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Contents

overview Foreword Preface 1.0 2.0 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 16.0 17.0 18.0 19.0 20.0 21.0 22.0 23.0 24.0 25.0 26.0 27.0 28.0 29.0 30.0 31.0 32.0 33.0 34.0 35.0 From Bondage To Freedom The Values And Institutions The Rise Of Western Civilisation Political Freedom And Democracy Economic Freedom Education Personal Liberty Moral Values The Family The Work Ethic Tradition Freedom And Responsibility Elitism And Merit Competition The Entrepreneur The Role Of Government
Role Of A Constitution The Rule Of Law Respect For Law And Authority Equality Freedom Of Expression Human Rights Pride And Patriotism The Reality Of Welfare Evolutionary Change And Conservatism The Consequences Of Reformism The Spirit Of Enquiry And Criticism The Attack On Order Change Coercive Utopians Counterproductive Reform Coercive 'v' Liberal Utopian A Better Future For Mankind Conclusions Appendix -Australian Values Study

Bibliography

Overview
An account of the values and institutions which contributed to the rise of western civilisation and the development of Australia and without which there would have been no Australian Achievement.

Foreword by Ben Lexcen (December 1987)


One of Australia's leading historians, Professor Geoffrey Blainey, has said,
"In many ways the European history of this land has been a remarkable achievement. Today this land feeds fifty times as many Australians as it fed in Aboriginal times. We clothe hundreds of millions of people across the seas; we feed millions in other lands."

Paul Johnson, the eminent British historian and social analyst, after his visit in the early eighties to Australia concluded,
"The development of Australia rates as one of mankind's great achievements. With five years to go before the double century, one of the most advanced and prosperous societies on earth has been created. It is an achievement with few parallels in the history of human adventure. In the sixties the phrase "the lucky country" was coined. In fact there was little luck nothing but hard sweat and peril in the process whereby, for instance, poor men pushed broad-wheeled barrows hundreds of miles along a burning coastline to open up the Australian goldfields. There are far more tales of heroism and sacrifices in the penetration of the Australian outback than in the whole history of the American Far West".

Many individuals and groups have taken advantage of the bi-centennial celebrations to denigrate many important factors which have contributed to Australia's growth as a great nation. At the forefront of this abrogation is John Pilger. John Pilger is of course, well known for his decidedly anti-Western and anti-free market views, characteristics which have led one of Australia's leading journalists, Anthony McAdam, to say,
"In every documentary of Pilger's I have seen ... he has never failed to identify the primary scapegoat for the world's ills as the United States. America is always behind everything".

His current offering for the bicentennial year is no different. Costing more than one million dollars his series, "The Last Dream" is a harsh criticism of white Australia. Pilger said of the series,
"The whole idea of the films is that they'll be an antidote to the year of self-display and selfaggrandisement on the part of politicians, and to the whole notion that the Bicentenary ought to be a celebration. A commemoration, yes but I hope they will present another view than the idea of celebration".

In addition to the obvious controversy the series will create, Pilger's well known tendency for inaccuracy will also hopefully come under scrutiny. When referring to Pilger's earlier work, "The Secret Country", Anthony McAdam wrote,
"I suggest the term "pseudo-documentary". Pilger's effort was profoundly historically inaccurate; my claim, I believe, supportable if one examines the loading of the dice in his introduction, his choice of "talking heads" compounded by misuse of evidence and blatant inaccuracy in key areas".

Pilger is wrong in his comment about "self display and self aggrandisement". The agenda of the Australian Bicentennial Authority (ABA) does not focus on the values and institutions important to the Australian way of life. The ABA has no plans to celebrate aspects of Australian history most concerned with the bicentennial. An examination of topics selected and omitted by the ABA leaves the impression that the ABA has failed to focus on many things about Australia that most Australians are proud of. The ABA agenda focuses on "Living Together" as its theme and includes in its agenda issues such as multiculturalism, leisure and recreation, sport, religious diversity, arts, Aboriginal culture, links with Pacific neighbours, women's activities, the contribution of trade unions, education, youth, the aged, participation by the disabled and the Bicentennial flag and logo. Ignored by the ABA are the British heritage, European culture, European discovery and exploration of Australia, the development of the outback and the pioneer spirit and courage of early European settlers. The ABA also ignores the social, religious, economic, political and legal institutions and traditions which enabled Australians to open up an immense continent and to establish upon it one of the most stable, prosperous and harmonious societies on earth. These include democracy, private enterprise, the family, the legal system and the rule of law, the British Commonwealth and the monarchy, the British heritage, the Anzacs, the alliance with America, Christian traditions, high living standards, the work ethic, and private property, all of which have constituted the Australian Achievement. In overlooking the Australian Achievement and the most important aspects of the Australian Heritage, the ABA is attempting to sweep under the carpet the history and the values and institutions without which Australia would have no cause to celebrate its 200 years of modern existence. If Australians are to be given a fair presentation of their heritage, then both sides of the story need to be told. Hence, the "Australian Achievement Project", has two main items.

The first item is this book, The Australian Achievement: from Bondage to Freedom, which examines and explains the operation of those foundation values, attitudes and institutions which, in 200 years of endeavour, have taken a penal colony in an inhospitable land and raised it to the level of being a country of the highest rank among the free nations of the world. These factors include our traditions of democracy and economic freedom, the family, personal liberty, the common law and the rule of law, Judeo-Christian ethics, personal responsibility, initiative and innovation, independent institutions and realistic vision for the future. The second item involves the organisation in 1988 of a forum once a month in Sydney. The forums will also focus on the values and institutions that have been responsible during the previous two hundred years for moving Australia and the countries of the Western World from feudalism and colonialism to relatively prosperous modern democracies. Recordings of the forums on audio tape and video tape will be made and marketed. Well known public figures will take part in the forums.

The AAP wishes to publicise the values and institutions which have been important in the development of Australia. These should form the crux of any Bicentenary celebration - and are of continuing relevance after 1988.

The underlying purpose of the AAP is to provide Australians with an understanding of the values and institutions which have contributed to the rise and development of western civilisation, of which Australia is a part. The Australian Achievement Project will serve as a corrective to the negative portrayal of Australia's past which is being provided in many quarters. The patrons of the AAP are the Hon Sir Allen Fairhall, KBE, Associate Professor LJM Cooray, LLB(Cey), PhD(Cantab), PhD(Col), School of Law, Macquarie University and myself. The AAP is dependent on public subscription for its work. Any contributions will be gratefully received.

Preface
This is the preface to the first edition, with slight modifications and some additions. I was born and nurtured in a traditional and elitist environment in which classical liberal, religious and Asian values intermingled. The importance of integrity and individual responsibility, concern for human suffering and problems, and the vision of human interaction under divine inspiration as the basis for the establishment of a better world were the ideas that I imbibed from my earliest years. I embraced socialist and progressivist ideas whilst at university. Socialist and progressivist ideas based on concern for human problems led me to question seriously and reject many of the values and institutions of my early education and home environment. I felt they were not conducive to the confrontation of and solution to human problems and suffering. Socialist and progressivist ideas took a deep hold on me for about twelve years. Whilst studying at Cambridge I opposed the Vietnam war and was involved in the anti-war campaign. I came to believe that the Soviet Union was being unjustly and overly criticised and I was cynical about anti-Soviet propaganda. I was interested and involved in the political struggles in Sri Lanka. I supported the Socialist Constitution and was the chief intellectual apologist for it. I was, however, a continuing critic of the socialist government in Sri Lanka, pointing out the deep gulf between theory and practice. The consequence was that the possibility of political victimisation necessitated my emigration from the then socialist Sri Lanka. I arrived in Australia a refugee from Bandaranaike socialism without a penny in my pocket (due to exchange control laws) and was compelled to make a new start in an unknown country. While I was a socialist I took socialism seriously. I had struggles with my conscience in purchasing a family home, becoming a property owner and receiving inherited property. On deeper reflection and experience I have found socialism and progressivism wanting. I have come to believe that socialism and progressivism are in practice, as far as human development is concerned, retrogressive philosophies. I have been committed at various times to socialism and progressivism and also to the liberal tradition. Through this process of thought and experience, I have come to appreciate the evolved values of western civilisation. Socialist and progressivist ideas which influenced me at one time have been influential in the refinement of my liberal values. I have drawn from socialism's professed concern for human problems, for suffering and for a better world but I have rejected the foundations of socialist and (so-called) progressivist ideas. A better world for all, especially for the poor, can only be achieved through a revival of the values and institutions which were responsible for the rise of western civilisation (for reasons provided in various parts of this book). I have drawn from many philosophies and traditions in writing this book, including the liberal/conservative and socialist ideas. This is a book for the secular reader. My Christian beliefs underpin, but are nowhere specifically articulated. I suppose in a sense I do not belong anywhere. I am a cultural bastard (an Asian in a western environment). The emphasis I place on individual liberty and political freedom in a way which made me an oddity among

socialists. The highlighting of the problems posed by unrestrained liberty and the problems which liberty creates made me unpopular with liberals. My recognition of the value of strong government and limited government based on moral values are understood by few. Finally the focus on the transcending importance of spiritual, moral and family values and the common law, do not always fit in with the ideas of political philosophers. A new perspective has emerged in my thinking about the present and the future of Australia and the western world between the first and second editions. This is that there are many problems in the western world which are real. The first edition focussed on these real issues. There is a tendency to place too much emphasis on those problems. There is a section in the book which points out that so much of reform which is counter productive has been the consequence of a focus on a problem without a sense of perspective. There is an addition to this in the second edition that likewise the critics of what has gone wrong (including myself) have tended to focus on the problems, without a sense of perspective. There is a need to look at the positive as well as the negative. There is much still to be proud of and grateful for in western civilisation. Would Australians rather live in Australia or in Russia, Ruwanda, or many other parts of the world? This has led to small rewriting's of some sections of the book. Many have helped in various ways in the preparation of the first edition of this book. Their names (in alphabetical order) are: Val Bennett, Kenneth Brinsden, Niloufer Cooray, Noreen Cooray, Pauline Evatt, Chris Favotto, Lalin Fernando, Deborah Foster, Elizabeth Good, Malcolm Gracie, John Gully, John Hall, Gerda Hirsch, Cathy King, Ben Lexcen, Maggie Liston, Simon Lynch, Jennie Nicoll, Marjorie Nicoll, Iris Nyman, Carolyn Powell, Suri Ratnapala, Joan Rattray, Jane Rayner, Grant Reid, David Smallbone, Lynette Wagland, John Weir, Danielle Wright, Mustapha Yuksel and John Young. I owe a great deal to my research assistant David Smallbone, who indefatigably and with expedition and keenness of mind and intellect responded to the many demands I made. Lynette Wagland did much of the work on this manuscript- and responded to my many demands with expedition and efficiency, which often went beyond the call of duty. Tony Davies, Bob Day, Bill Fenner and Himani Perera have been of great help in the preparation of the second edition. Macquarie University and the New South Wales Institute of Technology (as it then was) provided facilities to me in the preparation of the First Edition. Macquarie University and the University of Sydney provided facilities to me in the preparation of the First Edition. I convey my grateful thanks to these institutions. LJM Cooray LLB(Cey) PhD(Cantab) PhD(Col), School of Law, Macquarie University, Sydney NSW 2109 December 1986 (First Edition) LJM Cooray, Faculty of Law, University of Sydney, Sydney NSW 2000 July 1996 (Second Edition)

1. From Bondage To Freedom


Two hundred years ago, Australia was a vast continent inhabited by nomadic tribes living at basic sustenance levels and used by white settlers as a prison camp. It has since developed into one of the most free nations on the earth. Its rise and development has been no accident. Australia did not rise spontaneously from the dust. The natural elements of the islandcontinent did not make it. Nor was it the creation of idle, empty men without purpose or hope or subtlety of thought. Australia, as a nation, was founded by men who brought many civilised values and institutions with them. It was the commitment of the people of Australia to these values and institutions, as they built the new nation, which made the difference between success and failure. Their belief in the transcendent validity of these values and institutions led them to implant and defend them in the new land, with the unabashed confidence that these were the values and institutions by which people may prosper in a free and prosperous commonwealth. These values and institutions did not spring from the ground or fall from the sky. They were brought here by men of the West. Australia, therefore, stands in the tradition of the Western Civilisation, which stands at the apex of human achievement. As such, Australia stands within a wider commonwealth of nations and a wider tradition. The values and institutions which have raised Australia are similar to those same which have raised the whole Western world. The task of this book is to enumerate upon and explain those values and institutions. This book is about the movement from Bondage to Freedom. This raises concern about whether "values and institutions" discussed in this book are being undermined in Australia and the western world. Is there a movement backwards to a new bondage? The query was raised by a person who read the manuscript why the book contains no reference to "aborigines" or the concept of "multiculturalism". Neither are the British specifically referred to. The book is not about people, races or sexes. It is about the "values and institutions" (as defined in section 2) which made possible the Australian Achievement. There is a degree of repetition in this book which is deliberate. My apologies to those who find repetition irksome. The subjects treated are interrelated and overlap. The development and understanding of an argument in one place is often dependent on what is stated elsewhere, and in such a situation a reference or a brief summary is provided to bridge the gap and provide continuity. Cross references are provided, but often the reader does not follow up a cross reference. Thus the reader may miss out on the argument, because an issue analysed in another place is not remembered or it has not been reached.

2. The Values And Institutions Which Underlie The Australian Achievement


The following are the "values and institutions" which are considered important in the evolution of Western and Australian civilisation.

The importance of freedom, subject to an important but narrowly defined role for government; free elections, political and civil liberties, representative democracy and limited government; a right to personal freedom; a right to freedom of speech and expression; economic freedom, subject to limited government regulation; equality of opportunity (which is different from equal opportunity); the importance of moral and ethical values, the spiritual dimension and Christianity; the family and family ties; a system of limitations, checks and balances on authorities exercising government power; the rule of law; respect for law and authority; law based on predetermined standards; procedural safeguards designed to check the abuse of power; the common law; the separation of powers and an independent judiciary; evolutionary change and reform, springing from and in tune with, community values and aspirations (as distinct from ideologically motivated, legislatively initiated and bureaucratically implemented reform); individual responsibility; honesty and personal integrity; discipline including self discipline; private property, subject to essential and limited government interference, as the only possible alternative to state property (the alternatives to private property being government ownership and control leading to feudalism, fascism, communism, etc); the profit motive and competition; the commitment of the individual to productive work; the recognition and encouragement of productive work, risk taking, initiative, innovation and enterprise; the entrepreneurial spirit and the sense of adventure; responsible elitism based on merit; concern for the genuinely poor and underprivileged; tolerance, respect for opposing views and pluralism within the context of a set of values shared by a significant majority; human rights and the primacy of individual liberty; the critical spirit.

