and was abandoned by conservative parliamentarians.
Remember the explosion when then Attorney-General George Brandis said: ‘People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive, insulting or bigoted.’? That’s what free speech in a democracy means. But the shrieks of horror were so loud and so long it turned out to be politically impossible to wind back our excessive anti-discrimination laws, even a fairly minor re-wording proposed for 18C.
Now a conservative government proposes a Religious Discrimination Act. The exposure draft runs to 58 pages, contains a string of complex exemptions and limitations, (arguably) too much ambiguous language and some quite strange provisions. For example, whether your religious freedoms are protected in your workplace will, under this act, depend on the annual cash turnover of your employer. That sort of consideration should have nothing to do with basic freedoms.
As I said to Chris, ‘Perhaps it’s time for conservatives to bite the bullet and start thinking the unthinkable.’ We either need to start a massive campaign across the country to abolish all anti-discrimination laws and their enforcing bodies (and I wouldn’t put money on such a campaign succeeding) or else deal with the ugly reality that these (and other) laws are stealing our freedoms by inches.
There is often a frank admission from the Left that they oppose basic freedoms. For instance, Tanya Plibersek of the Labor Left says she dislikes the draft bill’s declaration that the speaking out of religious beliefs shall not constitute discrimination. Her objection turns this from a freedom of religion debate into a freedom of speech debate.
Do I need to remind you that Orwell’s Thought Police now really exist (you’ll find them in Get Up!, the Greens, the left wing of the Labor party, in the pages of the Guardian, on the ABC, etc. etc.)? Or that the political correctness we once treated as a joke is now policing real speech in the real world? Or that identity politics is the enemy of personal freedom?
Given the creeping shadows gathering around us we can either be ideologically pure conservatives or we can tackle ‘the art of the possible’—real world politics. Instead of standing by while a conservative government erects more and more fences around discrimination (inviting more and more activist prosecutions) can we not do something that is both simpler and more positive? Surely it is not beyond the wit of conservative parliamentarians to draft something along the line of a Four Basic Freedoms Act (using my list above)? And do so in such a way that doesn’t pretend to grant freedoms but rather acknowledges freedoms that already exist, are foundational and are not to be encroached upon?
Conservatives are not entirely negative people rejecting left-wing lunacy (although we do that, and they give us plenty of ammunition). We are also positive—actively defending common sense and positive values worth preserving. John Locke’s Second Treatise on Government as long ago as 1689 demonstrated irrefutably that liberty is central to civil society.
If conservatives fail to find a practical way (‘the art of the possible’, remember) to defend that central foundation of freedom every other issue we care about (the family, free enterprise, small government, security and the rest) will become increasingly shaky. In fact, by moving in a positive direction we may achieve the other aim as well. Once basic freedoms are legislated for a raftof anti-discrimination laws may well start to look unnecessary and foolish, and attempted anti-discrimination actions may start to fail in the higher courts because there would be a boldly set out standard to test them against.
Conservatives don’t have a lot of options in this divisive and aggressive culture wished on us by the Left. We can (1) wring our hands and weep in sorrow as our freedoms slowly fade to black; (2) start a full-on campaign to wipe out the current anti-discrimination laws that make it illegal to hurt someone’s feelings; or (3) attack from left field by demanding rock solid basic freedoms that are beyond the reach of virtue-signalling elites.
Is there no conservative politician prepared to try their hand at such a private member’s bill acknowledging such basic freedoms that opposition to them would look stupid? Concetta Fierravanti-Wells? Craig Kelly? Cory Bernardi? Andrew Hastie? Anyone?
As I’ve said before—we can’t stop activist judges (except, perhaps, by appointing better judges). They are already here and active in our courts. We need to stop pretending that we’ve avoided this evil by never legislating for any freedoms. We’ve tried that. It hasn’t worked. Now it’s time to try something else.