These are analysed in various parts of this book. This list is not intended to be inclusive nor exclusive. There is considerable overlap and the entries are not necessarily in the order of importance. The list shows the essentially

evolutionary and non-ideological (at times anti-ideological) nature of the Western democratic order. Professor David Kemp in Freedom and the Rise of Western Civilisations Sydney (1984) pp 20-21 provides a succinct summary of these values and institutions drawing on Alexander de Tocqueville (Democracy in America ed JP Mayer, trans G Lawrence NY (1969) p 677)
"The Tocquevillian strategy to check the inexorable extension of the central power in the interests of preserving a degree of individual autonomy includes the independent election of different levels of government; "associations of plain citizens" which, by defending their "private interests against the encroachments of power [save] the common liberties"; a free press; the independent power of the judiciary; strict observance of procedures; strong insistence of the 'friends of liberty' on the protection of private rights from arbitrary power; and the explicit definition of a sphere of private rights free from interference. "

The question may well be asked, what is the basis for the assertion that certain values and institutions have been responsible for the rise of western civilisation? I can provide no theory nor empirical evidence to support these propositions. Neither the relationship which I have drawn, nor any other social or historical relationship, can be established as a scientific proposition. The conclusion represents my understandings based on my study of history, law, politics, government and the Bible in reasonable depth. More superficial encounters with readings in sociology, philosophy and economics have also influenced me. My practical involvements as a teacher, in politics, in journalism, in law, as a company director, in the working of government bureaucracies and committees and in religious organisations have deepened my understandings as has the experience of living and working for substantial periods among brown, black, white and yellow people on three continents and for shorter periods on the other two continents has also been a factor which deepened my understandings. The values and institutions which have contributed to the rise of western civilisation involve a balance between scope for freedom on the one hand and restraints on freedom on the other, so that the exercise of freedom by some does not detract from the freedom of others. Scope both for freedom and for self discipline and restrictions on freedom is necessary. Freedom is important but it is freedom tempered by a sense of responsibility, a recognised need for limited legal and, more importantly, for extra legal limitations on freedom. There is an important but restricted role for law and government and for other values and institutions which ensure that freedom will be exercised in a reasonably responsible way. The abovestated values and institutions form a package with economic and political freedom (subject to limited government and individual responsibility) as paramount. The necessary institutional checks and balances on freedom are important. Some of these are based on law and others are outside the legal system, such as religion, moral values, individual responsibility, tradition, family and discipline. These factors have, in the history of the Western democratic order been very significant in restricting the abuse of freedom and in avoiding anarchy. The evolved system involves a delicate balance. This balance has been evolved over the years. The phrase, "The western democratic order" (sometimes the reference is to the "democratic order") was selected after much thought, as a shorthand description of the above-mentioned

values and institutions. The word "western" has both a geographical and metaphorical connotation. The values and institutions of the western system were carried by colonists and immigrants to various parts of the world. Thus the term "western" includes Europe (the western part of the globe) and also those parts of the world in which persons of European descent constitute the majority for example, Australia, the US, Canada and New Zealand. Democracy is the most important characteristic of the western democratic order in the minds of many. It is a concept and a system with which most people positively identify. It is more difficult to explain and define. Democracy in the literal sense, rule by the people, is not a practical possibility in modern organised societies which occupy a large area of territory. The concept of democracy is analysed in section 4. The word "democracy" is not used by itself. The reference to the democratic order is intended to point to the many values and institutions which together were responsible for the evolution of made western civilisation and Australia what it is. The use of the word "order" is intended to have a broadening effect. The word "order" is used in conjunction with "western" and "democratic" as an expression to describe the values and institutions referred to above which were responsible for the rise and development of western civilisation. My first preference was to use the phrase "liberal democratic order". I did not use the phrase for the reason that the word "liberal" has been corrupted and is likely to be misunderstood in Australia as a consequence of its association with a political party. In political science it has many different connotations, with the American meaning of "liberal" differing from the use of the word "liberal" in Europe and Australia. If the word "liberal" were used it would have been in what may be called the "classical liberal" meaning. However, many who see the title may not have interpreted it in such a way. Nevertheless, liberalism and freedom (political and economic) in the context of limited government and individual responsibility were crucial in the rise and development of western civilisation. Unfortunately, a shorthand expression which includes the dynamics of freedom could not be found for a title

3. The Rise Of Western Civilisation


The values and institutions referred to above, in an atmosphere of relative freedom, have been responsible for more development and change in the last one hundred years than has taken place in the entire previous history of man's inhabitance of the earth. It is no coincidence that these changes took place during a period in human history when there was more scope for freedom than at any other time. Change, disturbance and development, in an atmosphere of gradual extension of freedom, subject to limited government and individual responsibility, have in the last one hundred years taken humanity from the era of the horse and buggy to travelling in space. Development in every area of human activity (except perhaps the moral dimension) has been apparent from a period commencing with the industrial revolution (or even before). The incidence of poverty was gradually reduced from the nineteenth century onwards, although the process of

development and reduction of poverty has slowed down from the 1960's (except perhaps in science and technology). There is ample evidence to support this proposition for those who are willing to look at the historical development and compare life as it was a century or a few centuries ago with what it is today. The great achievements of private enterprise endured by and large for the benefit of the underprivileged have created a situation where life means very much more for most individuals than it did in the feudal era. The developments of the last two centuries up to the 1960s took place as a consequence of the evolved set of values and institutions referred to above. Limited government and freedom (restricted by law and other factors but nonetheless providing a significant area for free and independent action) were responsible for these developments. Individual effort and initiative within a known framework of legal rules and institutions and extra legal values and institutions, made possible the change. Gradual changes in the rules and the values and institutions themselves will permit further progress so long as the changes are evolutionary and come from a ground-swell of popular feeling. However, frequent tampering with the rules by over-ambitious reformers threatens to put an end to the whole development that began with the Renaissance and received a new lease of life from the industrial revolution. The extent of government control of the economy in Australia has in the last twenty five years increased from 28 to 43 per cent (as a proportion of GDP). Government regulation affects every aspect of life. Government regulations are drafted by human beings and administered by human beings with their imperfections and fallibilities. This deliberate tampering with the rules by short sighted reformists has put the system into reverse by strangling the relative freedom which was responsible for steady growth and development. A detailed examination of the great breakthroughs and inventions provides interesting data. It is significant that during the past one hundred and fifty years almost all of them have taken place in liberal societies. The reference is to the pioneering inventions which involved exponential advancement in science and technology. There have been developments in the Soviet Union and in other communist countries but these countries merely adopted the scientific discoveries made in the free world. It is fashionable in many quarters to denigrate the achievements, values and institutions of western civilisation and private enterprise in particular. Supporters of freedom are active (though without adequate exposure) in making the theoretical arguments to support their position. Whilst these are important, it is equally important to focus on the great achievements in historical perspective and in comparison to other cultural and ideological systems. The great achievement of private enterprise over about two centuries has been to reduce levels of inequality and to improve standards of living. In feudal times there were relatively few privileged and wealthy persons. The "masses" were exploited and lived in near poverty or absolute poverty. The great achievement of private enterprise was to bring into existence a large middle class and to reduce very significantly the areas of inequality. The successes of private enterprise are succinctly explained by Milton and Rose Friedman, Free to Choose, Melbourne (1980) pp 147-148: "In the past century a myth has grown up that free market capitalism increases such inequalities, that it is a system under which the rich exploit the poor.

Nothing could be further from the truth. Wherever the free market has been permitted to operate, wherever anything approaching equality of opportunity has existed, the ordinary man has been able to attain levels of living never dreamed of before. Nowhere is the gap between rich and poor wider, nowhere are the rich richer and the poor poorer, than in those societies that do not permit the free market to operate. This is true of feudal societies like medieval Europe and India before independence, and much of modern South America, where inherited status determines position. It is equally true even where central planning has been introduced, as in many countries, in the name of equality. Russia is a country of two nations: a minutely small privileged upper class of bureaucrats, Communist Party officials, technicians and a great mass of people living only a little better than their great-grandparents did. The upper class has access to special shops, schools and luxuries of all kinds; the masses are condemned to enjoy little more than the basic necessities. Industrial progress, mechanical improvement, all of the great wonders of the modern era have meant little to the wealthy. The rich in ancient Greece would have benefited hardly at all from modern plumbing running servants replaced running water. Television and radio the patricians of Rome could enjoy the leading musicians and actors in their home, could have the leading artists as domestic retainers. Ready-to-wear clothing, supermarkets all these and many other modern developments would have added little to their life. They would have welcomed the improvements in transportation and in medicine, but for the rest, the great achievements of western capitalism have rebounded primarily to the benefit of the ordinary person. These achievements have made available to the masses conveniences and amenities that were previously the exclusive prerogative of the rich and powerful." Williams supports this analysis: "It is arguable that the destruction of mercantilism, the industrial revolution, and the emergence of an essentially market economy, did more for the poorest, in material terms, than did some 1,800 years of preaching about charity. It is so easy to forget that life for the masses was, under mercantilism, nasty, brutish, and short. London and Paris were cursed with recurrent famine; indeed life expectancy at birth in France was, in 1800, 24 for males and 27 for females. In 1780 over 80 per cent of families in France spent 90 per cent of their income simply on bread. Yet in one century the very nature of poverty was transformed. The working populace in Britain quadrupled, and real per capita disposable income doubled between 1800 and 1850, and doubled again between 1850 and 1900. A sixteenfold increase in wealth and services is hardly adequately dealt with simply by sighing over the fiction of Dickens and Zola or of Marx and Engels, for that matter". (J K Williams, The Christian and the State, Sydney (1983) pp 18-19). Most of the benefits of western technology and capitalism have endured primarily to the benefit of the less privileged sections of the community. Poverty and injustice, which critics make much of, exist and will exist in any human society. Jesus Christ said, "the poor you will always have with you". However, the perspective which radical and not so radical reformers overlook is the extent of the change that took place under freedom. The strengths of private enterprise are also visible when the standard of living under capitalism is compared with the standard of living under communist and other totalitarian systems. Whether private enterprise is compared with what it replaced, namely feudalism, or whether it is compared with other available alternatives communist totalitarian regimes or dictatorships (feudal or semi-feudal, or fascist) private enterprise must rate head and

shoulders above its competitors. Critics of private enterprise do not consider this aspect, except to concede that capitalism is superior to feudalism. They do not focus on the extent of the superiority, nor do they compare its record with communism or with democratic socialist interventionism. Critics refer to the "crisis of capitalism" today. But if by capitalism the reference is to a system of free enterprise, such a system does not exist anywhere in the western world. Private enterprise has been so gradually strangled by government regulation and taxation that from about the 1960's onwards it has been incapable of reducing levels of poverty and inequality. Over a period of a few centuries limited government and private enterprise had been responsible for the gradual reduction of poverty and inequality.

4. Political Freedom And Democracy


The origin and nature of political freedom and democracy and some modern problems (1996) 1 2 3 4 5 6 7 The Origins Of Democracy Freedom And Democracy Are Relative Terms The Word "Democracy" Is Misleading Representative Democracy - Not Democracy Problems Of Modern Democracy Elimination Of Civil War A Pretty Rotten System - Until The Alternatives Are Examined

4.1 The Origins Of Democracy


Representative democratic institutions evolved over many centuries as a consequence of the battles between King and Parliament in England (and later the United Kingdom) and between Parliament, King and Colonies in the United States. In the United Kingdom over many centuries the once all pervasive powers of the King were gradually reduced, with executive, legislative and judicial powers developing in separate though overlapping compartments. The American Revolution saw the eclipse of the power of the autocratic British King and his advisers. A new nation set about so distributing power, that abuse of power in the hands of an all-powerful executive, was made more difficult. The Amendments to the US Constitution incorporating a Bill of Rights were intended to restrict the exercise of power by Congress, the President and Cabinet and other repositories of power. The political history of the UK from the Magna Carta (if not earlier) is a long drawn out battle between the King and the people. A consequence of this battle was a gradual transference of the powers of the King to Parliament. Electoral reform and universal adult franchise created a link between the people on the one hand and the legislature and the Cabinet, on the other. Thus the essence of the representative democracy could be said to be the placing of restrictions on the powers of government. This cannot be over emphasised. "But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on governments would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions." (James Madison, The Federalist No 51).

4.2 Freedom And Democracy Are Relative Terms


Freedom and democracy in so far as they have any meaning in the context of government are relative terms. Absolute freedom at the national level or even in smaller groups can lead to anarchy. A host of laws, customs and conventions, regulate the behaviour of human beings. The dictionary meaning of freedom defines it in terms of freedom from something such as slavery, want, fear and so on. People in every nation are subject to a complex set of laws, customs and conventions, with the freedom to do what the law and custom do not forbid, with the possibility of sanctions operating if conduct is not so ordered. Thus, the extent of freedom in any society is residual - a person is free to do what is not prohibited. The measure and extent of freedom in any society must be determined in terms of the residual freedom from regulation. The countries which pride themselves as forming part of the free world are those in which individuals have greater scope for freedom, or perhaps to put it more accurately, where there is less unfreedom than exists in totalitarian countries, whether of the fascist, communist or other complexion. Absolute freedom for everyone is impossible as the absolute freedom of one will be incompatible with the freedom of others. What is achievable is the highest degree of freedom which is compatible with the freedom of others.

4.3 The Word "Democracy" Is Misleading


The word democracy is even more misleading. Democracy may be defined as "government by the people: that form of government in which the supreme power is vested in the people". Applying this definition, no organised society with a large population, whose inhabitants cover a significant extent of territory, can hope to qualify as a democracy. Even the Greek city state democracy, in which all citizens participated, and which has been characterised as the ideal democracy, excluded women and slaves two-thirds of the population. As the number of persons in a society increases, the problems of modern organised social interaction become more complex and the possibility of meaningful participation by people in every decision or even in every major decision, becomes impractical.

4.4 Representative Democracy - Not Democracy


What exists in the countries which call themselves democratic is representative democracy. The people elect their representatives and entrust to them the complex task of government. The government has a degree of freedom in what it does but it is restricted by the fact that it is periodically answerable to the people. The government cannot entirely forget the people. In between elections, it prima facie seems to have a great degree of freedom but this is restricted, not only by the looming inevitability of elections in the future but also by the pressures put on the government by institutions, of which trade unions and big business are by no means the only ones. The main strength of the system of representative democracy is that it makes provision, through the Constitution, law and political institutions, for limitations on the powers which are exercised by governmental authorities as well as by private associations and groups. It provides institutional checks and balances. The essence of the system is not democracy but representative democracy and a system of checks and balances on those exercising power. "Power corrupts and absolute power corrupts absolutely." The incidence of the abuse of power cannot be eliminated but an attempt is made through the representative democratic system and its institutions to reduce the extent of the abuse of power. This is done through a number of devices and in various ways. The existence of a system of fair elections which are not manipulated by the party in power, held periodically in an atmosphere of free speech, is the first factor. It is important that governments, when voted out, hand over power willingly and peacefully. Periodic elections ensure that members of government, knowing that they must face the people in the future, must be more responsive to the people's will, than in a system where they do not have to face elections. An elected government should be restricted by the constitution and the law. It must function within the constitution and the law. An independent judiciary is vital in this context to ensure that government operates in accordance with the law and not in accordance with the arbitrary whims and fancies of those exercising power. Government operates at many levels. Power is not centralised but distributed. An elected President or Prime Minister is at the apex, followed by ministers, members of parliament, civil servants, state governments and parliaments (in the case of federations), local government officials and so on. This operates as a restraint on the abuse of power. This is the theory of checks and balances, which was first given a strong theoretical base by Montesquieu and Hume. The law and the constitution operate in a political context where many pressures are placed on the government. These include factions within government and the official opposition parties who, within Parliament and outside, criticise and focus attention on the actions of the government. Pressure groups of various types exist and their operation has the effect of

narrowing the area of power of government. Trade unions, business organisations, social service institutions, religious bodies, the media and pressure groups representing feminist, consumer, environmental, aboriginal, homosexual and other views and interests, exercise considerable influence on governments and restrain and direct government power. Pressure groups give rise to special problems. The public choice theorists argue that pressure groups have in fact increased arbitrary government. In the absence of limitations, factionalism leads to the pursuit of separate ends, with the government gaining power to satisfy particular demands. There are non-legal limitations on governmental power which should not be undervalued. Freedom of speech and expression is one of the most important restrictions on exercise of power. In an age of investigative reporting and academic analyses of human problems, fear of criticism is one of the most effective restrictions on abuse of freedom for selfish ends. However, as the power of government grows, the area of free expression of individuals and institutions is adversely affected. Other non-legal restrictions include: the restriction on action imposed on politicians by the inevitability of the next election, tradition and values, the sense of duty (particularly of holders of public office) and individual integrity. Most of these values and institutions are under attack and their influence is diminishing. The distribution of power has two important advantages. Firstly, it greatly reduces the danger of centralisation of power with its attendant propensity for abuse. Secondly, the debate and discussion engendered in the process of decision making ensures the consideration of a wide spectrum of views, in contrast to totalitarian and authoritarian countries where decisions are made by the dictatorial few with little consultation and consideration. Decisions taken in this manner are more likely to represent broader interests of the people than the sectarian interests of particular groups. Governments are also restricted by financial restraints on spending, international fluctuations in trade and marketing, import and export considerations, balance of payment levels and other economic factors. Countries which call themselves democratic, have a representative system of democracy. It is suggested that this is the only form of democracy which is viable in the larger and more complex societies of today. The irreducible minimum of a representative democracy is the responsibility of the government to the people. In the Westminster system this responsibility is maintained by the principle of collective responsibility of Cabinet to Parliament and the accountability of the members of Parliament to the electorate at periodic elections. Where there is an institutional separation of the legislature and the executive, both branches are directly responsible to the people. Apart from the factors analysed above, four prerequisites for the operation of the representative democratic order may be mentioned:
1. A minimum level of education, enabling the bulk of the population to vote with some (perhaps hazy) idea of what it is all about; 2. A broad consensus, with no group having a significant following (whether political, racial, linguistic or religious) which is alienated from the system and working from outside to overthrow it; 3. Basic standards of life, living and welfare;

4. A degree of upward social and economic mobility providing avenues for persons of talent from the lower classes to move up the ladder, and the continued acceptance, by all classes, of this system.

4.5 Problems Of Modern Democracy


It is both proper and desirable in a democracy that the legislature and the government engage in the widest possible consultation prior to taking decisions affecting the public. However, decisions must remain the responsibility of the legislature or government as the case may be. Whatever consultation the government engages in cannot absolve it from the responsibility of submitting its actions to the electoral test. However, this is not the only important requirement of a representative democracy. A meaningful democratic order requires the elected government to have regard to what mandates it has received and has not received, and generally, to act according to the wishes of the electorate. The duty of an elected government is not only to submit itself to periodic elections but also to conduct the affairs of the state in accordance with what public opinion perceives to be in the best interests of the nation. The elected representatives must therefore be responsive to the opinions of those who elected them. In recent times these principles have been subverted by governments pursuing regulationist and socialist programmes. The corporatist strategy of these governments is to make their policies work by making deals with powerful interest groups such as trade unions and big business and special interest groups such as environmentalists, feminists and peace groups. This is the basic strategy of Hawke's "government by consensus". On questions of policy vitally affecting the Australian public, the Hawke government has repeatedly chosen not to consult with the electorate as a whole but with groups which, despite their power and influence, fail to represent the views of the vast majority of Australians. The government has thereby set up alternative consultative processes which circumvent the traditional institutions of democratic government. Economic policy in Australia is today effectively determined by a process of trade off between big unions, big business and the big government. What passes for consensus are deals which accommodate the special interests of union bosses, big economic conglomerates, the ideological goals of the government and specially favoured pressure groups (eg environmentalists, feminists, the education lobby, peace groups, the arts lobby, the multiculturalists, the gay rights movement and Aboriginal activists). The public is led to believe that decisions are made by public consensus whereas the truth is that they only reflect the interests of the powerful and the influential. It is not difficult to understand why these powerful groups readily cooperate. The government for its part cannot hope to obtain popular endorsement for most of its policies. It must therefore seek to create alternative mechanisms which are ostensibly pluralistic but in fact take no account of public opinion. The unions, particularly the monolithic ACTU, provide this support. The latter not only share most of the government's policy objectives but stand to gain tremendous concessions at the expense of the public.

Big businesses on the other hand, are sometimes less willing partners, forced to co-operate in this process for the purpose of survival. In return for their acquiescence, they expect patronage and protection for their interests. The unfortunate aspect is that the interests of big business seldom coincide with those of the smaller entrepreneurs, farmers, the general public and the economy as a whole. The concurrence or silence of big business participants tends to foreclose further debate on economic issues by those representing the private sector interests. It is clear that corporatism in Australia consists of an unequal bargaining process in which the economic and ideological interests of socialist governments and unions predominate. It is a masterful political strategy for imposing minority views on the majority under the guise of pluralism. It has substantially eroded the principles of democratic government which require the government to be responsible to Parliament and Parliamentarians to be responsible to the electorate. The threat to representative democracy which arises from this type of corporatism is that the process, when institutionalised, can displace the principle of government according to popular wishes. The pursuit of this strategy has been so successful that it is almost presumed that once a deal has been struck between these powerful groups, it is no longer open to question. Democracies everywhere are in danger of being hijacked by bureaucracies and special interest pressure groups. Public accountability is giving way to government by coercive deals. Political power is shifting from the populace to the powerful organisations. The inevitable victors will be the coalitions which seek to control society for their ideological or parochial ends. In the United States and Britain this process has been arrested or slowed down due to the efforts of Reagan and Thatcher. These two leaders took their policies directly to the people. They courageously weathered the abuse and ridicule heaped upon them by the new establishment, comprising pressure groups, the media and the education system. They were vindicated by their respective electorates. The Reagan and Thatcher strategy contrasted sharply with that of Bob Hawke. Hawke mistrusted the electorate and conducted government by erecting facades of consensus through unrepresentative summits. The opposition did not adequately challenge Hawke and the pressure groups and appeal to the majority of the people. The tyranny of the majority is not often a problem in the history of democracy. At times of war or perceived national danger, majority hysteria can run amok. However, for the most part the majority are generally apathetic about governmental issues and are concerned about the immediate issues in their day to day lives. The major problem of modern democracy is that of the tyranny of a minority, and particularly a minority with a strong ideological fervour, which purports to be representative of the majority or a wider group, but is not so representative. Left wing trade union leaders, purporting to represent workers, are not representative of all workers. The Women's Electoral Lobby is not representative of the women of Australia, yet it exercises enormous power in Canberra on social issues. The captains of industry invited to the Hawke Summits, were not representative of the mass of small business people who constitute (or constituted - they are a decaying group) the basis of private enterprise and entrepreneurship. Unrepresentative public affairs media (along with trendy/left forces) enjoying low public esteem, as demonstrated by the Australian Values Study set the agenda of public debate in Australia.

The basic problem of modern democracy is the tyranny of unrepresentative minority and pressure groups who have captured government, opposition, the media and the education system. The analysis of the Australian Values Study 1985 (section 35) demonstrates that the policies of neither of the main political groupings in Australia (Labour and the Coalition) were attuned to the values of the Australian people at that time. There must be questions about the extent to which there is divergence between values embodied in government policies and the values of the Australian people.

4.6 Elimination Of Civil War


One of the factors which provided stability to democratic order- and in a sense has been basic to it - has been the acceptance by the community of the power and authority of governments and the law. Civil rebellion and violence were eliminated in western democracies (though there have been isolated examples of strife). This was a reflection of the acceptance by the people of civilised methods of debate and communication. The elimination of violence made possible change and development. Many of the factors which provided stability are being undermined. The expanding size of government and the consequent multiplicity of laws, regulations and widespread discretionary power are undermining faith in law and government. This is leading to increasing breaches of the law and a rising crime rate. This is an inescapable consequence of big government. The transfer of resources away from the police force to bureaucracies and regulatory bodies is a contributory factor. A feature of the modern democratic state is the rise of groups which aggressively, and through psychological intimidation, attempt to impose their views on others. There is evidence of a break down of pluralism and the abuse of democratic procedures as a means to effect change.

4.7 A Pretty Rotten System - Until The Alternatives Are Examined


When all is said and done the critics of the representative democratic system will say "It is a pretty rotten system" and so it is - until the alternatives are examined. The strengths of the system are obvious only when it is compared with other existing and past systems of government. This is a dimension which critics of the system do not think about sufficiently and which its supporters do not highlight.

5. Economic Freedom
The nature of political freedom and its dependence upon economic freedom 5.1 5.2 5.3 5.4 Political And Economic Freedom Two Sides Of The Same Coin Private Property Governments Managing The Economy And The System Of Economic Freedom Growth Of Government

5.1 Political And Economic Freedom - Two Sides Of The Same Coin
The importance of the role played by economic freedom in the rise of western civilisation cannot be over emphasised. One of the difficulties of assessing the importance of economic freedom is that it is inextricably connected to political freedom. Both from logical and historical standpoints, it appears that the two types of freedom represent the two sides of the same coin. The importance of political freedom is fundamentally linked to the conviction that an individual should be at liberty to pursue his or her own ends in a manner that he or she thinks fit. This is the essence of economic freedom. Conversely it is economic freedom which makes independent political action possible. Political freedom, by which is meant rights such as the right to vote, the right of free association and the right to free expression, enables individuals to determine who their rulers shall be and how they shall be ruled. This freedom has been decisive in the rise of western civilisation but it would have amounted to little except for the fact that it enabled society to be organised in such a fashion that individuals were left with the autonomy to pursue their own happiness. This freedom to seek self fulfilment generated the tremendous prosperity that we now enjoy. Milton Friedman says: "The preservation of freedom is the protective reason for limiting and decentralising governmental power. But there is also a constructive reason. The great advances of civilisation, whether in architecture, or painting, in science or literature, in industry or agriculture, have never come from centralised government. Columbus did not set out to seek a new route to China in response to a majority directive of a parliament, though he was partly financed by an absolute monarch. Newton and Leibniz; Einstein and Bohr, Shakespeare, Milton and Pasternak; Whitney, McCormich, Edison and Ford; Jane Addams, Florence Nightingale and Albert Schwietzer; no one of these opened new frontiers of human knowledge and understanding, in literature, in technical possibilities, or in the relief of human misery, in response to governmental directives. Their achievements were the product of

individual genius, of strongly held minority views, of a social climate permitting variety and diversity." (Milton Friedman, Capitalism and Freedom, Chicago (1962) pp 3-4). What Friedman refers to is not the freedom or the privilege of electing leaders. He refers to the freedom to be left alone to pursue one's own ends for one's own motives. In the early history of liberalism, the value of political freedom was considered to be its ability to limit governmental power and to protect individual autonomy. In other words, political freedom was considered to be the means by which economic freedom was realised. It is ultimately economic freedom which inspired mankind to the achievements on which modern civilisation is founded. Today, regrettably, a very different view of political freedom is in vogue. It is taken to mean the power whereby we may compel governments to provide people with material benefits. Pressure groups - especially those having strong media backing may successfully influence governments to provide their constituents with material and other benefits at the expense of the rest of the community (the vast majority). Political freedom is used to empower governments. What is happening is a surrender of individual autonomy to an authority which is incapable of satisfying the demands placed upon it. The prosperity that western countries enjoy today is not the result of governmental action. Governments have succeeded in maintaining order and providing welfare for the needy and not so needy. The system can legitimately be asked to provide welfare for the genuinely needy. But the expansion of services and activities which governments have undertaken in modern times has occurred at enormous cost to economic freedom, which formerly served as the engine of advancement in science, in culture, and in material prosperity. By the misuse of political freedom, in making demands on governments, those economic freedoms which in the past helped in the conquest of poverty, ignorance and misery are being slowly undermined.

5.2 Private Property


The right to private property supports all other political and civil rights. In particular, political rights lose much of their effectiveness when the right to private property is denied. At the practical level, the exercise of freedoms such as those relating to expression, association and religion is difficult, if not impossible, without independent sources of income or wealth. In societies which deny the right to hold, enjoy and productively use private property, citizens are dependent for their employment and livelihood on the government. They have, therefore, no capacity to oppose the government or to exercise their fundamental political rights. A free news media cannot operate without freedom to own and operate machinery and property. Religious freedom is often meaningless without the right to own property (church buildings). Private education is impossible without lands or buildings. Elections are meaningless where individuals are largely or totally dependent on government. The freedom of the individual to hold and enjoy private property is, in recent times, clearly the most subverted of liberal values. Yet without this right, all other freedoms are practically meaningless. Not only is this right of instrumental value to other freedoms but it is also

indistinguishable from the very notion of individual freedom. As Professor Alice Tay states in Law and Society: the Crisis in Legal Ideals, (E Kamenka, R Brown and A Tay eds Melbourne (1978)) p 10: "Property is that which a man has a right to use and enjoy without interference: it is what makes him as a person and guarantees his independence and security. It includes his person, his name, his reputation, his chattels, the land that he owns and works, the house he builds and lives in and so on. These things are seen as his property in early law because they are seen as the verification of his will, as the tangible, physical manifestation of his work and his personality." The alternative to private property is government property. Government owns and controls individuals to the extent it owns and controls property. Feudal and communist systems illustrate the truth of this simple and basic proposition which is so easily overlooked. Carson argues that all rights depend on property: "The law may be stated in this way. All rights are dependent upon property. They are dependent upon property for their conception, their delineation, and their exercise. It follows from this that the system of property ownership will determine what rights can be effectively established within a society. Since a right cannot be firmly established unless it is tied to a property base, changes in the property system will tend to be reflected in the rights that can be exercised. And the right of the individual to the ownership of private property is essential to the establishment of individual rights. Even those asserted rights which are in reality government privileges masquerading as rights, depend on property. For example, the United Nations Declaration of Human Rights asserts that "Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control". Food, clothing, shelter, medical care, and so on are certainly property. Thus, the "rights" named depend on property for their exercise. In these cases, however, it is the property of others that is involved rather than that of the claimants. If governments establish these "rights" they must fulfil the claims by confiscating the property of those who possess it and conferring it upon the claimants. That such action is an assault upon private property there should be no doubt. That governments which simultaneously assert the right to private property and then confiscate it to fulfil other rights have adopted contrary principles there should be no doubt. Their assertions of "rights" are in conflict with each other. But my main point is that anything which is established as a right depends on property." (Clarence B Carson, "Property Basis of Rights" in The Freeman, September (1980) p 23).

5.3 Governments Managing The Economy And The System Of Economic Freedom
One of the big modern issues in Australia is about "government" managing the economy. John Naisbitt has said that only a stable economy can be managed and then we do not need management. An economy cannot be managed when it is changing and not stable. The complexities of modern interaction make management of the economy impossible. The cynicism expressed about government management of the economy does not deny the role of law in the economic arena. The idea of a managed economy, where government acts on the basis that it is capable of reaching and under a duty to reach, into every area of human activity in relation to money and money's worth, through a wide ranging and comprehensive economic plan and regulatory laws, is inconsistent with the values and institutions of the western democratic order. The need for a system of limited government and law is recognised and the basis on which limits may be imposed are analysed (see sections 16 and 26). Law also has a role in the control of banking and money and in promoting competition by placing restrictions on restrictive trade practices. The main problem arises from those who would argue that there are problems and injustices which demand economic regulation. It is likewise argued that it is simplistic in relation to a modern economy to support a system of limited government. The proponents of wide ranging economic regulation (like regulation in other fields) identify problems in human interaction. They do not, however, consider whether, given the unpredictable nature of human interaction and the multitude of economic transactions involved, regulation can be evolved as an effective alternative. This is a dimension which is ignored in a mountain of literature in the field of economics and, indeed, in all areas of academic endeavour. Spencer in The Man versus the State, London (1940) pp 29, 30, 31, 34, provides some of the answers to those who see the need for economic regulation: "... The extension of this policy, causing extension of corresponding ideas, fosters everywhere the tacit assumption that Government should step in whenever anything is not going right. "Surely you would not have this misery continue!" exclaims someone, if you hint a demurrer to much that is now being said and done. Observe what is implied by this exclamation. It takes for granted, first, that all suffering ought to be prevented, which is not true: much of the suffering is curative, and prevention of it is prevention of a remedy. In the second place, it takes for granted that every evil can be removed: the truth being that, with the existing defects of human nature, many evils can only be thrust out of one place or form into another place or form - often being increased by the change. The exclamation also implies the unhesitating belief, here especially concerning us, that evils of all kinds should be dealt with by the State. There does not occur the inquiry whether there are at work other agencies capable of dealing with evils, and whether the evils in question may not be among those which are best dealt with by these other agencies. And obviously, the more numerous

governmental interventions become, the more confirmed does this habit of thought grow, and the more loud and perpetual the demands for intervention. Every extension of the regulative policy involves an addition to the regulative agents - a further growth of officialism and an increasing power of the organisation formed of officials. ... He contemplates intently the things his act will achieve, but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues. ... Even less, as I say, does the politician who plumes himself on the practicalness of his aims, conceive the indirect results which will follow the direct results of his measures. ... Dwelling only on the effects of his particular stream of legislation, and not observing how much other streams already existing, and still other streams which will follow his initiative, pursue the same average course, it never occurs to him that they may presently unite into a voluminous flood utterly changing the face of things". The system of economic freedom has, when it has had scope to operate, clearly proved superior to any system of centralised planning or management. The market order (far more efficiently than bureaucrats) can allocate resources and effort according to the needs of the people, expressed by the people themselves. It therefore produces goods and services in such quantities and of such quality as the people themselves demand. The market produces the goods in response to demand and rewards effort. The market is the only type of order consistent with the freedom of the individual. Whenever the market has been allowed to flourish, it has produced great wealth and emancipated people from poverty. On the other hand, planned economies have consistently failed to meet the expectations of people. In democratic societies the market has been progressively interfered with to the point that it is becoming incapable of producing goods and services as efficiently as it has done in the past. Ironically, these "failures" have been blamed on the market itself and not on the forces that interfered with and dislocated it. These notions arise from a fundamental misconception that the market is something which can be manipulated or controlled to produce particular results. The choice available is between a system where decisions flow from the activities of and the interaction between hundreds and thousands of consumers, subject to media and public comments and criticisms and a reasonable degree of governmental input on the one hand, and a system where decisions are taken by a massive government bureaucracy far removed from the individuals, the providers and the consumers, on the other. The choice is between the imperfect market involving the interaction of individuals subject to public comment and limited government and an imperfect giant bureaucracy. If the reality that regulation will be in the hands of fallible human beings, purporting (as an implicit consequence of their assumption of power) to be omniscient and infallible, is realised and the record of bureaucracies is considered, the rational and common sense choice applicable to the vast majority of situations is clear.

5.4 Growth Of Government

The placing of limitations on the power of governments through a system of checks and balances has been an essential factor in the rise of western civilisation. Paradoxically the current in democracies has, in the last half-century, been flowing in the opposite direction that of increasing centralisation of State power. The limited gains of liberal and representative democracy are being lost. The tide has turned towards accumulation of powers in the hands of the executive, with the substitution of the Government for the King. The Government is now very much more powerful than the feudal King ever was. It has more material resources and more bureaucratic machinery than any king ever had. It is also equipped with the products of modern science and technology and able to impose prohibitive restrictions on individuals and groups. The potential for corruption, abuse of power and exploitation is growing. It is unrealistic to ignore the size of government or to deny that government should have a role. The time is ripe for an attempt to roll back, over a period of time, some of the accumulated powers of government. The evils and abuses resulting from exercise of government power receive minimum exposure (compared to the increasing effort by academia, the media and the left in politics to exaggerate and distort the problems created by private enterprise). Proposals to increase governmental power could with advantage be made subject to stringent cost benefit analyses. These analyses should seek to ensure that where powers are being demanded by government or government authorities, to overcome stated evils and abuses, those making such a case should be asked to evaluate:
i. ii. iii. iv. the loss of individual freedom; the financial and other burdens; the manner in which government power actually functions and a comparison of the costs and the benefits.

The failure of so many regulatory schemes as a consequence of the inevitable imperfections of legislators, bureaucrats and judges, arising from their human fallibilities should be taken into account in relation to (iii).

6. Education
The importance of education in the life of a nation and the rise of civilisation cannot be underestimated. It is a half-truth to say that education is necessary in the modern world. Education has always been necessary to preserve the human race from a lapse into rude ignorance. Education is the medium by which civilisation is preserved and fostered. It is, therefore, both a tool and a virtue. Education is essential to the preservation of tradition, the perpetuation of the accumulated learning and experience of past generations, the training of persons of learning and expertise in various essential fields (such as the various trades and professions) and the communication of discoveries and inventions. Above all these, education equips individuals for the prudent conduct of their lives. The import of these statements must be qualified both in terms of the efficacy of education and by defining the nature of education. Firstly, education cannot make a man good or evil. It can just as easily produce a clever devil as a benevolent sage. The world has seen many examples of evil genius, even amongst men of culture and taste. Francis Bacon may stand as a salient example. He strove to make all knowledge his province and yet his sense was corrupted by immoderacy and a callous spirit. He was beaten by a better man. Secondly, the most that education can do is to create an awareness of the difference between good and evil. Similarly, education cannot make a person prudent. It can supply him with knowledge but it cannot induce him to make use of it. Nevertheless, how shall he be prudent without knowledge? Forethought is limited by foreknowledge. Moreover, a well educated man becomes accustomed to putting his knowledge to good use. Thirdly, the benefits of education must be correctly attributed. There is much that masquerades as education but is entirely destructive, misleading and foolish. True education is the imparting of knowledge to the individual together with the disciplined development of the student's intellectual faculties so that he is able to fully and correctly discern, understand and apply it. Its characteristics must therefore be objectivity and discipline. The former is relevant to the substantive content of instruction. The latter is relevant to the methods of instruction and examination. The former is the necessary prerequisite of the latter. Any theory that emphasises subjectivity, independent evaluation even with objective criteria, or that asserts that knowledge itself is a purely subjective individual criterion, is unworthy of the name of education. Any system which fails to uphold and instil discipline is not worthy of the name of education. Any system which is not solidly founded upon a core of substantive knowledge (eg mathematics, grammar, literature, Latin, science, history, music, etc) is not worthy of the name of education. The production of a socially coherent body of "socially well-adjusted" persons is the goal, not of education but of indoctrination. Education does not aim at the mechanical reproduction of subjective views. In the context of the inherent limitations of the human mind, education aims and reaches towards (however imperfectly) a concept of truth and the development of faculties of objective assessment. It relies upon the propensity for truth to prevail through

objective enquiry, discussion, analysis, appreciation and discrimination. Truth and objectivity in an absolute sense are unachievable by human beings - but what is crucial is to strive towards the ideal with an awareness of human imperfections. True education is beneficial to personal development in many ways. It assists a person to rise above banality and sordidity, lifting him out of cultural barbarism and acquainting him with civilised culture. It illuminates his mind with learning, the thought and experience of generations uncounted. Giving him knowledge it helps him to understand the world, his place and his duties. It helps him to rise above his circumstances, even adversity, to master his destiny. History, theology, moral philosophy and poetry help him to realise more fully the range of action which is open to him and the implication and consequence of various actions. True education instils discipline, discernment, refinement and subtlety of thought. It develops a capacity to appreciate nobility. It strengthens the mind, develops its finer sensibilities and irradiates it with grace and beauty. The incidence of education of a high standard is a mark of a civilised nation. It is both a contributing factor towards and a result of, such eminence. It helps to produce responsible, productive, prudent, creative and erudite citizens. It is necessary for the preservation of knowledge and tradition and to the processes of constructive technological and institutional development. However, it is only true education that can further these objects. The substitution of a system founded upon false principles can only be destructive of the general welfare, since it undermines the benefits and virtues that true education conveys and that are necessary to the maintenance of civil standards.

7.0 Personal Liberty


An explanation of personal liberty and how it is decaying in modern society (circa 1996)

7.1 Personal Liberty Too Often Taken For Granted


In many countries, individuals live in fear of their rulers. A knock on the door can mean arrest and imprisonment without trial and even torture and death. People brought to trial are denied a fair hearing and charges often concern acts which are regarded as legitimate conduct in the democratic world. Gaols in these countries are occupied by prisoners of conscience and political dissidents. There were four million people in the jails of the former Soviet Union who were guilty of no criminal offence by western standards. Broadly speaking, totalitarian states negate personal freedom by official violation of due process or by the enactment of unjust laws. They practise arbitrary arrest, detention and punishment. They also prohibit types of conduct which are essential to human dignity and freedom and thereby make criminals of otherwise innocent citizens. For example, in communist and fascist states political dissent is regarded as criminal conduct and attracts heavy penalties. Although the former Soviet constitution supposedly guaranteed free speech, criticism of the Soviet political system was considered treasonable and critics were imprisoned, exiled, subjected to horrific mental manipulation or physical mutilation and exterminated. In some Latin American states, officially condoned or private death squads eliminate political dissidents. Everywhere in the totalitarian world the personal liberty of the citizen is in constant jeopardy. A minority of nations are democratic societies which value personal liberty. They share legal and political traditions which provide a large measure of protection to personal liberty. The common law, partly codified and supplemented by statute, offers the citizen a wide range of safeguards calculated to ensure that he is not deprived of personal liberty except in accordance with the law. Personal liberty means not only freedom from unlawful physical restraint or harm, but also freedom from arbitrary interference with one's privacy and lawful belongings, which, in practice, means freedom from arbitrary search and seizure of personal belongings. A myriad of common law and statutory rules protects these rights and a comprehensive survey of the law on this subject is outside the scope of this publication. The common law formulated rules to safeguard personal liberty in relation to arrest, detention, use of force, invasion of privacy and procedure in relation to trial. It must be appreciated that personal liberty can be protected only by a combination of principles, each of which is indispensable to liberty. Freedom from arbitrary arrest, detention or punishment is of limited value if the law penalises ordinary moral conduct or non-violent

political conduct. Freedom is also ineffective if there are no effective remedies for infringement or no safeguards to ensure fair trials. Procedural and evidentiary safeguards are of no avail unless there is an impartial and independent judiciary. The combined operation of these principles alone can guarantee the effective enjoyment of personal freedom. A fair trial, before deprivation of liberty and punishment, is the ultimate institutional safeguard of personal freedom. Protection against abuse of the investigatory process is of no avail if a person can be unfairly tried and convicted. The most important principle relevant to a fair trial is the presumption of innocence. In common law jurisdictions it means that an accused person is entitled to an acquittal if the prosecution fails to prove the commission of the offence beyond a reasonable doubt. The rule itself is inflexible, although the accused may sometimes be required to prove certain facts peculiarly within his knowledge. This principle, more than any other, demonstrates the concern that a citizen should not be deprived of his personal liberty except on the most cogent proof of guilt. However, even this hallowed principle of the common law is undergoing considerable derogation by legislation. There exist about 220 provisions in Commonwealth legislation alone that place the persuasive burden of proof on the defendant. Professor G de Q Walker, Crisis in the Rule of Law, paper delivered at the Mont Pelerin Conference, Sydney, 23 August 1985. Apart from the presumption of innocence, a person facing trial in a common law court is entitled to the protection of detailed procedural and evidentiary rules. These rules have been developed to ensure, among other things, adequate notice of charges, adequate opportunity to prepare the defence, adequate representation, exclusion of doubtful evidence and the effective conduct of the defence through means such as the examination of witnesses and the making of legal submissions. Additional safeguards may include trial by jury, public trial and the prevention of prejudice by unfavourable publicity. Until very recently, in most western countries infringements of personal liberties were strongly resisted and there was constant agitation for the enlargement of these freedoms. The personal liberty enjoyed by individuals in democratic countries is too often taken for granted. The difference between living in Australia and in a totalitarian state is not appreciated. If the importance of personal liberty were not taken for granted and was appreciated, there would be more concern about the implications for personal liberty of the gradual increase in the size of government.

7.2 Problems In Modern Society


Democratic societies, in recent times, have been increasingly confronted with special problems that seem to demand some restriction of the traditional protection of personal liberty. For example, widespread terrorism and organised crime have prompted western governments to take extraordinary legislative measures to protect the community. In Britain, West Germany and Italy, tough new anti-terrorist legislation is in force. In Australia, there is a growing feeling that greater powers of investigation are required to combat organised

crime. A certain measure of interference with traditional forms of protection may be inevitable for the prevention of greater harm to the community and its way of life. The challenge is to overcome these problems with minimal damage to the traditional freedoms. There is a real danger that the importance of personal liberty may be forgotten or devalued in the search for ad hoc solutions to the pressing problems of modern society. There is a tendency in Australia, as in many other democratic societies, to regard due process requirements as dispensable when they concern offences which governments or interest groups consider to be prejudicial to particular social objectives. A notable manifestation of this attitude is the establishment of the bureaucratic Commonwealth Human Rights Commission and related Commonwealth Commissions and the various State AntiDiscrimination Boards, as authorities to try to make determinations on acts of alleged discrimination, and violations of human rights, without any regard to the procedural and evidentiary safeguards described above. It is significant that there are some who call themselves "liberals" who are unconcerned about the serious violations of personal liberty involved in the recent bills and acts conferring and seeking to confer powers on the Human Rights Commission. The attempts to deny to some individuals their due process rights cannot be lightly dismissed. The fact that it was attempted shows that influential groups were prepared to regard the offence of sex discrimination as even more heinous than felonies such as murder or robbery. The existing powers of the Human Rights Commission show that, in the eyes of their proponents, these new offences are of such gravity that perpetrators do not deserve their fundamental rights to a fair trial. This is an extremely dangerous trend which is reminiscent of totalitarian socialist "justice". In communist countries the most serious offences are those which jeopardise the economic and political life of the Party. Even crimes such as murder and theft are considered to be deviant political behaviour. This notion of criminality is based on the central concern for social control and social engineering, the belief that all other considerations must give way to the politically determined priorities of society. Societies founded upon respect for personal liberty show a fundamentally different conception of justice. In such societies the due process of law has a value that transcends all other interests. The procedural and evidentiary rules evolved over a long period of time and have become established owing to the conviction that in their absence personal liberty is at great peril. This conviction stems from the knowledge that any benefit that may be gained by dispensing with due process is outweighed by the enormous damage that it causes to the foundations of liberty. The tendency to create extraordinary offences and extraordinary procedures arises from regulationist and interventionist government. Several developing countries which inherited democratic political systems have faced this dilemma when they have sought to tread the path of socialism. These countries adopted economic policies which called for state ownership of large sectors of the economy and the imposition of rigidly controlled exchange systems. As a result, every violation of the exchange rules and every offence against state property became of vital concern to the economic survival of the nation. They found that it was impossible to manage the national economy by recourse to the ordinary laws of the land. This situation led to the creation of special courts and special procedures for the trial of novel forms of economic crimes. Thus, in many cases the rule of law was irretrievably compromised.

Western nations have yet to face this type of crisis. However, it is not too early to realise that if social control is practised excessively it will create a demand for novel forms of regulation and law enforcement which will gradually undermine the foundations of personal liberty. This is already happening in Australia.

8. The Judeo-Christian Ethic And Moral Values


An explanation of the judeo-christian ethic, moral values and their importance to western democratic order. 8.1 8.2 8.3 8.4 8.5 8.6 What Kind Of Morality Is Important? Morality And Society Law And Morality The Moral Consensus And The Individual Morality, Value Neutrality And The New Morality Morality And The Western Democratic Order

8.1 What Kind Of Morality Is Important?


"Morality" or "moral values" in the context of law and government tends to be popularly associated with an established church and legal regulation of sexual morality, pornography, blasphemy and other matters which could be described as "social morality". The word "morality" is much wider than this - and it is the wider meaning that is used here. The dictionary defines morals in terms of ethics and right and wrong. The basic moral code of the Christian faith is mirrored in other religions and accepted by many who are agnostics and atheists. The common law, (see section 18.2) which is the foundation of the legal system, subject to alteration by Parliament, is based on Christian morality. Morality includes such values as honesty, the pursuit of truth, responsibility, duty, fairness in interpersonal relations, concern for one's immediate neighbours, respect for property, loyalty and duty to one's spouse and children, the work ethic and keeping one's word. The emphasis is upon the duty and responsibility of the individual. No society can function efficiently or humanely and no civilisation can endure, without these values. Honesty is essential for personal security. A lie is an abuse of another's faith. Lies demean the liar. Lies are at the root of unfair dealing and bad bargains. Therefore, lies stand at the root of personal oppression, conflict and litigation. Lies cover up worse sins and therefore prevent the rectification of wrongs. Honesty to oneself is also important. It is necessary if one is to deal with reality (while there is time) instead of creating a world of illusion and self-deception which precludes all constructive response to problems and must inevitably lead to a greater debacle.

Dishonesty to oneself and one's neighbours has a way of returning upon one's own head. The liar creates a falsehood, which he must ever go to greater lengths to maintain if he is to avoid public disgrace. It can become his living nightmare. At the same time he is less able to face up to his disgrace because his practice of lying corrodes the courage which he needs in order to face the truth. The pursuit of truth is a related and equally important value. It is necessary in order to be well-informed and in order to respond appropriately to real issues. It is necessary to the attainment of knowledge, which is necessary for all forms of progress. Responsibility for one's actions is one of the most vital principles of a civilised society. An absence of personal responsibility is a licence for disorder, anarchy, oppression and dependency. Personal responsibility is the basis of the criminal law, the law of contract, the law of civil wrongs and the law of trusts. Responsibility to higher authority is the basis of accountability. Responsibility to others (of a person in authority) for dangerous things and irresponsible persons (eg minors) is the public basis of the safe and orderly regulation of those things and persons. Personal responsibility cannot be evaded with excuses. In assuming the independence, authority and power of responsibility, the risk of failure and answerability is also assumed. In assuming the power to do good, the power to do wrong (for they are the same power) is also assumed. In assuming the power of independent action, the possibility of independent disaster (whether or not of one's own making) is likewise assumed. Thus, if a person forgoes responsibility he forgoes freedom, for responsibility is simply the moral character of freedom. Anyone who claims freedom claims responsibility. They cannot be divorced. Personal misfortunes, unfortunate circumstances of upbringing and social disadvantage cannot justify wrongdoing. It cannot make wrong right. It may in certain circumstances be offered in mitigation. Personal misfortunes do not abrogate personal responsibility. (It is indeed, an enormously patronising attitude to the poor to regard poverty as a cause of crime). No matter how unfortunate an individual's circumstances may be, he is still responsible for his actions. Each man is responsible for his own moral condition, for what he becomes, for good or evil. Outside forces can have only so much influence upon a person's virtue as they are allowed to have. The effect which those forces have upon a person's character is determined purely by his response to them. Freedom and responsibility cannot be claimed when all goes well and then denied when things go wrong. Any teaching which denies this and which denies responsibility or excuses irresponsibility, promotes wrongdoing, waste and imprudence. Every man is responsible for two things, the moral character of his conduct and the natural price or burden which his freedom (according to its extent) exacts from him. Duty is the fount of right behaviour in the face of temptation to ulterior advantage. It is the sense of duty which hardens the will, to proceed in the face of drudgery or adversity. Duty is the mother of discipline. Without a sense of duty parents abandon their children, spouses are deserted, battle-lines left undefended, clients left unattended, studies and labours left incomplete, responsible offices left vacant. Fairness in interpersonal relations encompasses honesty but also includes avoidance of abuse of privilege, of taking inordinate advantage of another's kindness, not taking advantage of

another's obligation, not imposing oneself upon another's generosity. The principle is best summed up in the maxim, "Do unto others as you would have them do unto you ". It is thus permeated by a spirit of equity and goodwill. Concern for one's immediate neighbours involves that care which human sensibility craves and that generosity which human frailty and necessitous circumstances must rely upon. It is more personal and therefore not so demeaning as a public welfare cheque. It is less open to fraud. Respect for property is no less important than respect for person. Indeed, respect for property is one species of respect for person. Property is the stuff of personal independence. It is, therefore, an economic foundation of freedom. A society in which respect for property diminishes is one in which freedom diminishes. Robbery and the destruction of property diminishes personal independence, renders impossible particular activities and constitutes a personal affront. Expropriation of private wealth by the state substitutes a society founded upon state patronage for one founded upon individual freedom. Private property is an essential adjunct of individual freedom. As stated, to the extent that government controls property, government controls people. Loyalty and a sense of duty toward one's spouse and children is the mainstay of family life. Sir Robert Menzies said that the family is the "foundation of sanity and sobriety". Strong families are necessary to nurture the young, give them values and discipline, care for the old and provide comfort and security for all members. A strong commitment is necessary to make a strong family. This includes loyalty, fidelity and a sense of duty. A nation of weak families is a nation in poverty, welfare dependency and depravity. The work ethic is the foundation of production, wealth, independence and dignity. Financial security and welfare depend upon work. Investment growth (and therefore, employment) depends upon the wealth which accrues from productive work. Work instils personal discipline, channelling energies into constructive purposes. Finally, keeping faith (keeping one's word) is important for the same reasons as honesty but is especially important for economic stability. Keeping faith means honestly performing contracts. Keeping faith is synonymous with reliability. These are some aspects of traditional morality. The list is not meant to be exhaustive but the emphasis is deliberately upon personal duties and responsibilities. This principle of traditional morality constitutes the basis of the common law. They also constitute a moral code which provides the necessary restraints that maintain freedom. Freedom exists only in a society where people respect the rights and freedoms of others. Moral systems are essentially built upon definitions of the nature of Man. Therefore, in seeking to answer the question, what kind of morality is important, it is necessary first to ask the question, what is Man? The conflict between traditional morality and New Class values is not a conflict between morality and neutrality. Any pretence that it is, is simply a rhetorical device in an attempt by the "new class" to place their views above criticism and to gain ground in the public education systems. It is a conflict between incompatible definitions of the nature of Man. The conflict is complicated by the fact that there are more than two such views. The differences between some of these are not always appreciated, with the

consequence that there is, in practice, some degree of syncretism, that is, the construction of views which are composites of elements which are mutually incompatible. Many definitions might be formulated and many different nuances might be captured. However, there are four basic kinds of views which may be encountered. One kind is the socialist view of Man as a race or species. Another, is the anarchic view of Man as an absolutely autonomous individual. A third traditionally accepted view is the view of Man as an individually created being, in the image of God. This last view implies subjection to a higher law, responsibility to a higher authority and respect by each individual for every other individual. The structural emphasis, therefore, in the traditional system of morality is upon individual autonomy subject to a duty to respect other people and a responsibility to exercise one's freedom in a lawful manner, that is, in accordance with the laws and institutions (such as the family), of God. The emphasis is clearly upon right behaviour in interpersonal relationships, personal duties and personal virtue and culpability. A fourth view would identify broadly with the third without the theist and religious dimension and stance By contrast, under the socialist view, paramount emphasis is upon the race or species. The prime socialist virtue is subordination of the individual to the group. Man is the group. The will, the advantage, the happiness, the prosperity of the group is paramount over that of the individual. The consequence of this view is the development of a concept of social justice which entails more and more regulation of individual enterprise, and "rights" to welfare and social planning (and compulsory implementation of social plans) on an ever increasing scale. The anarchic view focuses upon the individual as absolutely autonomous and therefore, free of all external constraints and obligations. Man is an individual, self-made, alone in his pristine independence. Whatever is expedient to him is moral or rather, nothing at all can be immoral for him. Because his autonomy is absolute, he is not constrained to respect the autonomy of others. He is subject to no higher law and to no higher authority. He is his own god. Conflict can only be resolved by pure power (whether in victory and defeat or in compromise). This view is completely relativistic. It is possible for socialists to allot a subordinate place for the anarchic view within the socialist system on the basis of a doctrine that where ideology and policy has no interest, anarchy should prevail. This has led to the combination of policies of personal (especially sexual) permissiveness with policies of socialist intervention and regulation in most other areas of human activity. According to this adaptation, each man is his own god, subject to the higher speciesgod. This is the moral ideology of the "New Class". The religious dimension may also be accommodated within the socialist view on the basis that where ideology and policy have no interest, religion can be accommodated. Attempts are also made to justify socialist ideology by reference to the Bible (Christian Socialism and Liberation Theology). The anarchic ideal has also frequently been confused with the traditional view, as an exaggeration of the individualism of the traditional view. This complication has increased the difficulty which liberals find in defining the limits of liberty, which has led at times to a departure from morality and a capitulation to relativism (including a feeling that misconduct and false thinking cannot be criticised). This, in turn, has led to a failure of will, amongst some of those who are personally committed to traditional values, to defend those values. Traditional morality is inestimably important. Without it, all kinds of injustices and oppressions against individual persons are sanctioned; not the distorted and imaginary

oppressions of Marxist theory but the real oppressions which arise when men forget the golden rule: love your neighbour as yourself. The abandonment of traditional morality is the cue for expropriation of private property, heavy taxation, theft, waste, compulsory association, totalitarian thought control, sexual exploitation, disloyalty to family, impoliteness, social engineering and genocide, not to mention impiety. The values of a society derive from its spiritual and moral foundations. When those foundations are destroyed a vacuum exists and people can be manipulated according to the ideology and power ambitions of ruling elites.

8.2 Morality And Society


Lord Devlin, in an essay "Morals and the Criminal Law" in The Philosophy of Law (ed R M Dworkin) Oxford (1977) at p 74 said: "... society means a community of ideas, without shared ideas on politics, morals, and ethics no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price." The Australian Values Study (section 35) demonstrates that such a consensus exists in the modern Australian community. One of the great problems of our times, however, is that elites in politics, society, media and even in some religious organisations have turned their backs on the traditional conceptions of right and wrong. Some have done so deliberately- others support ideas and causes which have (for them) the unintended effect of undermining values to which they are committed. The need for moral values to be part of the fabric of law and society does not involve support for an established church or state support for religion. Classical liberalism did not reject morality or virtue as such. Classical liberalism rejected the authority of institutions to exhaustively impose compulsory morality. The basic liberal objection to institutional enforcement of morality is that any institution vested with such power is likely to be captured and dominated by persons or groups whose interests will not always coincide with virtue. It is for this reason that liberals distrust power for any purpose and therefore insist upon the separation of church and state. Religious and moral values suffered as a result of the oppressive clerical authority of the Roman Church. The rise of liberalism accompanied, and indeed may not have been possible without, the Reformation and the emergence of Protestantism which made virtue an individual responsibility and religion a more personal relationship between man and his God.

The emphasis on the Judeo-Christian ethic is not intended to devalue other religions. The analysis points to the historic importance of the Judeo-Christian ethic in the development of western civilisation. The underlying moral precepts of all major religions exhibit a remarkable degree of similarity. The shared common morality which is focused on in this part could just as well have been derived from the basic teachings of another religion. The reference is to "basic moral teachings" which are not always reflected in religious hierarchies and even less so in states which have an "established" religion. The common law is based on and influenced by the Judeo-Christian ethic. See section 18.2. The emphasis on liability based on fault is the underlying ethical foundation. There is something called civic morality, a shared body of values based on the Judeo-Christian and ancient republican traditions, that is the underpinning of western society. The history of western civilisation was intimately bound up with individual responsibility. An individual had an obligation to be a consciously good person. Absolute freedom leads to anarchy. Law and moral values in interaction sought to creatively channel freedom in the western democratic order. "These people are constantly saying, 'Give me a consistent conceptual value. I say, 'honesty', and immediately they come back with 'I can think of plenty of times when you shouldn't be honest'. Well, you know what my answer is to that? 'So what? Mostly, overwhelmingly, it's better to be honest than dishonest.' And people have got to know that. People have to feel connected to a shared moral community. There is a yearning for morality that, I think, is genetic - and far too many of us in this society have a hole in our souls because, day to day, it just isn't there. Why do you read 'Pride and Prejudice'? Just for character and narrative? No, because it's a powerful way of saying 'Here's what noble behaviour is' look for the real and watch out for the sham." A system based on limited government will lead to anarchy and exploitation of the weak by the strong, in the absence of values outside the legal system which are accepted by the community. A question frequently posed is: why cannot the working out of a set of values be left to the individual? A system of authoritative moral values is for most people essential for decent and honest conduct. There may be individuals who can work out by themselves a code of conduct. But they will constitute a very small minority in any society. An intelligently worked out code of conduct requires intelligence, intellectual effort and a great deal of personal integrity. It is a common human characteristic to find and rely on reasons to support a position which is in one's own selfish interests and to exclude there from competing reasons and the interests of others where they would lead to a different position. These factors tend to make fair conduct difficult even in the context of a devised authoritative code of morality. It is very difficult for an individual to devise such a code and to put it into practice without constantly catering to his own selfish needs and subjective perspectives. There is another reason why subjective individual morality should be subordinated to a general code of moral conduct. The subjective morality of different individuals will often conflict with the values of others. A harmoniously ordered society is therefore possible only when all persons are subject to a code of conduct regarding which there is general agreement.

However, such a code will be consistent with freedom only if it reflects the accepted general norms and does not seek to control human behaviour in all its details.

8.3 Law And Morality


A pastor informed his congregation that Christians can no longer seek to impose their moral values on a society which no longer accepts Christianity. The second part of the statement is false. Church membership and attendance has sharply decreased. However, the Australian Values Study (section 35) demonstrates that 80% believe in God and 75% regard themselves as Christians. There are some who forcibly and aggressively argue that Christian values must be exorcised from law, society and politics. Gareth Evans (now Senator Gareth Evans) is reported in the Sydney Morning Herald 7th May, 1976 p 11 as stating at a Convention of the South Australian Council for Civil Liberties that children wanted a right to sexual freedom and education and "protection from the influence of Christianity". The same article referred to Mr Richard Neville of Oz fame as stating, "promiscuity is one beneficial way of breaking up the family structure, which has led children to become the property of their parents". Professor Manning Clark described the late Justice Murphy as a man "who believed passionately that the morality of Judeo-Christianity had ceased to be relevant. I see Lionel Murphy as a man who in that context strove to end the domination by God over human beings". If law is not based on morality, on what can it be based? There is no justification for any law that is not based on a moral or ethical value. Those who argue that Christian morality must be exorcised from law and society are at the same time arguing for new laws based on their preferred particular moral base. They are guilty of double standards. The pastor who made the statement quoted above has been deceived and is blissfully unaware of the "new morality" which the opponents of morality are committed to relativism, secular humanism, permissiveness, situational ethics, an anti-Christianityism, material equality and distributive justice enforced through law. Many concerned people, including Christians, are drawn into the war against moral values without realising what is happening. The supporters of the new morality focus on particular human problems, excite compassion and are able to hide their underlying philosophy and perspectives. They also confuse ethical standards of honesty and respect for private property with the taboos of social morality. They are adept at the characterisation of morality. Christian morality underlies the common law. The common law inherited by the British colonies in Australia and by the Commonwealth established in 1901, was developed over

many centuries by British judges reacting to particular human situations on the basis of Christian values. The Christian moral values which were influential in the development of the common law are similar to the values of other great religions. Thus, though the common law was consciously developed on Christian principles, its base may be found in principles of morality which are common to the messages of all the great religions. The basic issue is whether law based on the basic morality common to all major religions is to be defended or a movement towards a law based on ideas of material equality and influenced by Marxist philosophy, is to continue.

8.4 The Moral Consensus And The Individual


Moral values based on spiritual or religious values are the only reasonable and humane basis of law. The Australian Values Study demonstrates that these values are supported by over 90% of the people of Australia. There is therefore a moral justification and a democratic justification for supporting these values as the basis of the legal system. Those who seek to impose contrary values are a very insignificant minority in terms of the total population. They, however, exercise considerable influence in the political, academic and media circles, which in combination set the agenda of the political debate of this country and thereby exercise tremendous influence over government and changes in the law. These changes are effected gradually and in stages, with the people being deceived about the real intentions and the ultimate consequences. The consensus which Lord Devlin refers to was a part of, and very influential in, the rise and development of western civilisation. The Australian Values Study seems to indicate that it still exists in the modern western community and in the Australian community. A major problem, however, is that elites in politics, society, media and even in religious organisations have turned their backs on the traditional conceptions of right and wrong. Some have done so deliberately others support ideas and causes which have (for them) the unintended effect of undermining values to which they are mentally committed. The latter factors may also explain the breakdown in traditional morality which some regard as a feature of modern society. A liberal society can tolerate individuals who do not accept the moral consensus. The problem arises when the consensus which existed over moral values begins to break down. When a large section or a majority of the population rejects the basic moral values, tensions in society increase. That point has not yet been reached in Australia. The Australian Values Study demonstrates that support for traditional values is high. In the United States and the United Kingdom recent surveys demonstrate that after a period of progressivism there is a distinct drift back to basics. The argument developed in this book is that what is important is the existence of a consensus covering a very significant part of the population. Certain non-legal restrictions on freedom are an essential part of the democratic order. These must be preserved, creatively adapted and nurtured. Some moral values are translated into law. See analysis in section 18.2. Liberals may legitimately argue that other moral values

should not be translated into law, but they should nonetheless, in the arena of public debate, assert the importance of these values and the social sanctions attached to breaches thereof. An example of the above distinction (moral values translated into law and moral values subject to social sanctions) may be provided with reference to laws governing, and the public attitude to, homosexuality. Homosexual acts in private among consenting adults should be tolerated and not be visited by criminal sanctions. But it does not follow that homosexuality should be publicly condoned and encouraged. It does not follow that the law should provide similar benefits to homosexual partners (and also to "de facto spouses") as to married persons, that homosexuality should be publicly presented in schools as a legitimate alternate life style, that public money should be used to promote homosexual life styles and activities, or that public comment on the undesirability and unnaturalness of homosexuality should cease. Toleration of life styles alternative to the family, which do not offend the law, is part of liberalism. But this does not mean that they must be given moral sanction, recognised by law and subsidised from the public purse. Supporters of moral values may support liberalisation of laws which are harsh in their operation (eg homosexuality among consenting adults). However, they have failed to stand up for moral values and to emphasise their importance in community life. Many who have enjoyed the benefits of family life are not willing to stand up for marriage and the family. While supporting legislation which decriminalises homosexuality among consenting adults, they are not willing to stand up and express views about homosexuality. They have failed, in a free society, to articulate the need for the observance of certain values. There has been an absence of sustained rational argument, by those who believe in traditional moral values, to oppose (so-called) progressivism and to distinguish between the productive and counter-productive aspects of (so-called) progressivism. The running on these issues has been left to social moralists whose simplistic ideas and intolerant outbursts have not always constructively helped the development of those community moral values which are necessary to give meaning and depth to freedom. Moral values have been attacked by socialists, progressivists and the libertarians. Some socialists, emphasising regulation and social systems, belittle moral and individual responsibility. Common, broad based values are not seen as ennobling. They are regarded as restrictive and repressive. Some libertarians, stressing the importance of the freedom of the individual, have also been responsible by silence and sometimes by active espousal of near absolute freedom, for the decline in commitment to broadly agreed values. The libertarian, by emphasising the success at any cost ethic, has been responsible for fostering an epidemic of amorality, which on another plane liberals have professed to deplore. An unembarrassed sense of morality is essential to formulation of public policy and determination of the role of government, as well as to the life of the culture and civilisation. A shared morality has been a significant facet in the rise and development of western civilisation. The fragmentation of that morality is one of the tensions of the present. While emphasising "moral values", it is important at the same time to avoid both moral absolutism and unconditional moral relativism (ethnocentrism). A system of morality based on the values common to all religions, subject to free inquiry and discussion can alone make practical application of moral values possible.

The emphasis on morality and Christian values does not mean that all things which have been done in the past in the name of Christianity, the Church and moral values, as well as the extremes of regulation. Absolute freedom leads to anarchy. The regulationists point to the problems that freedom creates but freedom is meaningful only where there are mechanisms, both legal and social, to ensure that freedom is not abused beyond socially acceptable limits. The excesses of the past in the name of morality and Christianity needed to be tempered and moderated. Permissiveness, in many areas, is going too far in the opposite direction. Many civilisations (notably that of Rome) which have fallen prey to sloth and permissiveness have declined and fallen. It is not yet too late for western civilisation to heed this important lesson of history. The Judeo-Christian system of ethics has been influential both in the development of law, particularly the common law, and in moulding community values. Its influence in both areas has been reduced in recent times.

8.5 Morality, Value Neutrality And The New Morality


The opposition to moral values is mounted by those who argue that the source of our public values must be wholly secular. The supporters of this view refer to "value neutrality" and "pluralism". This is not the reality. What is taking place (as analysed above) is not a battle for value neutrality. It is a war for the dominance of a new morality, based on equality, social justice and relativism, over the old moral values. Pluralism in the development of western civilisation has never meant toleration of all forms of conduct. It has meant pluralism within the context of a certain shared morality. The idea that such a morality is inappropriate for our public policy is a relatively modern phenomenon. Many examples of this battle between the old and the new morality may be provided: the attack on the family, the undermining of the rights of parents to mould the character development of their children, the assault on discipline and authority, the impairing of property rights, the hostility to private enterprise, the ridiculing of the work ethic, educators who perceive their job to be the re-education and re-socialisation of the child, the attempt to reshape the values, beliefs and morality of society, items on the (so-called) progressivist educational curriculum and the advocacy of a "woman's right" to bring to an end the life of even a fully developed and breathing foetus. The preference of the man is totally irrelevant. Is this equal opportunity? This is one of the many examples of feminist double standards. Feminists want the best of both worlds they want total say in the future of the child (ie its birth), yet also expect the man to economically support any decision they make. Thus, the battle is not between moral values and value neutrality. It is a battle between one set of moral values and another. In this battle there are many who support moral values and the family but who are neutral or actively participate on the wrong side because they do not perceive the nature of the issues

8.6 Morality And The Western Democratic Order


The values and institutions of western civilisation and the religion and morality which support them are powerful artillery when they are presented with reason and tolerance. These ideas will prove to be more persuasive than the alternatives posed by the coercive utopians and the trendy left. There is, however, an important lesson of history. Western Civilisation and the religious ethic lose defenders when their supporters become dogmatic and allow their belief in absolutes to lead to adoption of rigid and judgemental attitudes. Judgement and intolerance is at odds with the fundamental premises and the spirit of any religion. It is always possible to find particular texts to justify narrowness and intolerance. Religious people and more so religious institutions, have not infrequently fallen into this trap. The Spanish Inquisition provides an extreme example of this intolerance, which has haunted Christianity ever since. The political and intellectual future of the movement to re-emphasise the importance of moral values must depend on the ability of its supporters to stand for the enduring values encompassed in the religious ethic, whilst avoiding the intolerance of the Inquisition. This is a difficult task. In certain circles within the church there has been a swing from one extreme to the other. Tolerance does not mean that every eccentric belief is to be accommodated within the fold of Christianity. The balance which must be struck is not an easy one. The maxim "hate the sin and love the sinner" provides some guidance. The condemnation of communism as an evil empire has been severely criticised. It is not uncharitable or unchristian to focus on and condemn sin. The individual, however, cannot with finality discern between good and evil. He can never forget that his judgement may be wrong. Christ said "Judge not that ye be not judged". The emphasis must be to focus on specific evil actions, without at the same time passing total judgement on the sinner. "Judgement is mine," saith the Lord.

9. The Family
The family has been an important part of western civilisation, indeed, of all civilisations and of primitive cultures too. Parental care and nurture is important even in the animal world (particularly among those closest to man - apes and monkeys). The family provides meaning, continuity and purpose in the lives of individuals. It provides a nurturing and protective environment in which children can progress to adulthood and the best environment for the care of the aged, the disabled and the young. "There is no engine of progress, security and social advancement as powerful as the family, particularly the bourgeois family whose customs and ethics defined western civilization during the two centuries before the Great Unravelling of recent decades. There is no instrument of economic growth, savings and investment, job creation and job training as effective as the middle-class family. There is no cultural institution as ennobling as family life. There is no better way to rear the young, protect the weak or attend the elderly. None." (William J Gribbin, in July 1986 National Review p 33).
Monogamous Marriage And Family

George Gilder in Wealth and Poverty New York (1982) pp 88-89, 90-91,92, persuasively outlines the importance of the family: "Indeed, after work the second principle of upward mobility is the maintenance of monogamous marriage and family. Adjusting for discrimination against women and for childcare responsibilities, married men work between two and one-third and four times harder than married women, and more than twice as hard as female family heads. The work effort of married men increases with their age, credentials, education, job experience, and birth of children, while the work effort of married women steadily declines. Most important in judging the impact of marriage, husbands work 50 percent harder than bachelors of comparable age, education, and skills. The effect of marriage, thus, is to increase the work effort of men by about half. Since men have higher earning capacity to begin with, and since the female capacity-utilization figures would be even lower without an adjustment for discrimination, it is manifest that the maintenance of families is the key factor in reducing poverty. A married man, on the other hand, is spurred by the claims of family to channel his otherwise disruptive male aggressions into his performance as a provider for a wife and children. These sexual differences alone, which manifest themselves in all societies known to anthropology, dictate that the first priority of any serious program against poverty is to strengthen the male role in poor families ... ... poverty stems largely from the breakdown of family responsibilities among fathers. The lives of the poor, all too often, are governed by the rhythms of tension and release that characterize the sexual experience of young single men. Because female sexuality, as it evolved over the millennia, is psychologically rooted in the bearing and nurturing of children, women have long horizons within their very bodies, glimpses of eternity within their wombs. Civilised society is dependent upon the submission of the short-term sexuality of young men

to the extended maternal horizons of women. This is what happens in monogamous marriage; the man disciplines his sexuality and extends it into the future through the womb of a woman. The woman gives him access to his children, otherwise forever denied him; and he gives her the product of his labor, otherwise dissipated on temporary pleasures. It is love that changes the short horizons of youth and poverty into the long horizons of marriage and career. When marriages fail, the man often returns to the more primitive rhythms of singleness. On the average, his income drops by one-third and he shows a far higher propensity for drink, drugs, and crime. But when marriages in general hold firm and men in general love and support their children, lower-class style changes into middle-class futurity. The key to the intractable poverty of the hardcore American poor is the dominance of single and separated men in poor communities. Black "unrelated individuals" are not much more likely to be in poverty than white ones. The problem is neither race nor matriarchy in any meaningful sense. It is familial anarchy among the concentrated poor of the inner city, in which flamboyant and impulsive youths rather than responsible men provide the themes of aspiration. The result is that male sexual rhythms tend to prevail, and boys are brought up without authoritative fathers in the home to instil in them the values of responsible paternity: the discipline and love of children and the dependable performance of the provider role. ... It was firm links between work, wealth, sex and children that eventually created a futureoriented psychology in the mass of western European men ... "The act of marriage is necessarily one which stands centrally in the whole complex of social behaviour." In particular it stands centrally to a man's attitude toward time, and thus toward saving and capital. Conversely, a condition of widespread illegitimacy and family breakdown can be a sufficient cause of persistent poverty, separating men from the extended horizons embodied in their children. An analysis of poverty that begins and ends with family structure and marital status would explain far more about the problem than most of the distribution of income, inequality, unemployment, education, race, sex, home ownership, location, discrimination, and the other items usually multiply regressed and correlated on academic computers." The breakdown of the family poses problems for the system. Traditionally, the family has played an important part in the maintenance of law and order. It is not possible to have policemen on every street. Control which parents traditionally exercised over children (a control which is no longer effective in the same way) helped to maintain law and order. The breakdown of the family and the decay of discipline in the schools which the progressivists (so-called) have engineered has contributed in a very large measure to the growth of teenage vandalism, crime, drugs and alcoholism. The escalation of these problems from the 1960's onwards corresponds to the decline of the family and familial discipline and to the growth of permissiveness. A teacher argued here, that the breakdown of school discipline which has accelerated over the last five years is the result of reduced family discipline. Children come to school from a nonauthoritarian and indulged background. Their parents have no control over them - so how is it possible to expect schools to exert real control over them? They have grown up in an environment bereft of authority, discipline and respect, they therefore have no concept of

respect - they cannot understand discipline. Schools can do little to fill this lacuna, yet they are often critically identified as the cause of this moral decay. The answer to this is another question: how did discipline break down? The ideas of educationists, especially in the tertiary sector, have played a prominent part in the relaxation of discipline in society and school. This includes the attack on and undermining of moral values. The decline of the importance of the family unit creates not only social consequences but also economic effects. "An ever increasing proportion of nations' families can no longer fulfil the basic function for which the family exists to act as the primary system for the delivery of welfare, health and education services to the young, the sick and the old". Newsweekly, August 20, 1980, p 16. When these primary services are greatly reduced, or even totally disappear, they do not cease to be essential. Children have to be fed, cared for and educated. The sick must be treated, the old must be assisted. All that happens is that the services of great economic value, once performed by the family without economic cost, are transferred to the government, which has to pay handsomely to ensure that the same services are provided by professionals, teachers, doctors, nurses, social and welfare workers, the proprietors and staff of hospitals and homes for the aged and other individuals and institutions. This is one of the basic reasons for the explosion of welfare expenditure which has far-reaching budgetary and economic consequences. The common law and the western tradition provided special benefits and protection to the intact family. This was a recognition of the moral and practical importance of the family unit. The claim that other units (de factos and homosexual partners) which lack the moral and practical advantages of the traditional family deserve equal recognition and state patronage cannot be supported. Toleration of alternate life styles is a part of a liberal order but it does not follow that such life styles can be supported by the law and the state (see section 8.4).

10. The Work Ethic And Discipline


An explanation of the nature of the Australian work ethic and how it is changing circa 1996. 10.1 10.2 10.3 10.4 10.5 10.6 Australia Built By Work Ethic And Discipline Work Ethic Discipline The Attack On The Work Ethic The Shirk Ethic Discipline Undermined

10.7 The "Get Rich Without Effort" Ethic

10.1 Australia Built By Work Ethic And Discipline


Australia was built by means of hard work and discipline. Men and women, in the face of great obstacles, defied even the elements of fire, flood, drought, plague, pestilence and the unforgiving sun, ventured into the wilderness and persevered to carve out a new living and to found a new nation. It took courage, tenacity, discipline, a will to work hard and a provident vision to conceive and fulfil this task. One of Australia's leading historians, Professor Geoffrey Blainey, has said, "In many ways the European history of this land has been a remarkable achievement. Today this land feeds fifty times as many Australians as it fed in Aboriginal times. We clothe hundreds of millions of people across the seas; we feed millions in other lands". Paul Johnson, the eminent British historian and social analyst, after his visit to Australia in the early nineteen eighties concluded, "The development of Australia rates as one of mankind's great achievements. With five years to go before the double century, one of the most advanced and prosperous societies on earth has been created. It is an achievement with few parallels in the history of human adventure. In the sixties the phrase "the lucky country" was coined. In fact there was little luck nothing but hard sweat and peril - in the process whereby, for instance, poor men pushed broadwheeled barrows hundreds of miles along a burning coastline to open up the Australian goldfields. There are far more tales of heroism and sacrifices in the penetration of the Australian outback than in the whole history of the American Far West." (The Age, January 22, 1983). The Australian pioneers were often faced with ruin and forced to start again. Often it was that no matter how hard he toiled and no matter how diligently he forethought, the free settler would be beaten in the end by the harsh Australian elements. Yet hard work, discipline and vision triumphed. The work ethic and discipline amongst the populace have been essential requisites in the rise and development of western civilisation. This system seeks to maximise personal freedom, thus preserving liberty to do good as well as liberty to do bad. It also recognises the imperfections in Man (as well as the good) and the increased possibilities for evil, inefficiency and corruption where power is centralised. That does not mean that in this philosophy freedom is considered to lead always to a good or perfect result. Individuals may misuse freedom. In doing so they will destroy freedom (in some degree). Nevertheless, freedom subject to limited law and government produces better results than the over government of the modern state. This is why moral values are so important. Remove those values and freedom will decay and the system will collapse. Two of the most important of these values are the work ethic and discipline.

10.2 Work Ethic


In the West, the work ethic is drawn from the influence of the Christian religion and from the Bible which says, "Make it your ambition to lead a quiet life, to mind your own business and to work with your hands, just as we told you, so that your daily life may win the respect of outsiders and so that you will not be dependent on anybody. " (1 Thessalonians 4:11-12). Also, "Let no debt remain outstanding . . ." (Romans 13:8). As may be seen, this ethic places a premium upon independence, privacy (both for oneself and for others), prudence, sobriety and respect. Work is one of the principal means to these ends. The psychologist David C McClelland locates an individual and cultural trait which he labelled "the achievement motive" which is displayed as a drive for efficiency. This trait can be measured in individuals by psychological tests and it can be located in past and present cultures by examining their literature and folklore. McClelland claims that this trait is encouraged by certain types of family life and child raising which emphasise responsibility, capability and discipline. The appearance of this "efficiency" motif in the culture seems to precede all manner of cultural achievements from Classical Greece to the Italian Renaissance and the industrial revolution. Certain minority groups such as Jews have carried this trait in a strong form. The work ethic has been in decline in western society since the Second World War. Hard work is productive, productivity creates prosperity and prosperity negates poverty and contributes to independence. The best means of welfare is self-support - personal independence. This can only be achieved and maintained through work (except where there is very great inherited wealth). Independence in turn promotes personal responsibility and self respect and makes it possible to support dependents and to be generous and beneficent to needy persons. The welfare state lives on the back of the independent individual (through taxes). Without a commitment to work there is poverty or welfare dependency, and personal responsibility and self-respect are undermined. A transition to a social emphasis upon a leisure lifestyle and a dislike for work (and consequent laziness, slack-handedness, inattention, sloven and welfare bludging) must diminish the productivity of a society. It must also increase the taxation burden which the welfare state places upon the industrious person. Together these factors reduce the growth of wealth, decrease independency, and therefore also, undermine personal responsibility and self-respect. Other social evils, such as a rising crime rate, will follow. One myth which has arisen is that the work ethic may help to promote unemployment. It is argued that the introduction of shorter working hours and early retirement may help to reduce unemployment. In fact, these methods can only succeed in sharing unemployment around.

The person who works a four day week instead of five days is unemployed for one day. His level of prosperity must fall. If he is paid for five days while only working for four, the cost of unemployment is simply transferred to the employer as a cost of employment. This must make employment less worthwhile to employers and will therefore cause unemployment to increase. More work, on the contrary, generates more production and more wealth. The more wealthy a person is, the greater the proportion of his income that he will invest. More wealth means more investment, which means more employment (although an inflated wage structure may weaken this effect). The fact remains, then, that work produces wealth, which must benefit not only the individual but the whole economy. Indeed, it must be said that the widely accepted notion of retirement while still fit to work (especially when that means dependency upon a state pension) is inconsistent with the work ethic. It may be noted that retirement often has a detrimental effect (where continuing activity has not been planned) upon a person's morale, health and financial security.

10.3 Discipline
Discipline consists of more than punishment, at the hand of authority, for wrongdoing. It includes self discipline; the regulation by a man of his own heart and mind, the cultivation of discernment, virtue and noble tastes and sentiments and the suppression of unbalanced passions, vice and mean dispositions. Discipline therefore, is a way of life. The undisciplined man is a slave to passion, luxury and sloth. He entertains dreams on a large scale but the reality of his existence is sordid. On the other hand, the disciplined man is a free man. His judgment is sound because he is trained and experienced in responsible judgment. His means are independent. His life is free of the debilitating influence of vice. He is able to discern between that which seems good and that which is good. Although discipline does not consist merely of punishment, at the hand of authority, for wrongdoing, this external discipline is nevertheless very important, as an essential part in training the individual to be self-disciplined (by means of punishments, rewards and warnings). This is necessary and proper, both for the sake of the individual and society at large. This external discipline is necessary, for example, in schools, in order to induce the recalcitrant student to concentrate on his studies and observe proper behaviour as well as to protect the other students from a corrupting and disruptive influence. Punishment may, at times, seem harsh but it is justified by the miscreant's guilt. A failure by authority to impose discipline leads to the proliferation (under personal licence and peer pressure) of indiscipline and the influence of bullies. The decay of discipline in our society is reflected in the increasing numbers of people who resort to violence and crude behaviour when provoked. Discipline is necessary for all achievement, especially great achievements. Without discipline there can be no scientific advances (eg no penicillin), no entrepreneurial, industrial or technological achievement (eg no mass-produced motor car), no settled system of law and order, no literary achievement, no exploration and development of a new land (eg Australia

since 1770) and no proclamation of religious truth, because all of these matters require the careful, vigorous, sustained application of trained and balanced minds and bodies. Discipline goes hand in hand with hard work. Discipline makes it possible for a man to endure the rigour of hard work. Discipline directs work, making it fruitful and excellent. On the other hand, discipline is fruitless without work. Australia could not have been developed without either of these factors.

10.4 The Attack On The Work Ethic


The work ethic in an extreme form glorifies hard work for its own sake, regardless of the efficiency of the efforts expended or the practical value of the outcome. This is expressed in maxims such as "Satan finds work for idle hands". This, it is argued, can lead to the phenomenon of the "workaholic" who is incapable of relaxation and it can contribute to a joyless view of life which finds no place for fun and relaxation. This is not to ignore that some people find joy (and even relaxation) in their work. Why should a person who finds enjoyment in work be criticised, unless he neglects his basic duties and responsibility to the family and society? These so called aberrations, their association with the rise of capitalism and the propagation of the work ethic by certain religions, have made the work ethic a target for "progressive reformers". They have been able to denigrate the valuable and constructive parts of the work and efficiency ethics in the name of liberation from the "primitive superstitions" of religion and the "cruelty and repression" of capitalism. The success of the progressivist shows the breakdown of the rational attitude to tradition, which sifts out the good from the bad in traditional belief systems. Consequently, "the baby is thrown out with the bathwater" and valuable practices may be cast aside along with other ideas that have fallen out of favour. The rational attitude appreciates the indispensable nature of traditions, while insisting that the various parts of our belief systems should be able to stand the test of criticism in the light of other parts. This can lead to a continuing process of cultural enrichment, whereby false and destructive ideas are eliminated, and new ideas that stand up to the test of criticism and practical application become assimilated into our life styles.

10.5 The Shirk Ethic


One of the mindless reactions against the work ethic might be called "the shirk ethic" which is common among people who have no actual experience of hard work at all. This ethic became entrenched at both the top and the bottom of the English class structure, as described in The British Disease by G C Allen. He described the "cult of the amateur" among the upper classes which has infected the education system and produced managers who are largely incapable of managing. It has also helped to produce workers who are unwilling to work and especially unwilling to work more effectively by taking on new technologies.

Arthur Koestler encountered a form of the shirk ethic as it was institutionalised among English labourers. In November 1940 he escaped from Portugal and made his way to England, at that time the last bastion of western resistance to Hitler. He joined an Alien Pioneer Corps to "Dig for Victory", which his company of refugees was very willing to do. They asked if the ritual tea-breaks, with the march to and from the canteen, could be eliminated to gain almost two hours of digging in the day. "The CO appreciated our laudable zeal and explained that we had to have our tea-breaks whether we liked it or not because the British Pioneer Companies, plus the local trade unions, would raise hell if we did not. That was about six months after Dunkirk". Arthur Koestler, "The Lion and the Ostrich", in Bricks to Babel - A Selection from Fifty Years of Arthur Koestler's Writings, New York (1980) p 37. This type of anti-productive mentality was lampooned in the film "I'm All Right Jack". A German migrant found something similar in Australia after the war. A skilled fitter and something of a perfectionist in his work he made a mistake on a job shortly before the 5 o'clock hooter. Determined to make good his error and complete the task he kept on after the hour. A shop steward approached and told him to down tools. He protested that he only wanted to fix the mistake that he had made, otherwise the job would have been done by the end of the day. The shop steward insisted that nobody should be made to work beyond the approved hours; the fitter said he was not being made to work, the mistake was his fault and he wanted to put it right. In the course of this discussion the job was put right and he went home, perplexed. Next morning a manager called him to the office to warn him that the next time he worked after the hooter the shop stewards would call all the men in the factory out on strike. This form of shirking, policed by the unions, is a manifestation of the misguided "class war" between capital and labour, as though labour gains something by cutting the returns to capital. Another form of shirking has a more rational basis in self-interest. This was shown in the case of repairmen in a public sector monopoly who made sure during the week that there was work left over to be done at overtime rates on the weekend. The amount of overtime could be adjusted to meet special needs at the time, so the carry-over tended to increase before Christmas. The shirk ethic is promoted by the intellectual revolt against "repression" and "discipline". It is policed by some unions as a part of the class war and it is encouraged by systems of rewards and payments that are based on inputs (usually of time) rather than outputs.

10. 6 Discipline Undermined


Respect for discipline has declined with the work ethic, as progressive forces undermined the traditional props of good manners, industry and responsible individualism. The work ethic may be regarded as a form of discipline. In any case both have been subjected to ridicule in progressive circles as "Victorian" and "bourgeois". Most critics have paid no regard to the desirable effects of fair and reasonable discipline, and have not put anything in place of the beliefs and practices which they have been so eager to destroy. Bertrand Russell was prominent among progressivists in many causes and he is not usually noted as a supporter of Edwardian values, but he wrote,

"What people will do in given circumstances depends enormously upon their habits; and good habits are not acquired without discipline. Most of us go through life without stealing, but many centuries of police discipline have gone into producing this abstention which now seems natural." (Portraits from Memory and Other Essays, London (1956) p 15). Times have changed and it is apparent that stealing and other breakdowns of traditional discipline no longer seem unnatural. This is shown in many ways. Shoplifting is now proceeding on such a massive scale that the retail industry is not prepared to publicise it for fear of making things worse. In many schools the teachers are subjected daily to threats, swearing and harassment sometimes amounting to assault. Vandalism including arson in schools, and casual violence are widespread, while standards of manners and dress have declined even among students of the better schools. Aggressive bad sportsmanship, accusations of cheating and abuse of umpires has become a feature of most sport, even cricket, which used to set the highest standards in this regard. Children are quick to copy their heroes in these practices. Discipline has broken down in many homes under the influence of the doctrine of permissive child raising, perhaps unfairly blamed on Dr Spock. Many parents are intimidated by the shifts of fashion in child-raising practices and live in fear of harming their offspring by harsh restraints upon their "natural" and "creative" instincts. Even if parents do not endorse permissive principles, the absence of widely accepted standards of good behaviour results in many children missing out on the guidance and limits which they need in order to develop a sense of responsibility. The erosion of discipline in society has its most powerful roots in the home and the school, since these are the institutions which have the most powerful formative influence upon the child. Permissive child-rearing practices, have come into vogue due to the influence of modern psychology, have imparted the false notion that disciplining the child, and particularly punishment, is to be contrasted with love. Moreover, this is considered harmful to the child's personality, possibly to the point of inducing so-called psycho-sexual repression. Even in families which are still committed to traditional values there is a greater tolerance of misbehaviour, particularly of filial disrespect, than that tolerated prior to the rise of the modern doctrines. Probably this is to be attributed more to the translation of permissive practices into a peer pressure amongst children than to neglect by traditionally minded parents. The breakdown of the family structure is having an accelerated effect upon this process, not merely through the logistical difficulties which single parents must face in attempting to maintain discipline but also in the poor example which divorced parents set to their children. In schools, the practices of permissiveness are also well advanced, particularly in public schools, to the point where the NSW State Government is now attempting to improve behaviour by advertising and by the threat of expulsion. Such advertising is unlikely to be effective. It cannot provide the personal approach which is so necessary to discipline. A short explanation of the fact that undisciplined people do not succeed in life cannot substitute for the personal impact of reprimand and punishment for particular wrongful acts and explanation of the proper standard of behaviour in particular instances. In short, it cannot have that moral force and efficacy which is most essential in assisting the child to develop self-discipline and a respect for moral principle. Similarly, the threat of expulsion is too

extreme to be of much assistance in the day to day maintenance of order in the classroom and the playground. The breakdown of discipline in the school and the family is a most powerful influence in the general decline of discipline in society. That decline increasingly manifests itself in the amount of violent crime; robberies, assaults with deadly weapons, rapes, murders and brutal sex-murders. The extent of this sort of crime has increased far beyond that which would have been contemplated thirty years ago. It has little to do with the availability of weapons, since the knife has been available for many centuries. Moreover, the trend is not confined to violent crime. "White-collar" crime has also increased dramatically. Associated with the decline of discipline and the rise of the doctrine that discipline is to be contrasted with love, is the rise of doctrines of determinism and erosion of the principle of personal responsibility. This, again, is at the instance of modern psychology. These doctrines are not new. They have existed at least since their modern formulation by Freud but their penetration into social policy and much of judicial thinking has been relatively recent. Criminals are excused (almost as often in practice as in theory) on the basis that they come from an "underprivileged" background or that they have undergone traumatic or hurtful experiences at some point in their lives or that they "never had a chance". Psycho-analytic theories draw causal links between bad or unfortunate experiences in childhood and bad behaviour later on. This then becomes an excuse for failure to impose lawful discipline, the theory being that the miscreant is a victim of circumstances, with a damaged personality (which needs to be rehabilitated); a person who is therefore not responsible for his own actions. The dehumanising effects of such a philosophy upon wrongdoers must be obvious. The miscreant will either be cynically contemptuous of a penal system which rewards his misbehaviour with weak rhetoric and ineffectual penalties or, he will come to believe that he really is so deterministically bad that he can never be any different. He is not treated with the dignity that befits a responsible man. Punishment is becoming an outmoded concept. He becomes a defective unit, requiring rehabilitation, to which the magnitude of his crime is irrelevant. Therefore, the penalty ceases to fit the crime and the way is paved for imprisonment to be applied without reference to the concept of guilt. The unfortunate implications of such developments include the possibility of imprisonment and "psychiatric treatment" of persons who do not meet criteria normally set by academic, technical or political elites. This, in fact, is the fate of many religious believers in the Soviet Union. In Australia the doctrine has not been applied to the full extent of its implications. The main practical problem remains the soft treatment of significant criminal acts (leaving the community increasingly at the mercy of criminals). One recent example is the Granville train disaster hero who later embezzled over one quarter of a million dollars and received a relatively light sentence on the ground that his crime was supposedly induced by a psychological condition, referred to as "survivor's guilt," which he developed in response to his fortunate escape from death in the Granville train disaster. The missing dimensions of these psychological doctrines are (i) the positive value of discipline and (ii) personal responsibility. Discipline and punishment do indirectly affect personality but the overall effects are positive, if correctly administered. Discipline cannot be classed with gratuitous violence. Discipline and punishment are essential to personal

development because they involve recognition of the dignity of the individual, the moral capacity of the individual (ie the capacity to know right and wrong), the freedom of individual actions and, therefore, the moral responsibility of the individual for his actions. The erosion of discipline (focusing on the unfairness to the individual of punishment) is directly responsible for the increasing incidence of violence and irresponsible actions referred to above. Any adverse effects of discipline on the individual must be evaluated against the problems so evident in modern society which reflect the policies of the anti-discipline establishment. Any theory which fails to recognise these principles and which fails to recognise the value of discipline and punishment, treats the human being as a behavioural machine, purely "conditioned by circumstances". Discipline is not to be contrasted with love. Rather, those who avoid discipline harm not only their child, but also society. Discipline promotes the discharge of personal duties and a healthy self-respect and a willingness to assume personal responsibility in the face of problems, difficulties and temptations. Punishment is therefore, an act of love. The second missing dimension of modern psychological doctrines is that of personal responsibility. By drawing causal relationships between bad or unfortunate experiences in early life and bad behaviour at later stages, these theories fail to allow, firstly, for personal reaction to experiences and secondly, for the fact that mere explanation does not provide justification. The failure to allow for these factors is based on the conception of human behaviour as deterministic; inevitably mechanically reactive to events and circumstances. Such an approach does not allow for free human action. It does not allow for the spiritual nature of man. It would be foolish to deny that bad or unfortunate experiences may be deeply upsetting, unsettling and traumatic but it is even more unrealistic to deny that human responses to such events are free and therefore, variable (and therefore, responsible). It follows that an explanation of the past experiences which contribute to a person undertaking an improper action cannot therefore justify that action, for the simple reason that the experiences are not determinists of the action. The erosion of authoritatively imposed discipline is contributing to a generation of persons in which a significant number have low self-esteem, are unwilling to assume personal responsibility and a helplessness in that they believe that they cannot alter their behaviour or exert any influence over their destiny. So many people are not growing up with the spiritual reserves to face difficulties, deal with problems, resist temptations and discharge duties. This analysis must not be taken to uncritically endorse the extent of discipline and punishment in past ages. A great deal could have been done to humanise discipline and punishment and provide fairer standards. The unreasoned attacks on discipline and punishment have prevented this. The pendulum has swung too far in the opposite direction.

10.7 The "Get Rich Without Effort" Ethic

This is the ethic of the gambler, and it is not particularly novel. What may be novel is the state sponsorship of this ethic by way of the state lotteries and Lotto, and the sophistication of the promotion for these things. A particularly impressive example of this phenomenon appeared during the Brisbane Commonwealth Games with the theme "Be a winner!". After exciting scenes of famous sporting achievements by Australians came pictures of people watching their Lotto numbers come up, then caressing the new Rolls or walking down the front steps of their new mansion. "Success can be easy" was the message. For a dollar or two and perhaps the effort of scratching a lottery ticket you can end up rolling in money. This message undermines the idea that hard work and application are required for success. The other advertisements for Lotto, lotteries and scratch-ems are almost as bad. They help to promote the idea that success or just "feeling good" should be available without intelligence and effort. This is the mentality of the gambler, the drug addict and the parasite.

11. Tradition
The Internationale contains a line "No more tradition's chains shall bind us." This is one of the fundamental ideas of socialist/progressivist thinking. Man must be freed from tradition. Reason is to be the guiding light. The devil can cite scripture for his purposes. Reason can often be used to support any position. If men and women are freed from tradition, the experiences of history and the family environment, they can be manipulated and used by ideological and religious leaders, eccentrics and maniacs. If tradition declines, ideologues can mould and influence individuals. Edward Shils has produced a monumental book entitled Tradition, The University of Chicago Press, 1981. David Armstrong, writing in Quadrant, October (1982) p 71, summarises his argument thus: Shils takes a wide view of what tradition is. For him it is anything transmitted or handed down from the past to the present. Material objects (the Iliad, the Parthenon), beliefs, images, practices, institutions, can all be tradita, that is, things handed down. The handing down of them constitutes a tradition. He does demand a certain persistence or recurrence through transmission, because tradition has to be distinguished from mere fashion. (Is it the case that a society where traditions are weakened becomes a prey to fashion?) Shils says that there must be three generations to yield a tradition, although the generations might be no more than the 'generations' of school children at a school. This wide definition, of course, makes it easier to defend the view that human society cannot function in the absence of traditions. But is there a coherent narrower definition to be found? In any case, the handing on of particular beliefs, practices etc., or constellations of such beliefs and practices, in a recurrent pattern, is something that occurs. What Shils may ask, are such patterns of handing on to be called if not traditions? Shils distinguishes between substantive traditions and second-order traditions. One of the important features of the western democratic order is that while it has recognised the importance of tradition, it has also made possible change and modification of tradition. Primitive and earlier societies were often held back by a single body of tradition which tended to be rigid and unbending. In modern states, individuals live in a multi-traditional society. Diverse or even incompatible beliefs and practices exist. Different models for belief and conduct are available. An individual can make a choice between them. This is the product of freedom-related ideas. The question then arises whether an individual who makes a choice between traditions is free of tradition? The answer is that he will not make such choices unless society has developed a certain tradition: the liberal tradition of making a free choice between traditions. This is what Shils means by a second-order tradition, which is a tradition concerning traditions. The basis of tradition is reason and experience. Experience is perhaps as important or more important than reason. Experience extends beyond reason and mental horizons and embodies factors which people only dimly perceive and cannot rationally explain but which contain elements of truth and understanding, based on accumulated experience.

What is the relationship between liberalism and traditionalism? Liberalism is vitally connected to tradition to the extent that tradition represents those rules of conduct which grow in a spontaneously ordered society. Classical liberalism promotes these traditions in opposition to rules which are dictated by authority. There are, however, other so called "traditions" which are inimical to freedom and which in fact have been destroyed by liberalism. These "traditions" usually concern special privileges for particular persons and classes (such as the nobility). These are traditions only in the sense of long observance or, more accurately, long enforcement. They are not traditions in the philosophical sense. What is happening today is that the latter type of false tradition is re-emerging in the form of the cliches supporting authority. If tradition is to play its part in human progress, its development must be unimpeded by dictate. Neither "we" nor "they" should dictate tradition. As a young person in an eastern environment influenced by western learning, I often decried tradition. I asked for rational explanations, which those who upheld the tradition could not provide. I then ignored and ridiculed the tradition. But years later I came across some explanations which rationalised the tradition. The problem with traditions is that since they have been handed down over a long period of time, the rational bases are either not known by those who uphold them or cannot be lucidly explained. There are often reasons to support traditions but, to the extent that tradition is based on experience and observation, it cannot always be effectively rationalised. This is true of the values and institutions of western civilisation. There is a rational basis for the traditions. However, they are embodied in evolved institutions based on experience. The rationalisation is often not provided. In this context, it has been easy for the socialists/progressivists to attack many of the values and institutions of the system. Reason and the intellectual approach have formed the basis of the attack on tradition. The socialist/progressivist attack emanating from academia (and influencing the wider social and political culture) has operated by focusing on the counter-productive aspects of traditional values. These are exaggerated and distorted. The defects are not balanced against the benefits. The intellectual sets up his own view, which he then parades as objective fact or theory. His analysis often proceeds in violation of the basic dynamics of human nature and human interaction. Such analyses do not take account of the existence of other possible viewpoints. The accumulated experience of the ages is discounted. Tradition is important in any culture or civilisation. A wedding in, or a tour by, the British Royal family illustrates this factor. The outpouring of adulation and affection which the British Royal family enjoyed until recently, not only in Britain, but in parts of the Commonwealth and even in the United States, emphasises the yearning of people for traditional values. Continuity in an era of change is something which people need and desire. Part of the fall in the popularity and the standing of the monarchy is due to the abandonment of traditional standards of morality in the younger generation of royals. There are more worthwhile traditional values and institutions than the monarchy. The unfortunate aspect is that these have been subjected to unceasing attack and destabilisation by progressivists (so-called). The valuable traditional values and institutions which have been undermined did not have the pomp and pageantry of royalty to sustain them. Incidentally, this example demonstrates the importance of ritual, mystique and pomp to sustain institutions. The courts of law would not be the same without the accompanying traditions which the progressivists want to remove. They successfully did this in the case of the Family Law Court

- and this no doubt contributed to (without being solely responsible for) the problems in the family law area. Traditions develop gradually over centuries and keep on developing - a spiritual and cultural dynamic growing out of the endeavours, sacrifices, experiences and trials (when the cross is rejected) of a people who possess an inborn sense of their ancestry, religion, social customs, language, literature, music, games etc. This way "core values" are established and passed on from father to son/mother to daughter, like name or property, and become a way of life that is both virtuous and enduring. The essentially British traditions of family pride and integrity, dignity of the individual, law and order, "stiff upper lip" self discipline, tolerance of and respect for others goodwill (including eccentrics), tenderness towards the lowly and less fortunate, "playing the game" etc. These are spiritual, moral and cultural values deposited firmly in the minds of a people, real but indefinable, which can only be lived and experienced. However, they can be symbolised, the symbol becoming integral to the tradition itself, and the supreme symbol is the Queen, in whose office and person is gathered together all that is best in the nation. She is the embodiment of the nation's spirit and traditions, and what it stands for. The national flag (when it has a real meaning, as Australia's has) is a symbol too, albeit a lesser but still very important one. With respect to traditional institutions, it is not the institution itself that is the tradition, but the way the institution conducts itself that is the tradition. This applies to the monarchy, family, parliament, and the law. The courts are not the tradition, but the legal processes and standards are. The parents in each generation build the nation's traditions into their children's consciousness, and mental and moral attitudes and actions. Traditions give assurance of continuity and permanence to freedom. If a people neglects or despises traditions, or allows them to be undermined, they will lose their freedom very quickly and easily. Australians have never had to fight and bleed and die for freedom or its retention on their own soil. They need to hold their traditions (Anzac) in the very highest esteem - and their symbols (flag) if they are to have the will to keep their freedom and repulse the attacks being mounted against freedom. The western democratic order, as worked out in practical action, has involved the balance of competing factors. TS Elliot focused on the problem of change and continuity when he wrote of knowledge and action without purpose and meaning: The endless cycle of idea and action, Endless invention, endless experiment, Brings knowledge of motion, but not of stillness; Knowledge of speech, but not of silence; Knowledge of words, but ignorance of the Word. Ardis Whitman encapsulates the creative aspect of tradition which is responsive to change: "We must cherish our yesterdays, but never carry them as a burden into the future. Each generation must take nourishment from the other and give knowledge to the one that comes after."

12. Individual Freedom And Individual Responsibility


The importance of the concept and personality of the individual is crucial in the evolution of the western democratic order. The importance and the role of the individual has been analysed above. See sections 4 and 5. Supporters of law and order as well as the socialists and marxists have a fear of unrestrained individualism. The former emphasise the importance of the basic criminal law as the means of avoiding anarchy. Socialists and Marxists have a fear of the market and are antagonistic to ethics and the common law. They put into place ever increasing government controls which are directed primarily against owners of property (companies and individuals). These have the inevitable effect of increasing taxation, reducing the area of individual action, limiting consumer choice and creating a new serfdom based on the power and authority of politicians and bureaucrats; subject to influence from unrepresentative pressure groups of various types. The fear of unrestrained individualism is a real one. The interventionist answer, as experience demonstrates vividly to those who are willing to look at the consequences, is ever increasing and counter-productive regulationism. Classical liberal thinkers and libertarians do not address the issue of unrestrained individualism except to base their faith on consumer sovereignty. They also argue that the imperfect market in the vast majority of cases is unquestionably superior to the imperfect bureaucrat. The evolved western democratic order has provided its own answers based on a system of checks and balances. There are two major restraining forces. They are (i) the constitution and law, the roles and functions of which are analysed above (see sections 17 and 18); and (ii) the existence of values and institutions derived from religion and morality, which restrain the individual and provide a balance between individual freedom and individual responsibility (see particularly sections 8-11). The individualism of the western democratic order is one which seeks to free the individual from the suffocating embraces of government and at the same time to emphasise the importance of individual responsibility. An individual has to draw on his own resources in the great game of life, subject to a safety net placed by government for the genuinely poor and disabled. The importance of the individual in this context is summarised by Margaret Thatcher who (unlike many liberal politicians in Australia) is unafraid to voice these sentiments. These sentiments have brought her a great deal of abuse from the media, politicians and educationists but her commonsense has been recognised by the British people, who thrice elected her Prime Minister. (Quoted in Patrick Cosgrave, Margaret Thatcher, Prime Minister, London (1979) pp 215-216, 191). ... You have continually to assert that people have a moral responsibility which they must accept. Moral in the widest sense of the term. Moral responsibility for their own actions. We

must exorcise the idea that if you do something wrong it is not your fault but the fault of society around. ... The encouragement of variety and individual choice, the provision of fair incentives and rewards for skill and hard work, the maintenance of effective barriers against the excessive power of the state, and a belief in the wide distribution of individual private property ... they are certainly what I am trying to defend. Let our children grow tall (and some grow taller than others), if they have it in them to do so. We must build a society in which each citizen can develop his full potential, both for his own benefit and for the community as a whole: in which originality, skill, energy and thrift are rewarded; in which we encourage, rather than restrict the variety and richness of human nature. ... It is not my job, nor the job of any politician to offer people salvation. It is part of my political faith that people must save themselves. Many of our troubles are due to the fact that our people turn to politicians for everything. Freedom, subject to law and individual responsibility, is basic to the western democratic order.

13. Elitism And Merit


Elitism, privilege, authority and control by vested interests are focused on by Marxists and other socialists. Elitism and authority are inherent in any human organisation. The idea of a society of equals is a dream world, existing only in the minds and writings of those with little or no understanding of human nature and human history: a dream world of drabness, monotony, stagnation, poverty, non-fulfilment and non-achievement. Marxists and socialists themselves are highly elitist in their belief that they know, better than the people themselves, what is good for the people. They flourish in that most elitist of institutions, the university. Elitism, authority and privilege exist, but in the western democratic order there are a number of countervailing factors: i. the merit principle, ii. the concept of individual responsibility, iii. the control of public power by constitutional and legal safeguards, iv. moral values and v. the existence of a considerable degree of upward (and downward) social mobility. These may seem insignificant. Yet their significance becomes apparent when compared to other systems (past and existing). If they are less effective now than they were some time ago, the reason is the growth of government, the influence of the progressivists and counterproductive reform. Elitism today is a dirty word. It is undeniable that some forms of elitism are wholly reprehensible. Privilege and position derived from factors such as birthright, patronage or dictatorial political power are often examples of retrogressive forms of elitism. Such elitism excludes the able, the persevering and the deserving. It rewards not talent and effort, but power and connections. It creates a parasitic elite which stifles progress. In fact the beneficiaries of such a system do not deserve the name elite. But there are other more important forms of elitism which are indispensable to human progress. A society which does not reward effort and talent cannot progress. A progressive society needs to allocate tasks and responsibilities to those who are most competent to undertake them. It is also unavoidable that the performance of tasks and the discharge of responsibilities requires commensurate powers. But it is important to ensure that public positions are accessible to the most competent through fair and free competition and that powers are coupled with responsibility. To operate a system of productive elitism, it is necessary to have freedom to compete and the right to be judged on merit alone. Freedom and the merit principle operate to allocate tasks according to capability. The capable would not seek position without just reward. Therefore, just reward is an indispensable element in maximising the benefits to society.

Elitism in one form or another is unavoidable. The choice is between productive, merit based elitism and retrogressive elitism. Communist nations which set out to destroy all privileges have only succeeded in establishing the most entrenched forms of bureaucratic hierarchy. They have created impregnable bastions of elitism based not on merit or competition but on political power. In democratic societies there are attempts to prevent elitism, particularly in public institutions. Managers are being replaced by committees and Presidents and Chairmen are being replaced by "convenors". Nevertheless, in their actual functioning these bodies become stratified into a pecking order with some being "more equal than others". Decisions are taken but when things go wrong no one claims responsibility. Alternatively, they become ineffective and useless forums; nett burdens on the institutions they are supposed to serve. Elitism which rewards endeavour, and which places the most gifted in positions of responsibility, is the hallmark of a progressive polity. But elitism in this sense cannot be maintained without legal and moral sanctions. It requires guarantees of freedom and checks upon power to ensure that authority is not abused. In short, it can only operate within an institutional framework which promotes freedom and inhibits corruption. In a market order a certain form of elitism is unavoidable. A person whose abilities, skills or other qualities are in demand is likely to be more respected and more economically powerful. This, in itself, is not an evil as those who desire his service freely concede that position. It is the only way in which an impersonal market can operate to the benefit of all. The qualities that are respected may be very diverse, eg, skill, diligence, effort, honesty or even possession of capital wealth. People who possess such qualities provide services for economic gains or less tangible social gains such as reputation. The important factor is that in a market order elitism is unlikely to last unless the elite pays its price by some service desired by others. In a non market order (such as feudalism, socialism or fascism) elitism will persist where there is no such mutual benefit. Responsible and merit based elitism is desirable in public institutions, subject to one important qualification. That is, the power of public institutions should be limited. Today, officials who constitute the bureaucratic elite are gaining powers to control the lives of citizens to an alarming extent, reminiscent of the powers of the feudal barons. The first task is to define and limit the power of government. The second is to choose the right people to exercise the powers.

14. Competition In Australia


A description of the change that is occurring to the nature of competition in Australia circa 1996. The Dynamics Of Competition 14.2 Economic Competition On Winning And Fair Play 14.3 In Sport 14.1

14.1 The Dynamics Of Competition


The dynamic of competition encompasses three concepts. Firstly, the existence of a multiplicity of powers and forces, secondly, the existence of a goal or target and thirdly, in their striving in respect of that goal, an opposition (not necessarily of a destructive nature) between these powers or forces. Further, the existence of the goal or target proceeds from the existence of the multiplicity of powers or forces. These forces need not be personal. For example, man may strive against the elements, each competing for the mastery of the other. The elements may indeed strive against each other. Where there is no multiplicity of forces there are no targets or goals, because all things are already within the power of the one force. If there is only one producer of blue hats, he does not have a goal of gaining a 100% share of the blue hat production market because he already has a 100% share. If there are several producers, each has the goal of maintaining or increasing his share of the market. Thus, there is competition. Therefore, the existence of competition (be it only against inanimate forces) means the existence of targets. The existence of targets requires the maintenance of standards, such as efficiency, hard work, innovation, integrity and relevance. New technologies are developed, and improved goods and services are produced, entirely in response to the stimulus of competition. Competition is the factor which makes the maintenance of standards necessary, rather than merely desirable. It is therefore a critical preserver of standards. Another beneficial aspect of competition is the principle of alternatives, not only because they generate targets which require the maintenance of standards, but because the very existence of alternatives is a decentralisation of power. It allows scope for many individuals to act independently, bringing their different skills, views, preferences and ideas to the matters at hand. Furthermore, the existence of alternatives allows for that personal mobility

which insulates the individual from particular forces or circumstances which he does not regard as conducive to his personal welfare. It is clear then, that competition can be enormously constructive, although it can also be destructive if it turns to the mutual destruction of competitors. That, however, is merely to say that, like most good things, it is capable of being turned to abuse. The only alternatives to competition are monopoly and oligopoly (which is the darker side of co-operation). These systems are incapable of fostering the maintenance of standards (since this is not necessary under monopoly and oligopoly) and they operate against the principle of personal independence. Co-operation can be beneficial, but so often it is beneficial only for the erstwhile competitors and harmful for the market. The dark side of co-operation is the collusive "deal" where the co-operators lose their independence and market standards drop. Co-operation should not be elevated to the level of the market. It needs the external discipline of competition in order to realise its full potential. Therefore, co-operation is appropriate only within competitive units. The contrast in attitudes towards competition in sport and competition in the economy or education is one of the strange features of modern society. It sometimes appears that competition in sport has grown in intensity (with standards of sporting behaviour in decline), while competition in the marketplace and in the classroom has become frowned upon. This has happened, in part, because "progressive" social planners struggle against others in the struggle to meet standards. The "new class" of social engineers has trained its artillery on areas of power and influence. Sport is not yet one of those areas, but education certainly is. In their efforts to cramp competition in the marketplace, they have willing allies in the firms who are already established because their interests are served by any restrictions on the entry of new competitors. Attitudes to competition are confused by misplaced analogies and false ideas about the nature of competition in Darwinian evolution and in economic systems. Darwin's theory was widely interpreted as a picture of nature "red in tooth and claw", a "knock down drag out" contest leaving only the strongest and fittest standing. But the notion of "each against all" in nature is false. Lions depend on the survival of the species that they prey upon and they do not in any immediate sense compete with each other. Within the extended family of the pride of lions there is a high degree of co-operation in catching and sharing the prey. Groups of lions may compete with each other, and with other predators who are "in the market" for the same prey but success in this competition depends on skill and efficiency in hunting, not on a physical clash of the rivals, like a battle. Occasions where two starving animals compete for the same piece of food (and hence survival) are not typical, though they can occur under conditions of severe scarcity. Similarly, some kinds of needless competition can be created in economic and social systems where state controls frustrate the market mechanisms that balance supply and demand. This is described next in education.

14.2 Economic Competition


As with the normal state of affairs in nature, economic competition is not appropriately described in military terms and it is a bad metaphor to speak of "the conquest of a market". John O'Sullivan pointed out: "competition suffers greatly from confusion between its colloquial meaning and its technical economic usage. We are all aware of the psychological tensions of self-conscious competition in sport, say, or school examinations. Socialist theory encourages us to transfer these emotions to capitalist competition. But such tensions and rivalries play almost no part in the impersonal process of free market competition in which entrepreneurs, seeking to sell their goods and services for the best price, are rarely aware of one another's existence." ("Preaching To The Converted" in Quadrant, April (1983) p 77). It is especially misleading to think that sellers are in conflict with buyers. Both parties to a voluntary transaction can be well pleased with the deal. Survival of a firm in an open market depends on keeping the customers happy, which is the very reverse of exploitation. The latter can usually only occur when a monopoly is created by state intervention, or by unusual circumstances such as geographical isolation. In contrast, open markets ensure that entrepreneurs have to compete to provide better or cheaper goods and services. This argument does not depend upon every market being perfectly open, nor does it ignore the possibility of "sharp practice" on the part of the sellers or buyers. The point is that competition in the marketplace tends to lead in directions that suit consumers and the common good. Force and fraud can occur in open markets, and here the state has a valid function to provide avenues for legal redress if properly negotiated contracts are not met. By contrast with the incidental and hazardous nature of malpractice in open markets under a strong legal system, force and fraud are endemic in markets that are monopolised, whether by the state itself or by state patronage of private interests. Competition in closed markets tends to shift from pleasing buyers to maintaining or extending monopoly powers which enable firms to pay very little attention to the wants of consumers. One of the essential aspects of competition as it occurs in war and sport is lacking in the marketplace. This is the "zero sum" result where gains by one party can only be obtained at the expense of the competitor. "To the victor the spoils." A win belongs to the winner and the other side has to take second place. This is the mentality of the Marxist class war and it has been built into industrial relations where trade unions attempt to do better for their members at the expense of the capitalists instead of working for productivity gains that would make everyone better off. As noted above, the "zero sum" does not apply in economic affairs when both the seller and buyer are happy with the transaction. The situation in education is more complicated because a "zero sum" aspect can be presented where "coming top" is excessively valued for its own sake, or where material gains follow from good results. The mentality of the race course or the football field does intrude into education, and achievers have an incentive to perform in order to obtain high marks.

Competition has a more rational justification when high performance is required for access to prized employment opportunities or higher education. But a "cut throat" aspect of competition in this situation is produced by scarcity of places in higher education, and this is due to state controls on the supply. This "good" is provided free of charge and demand has to be artificially kept under control by rationing. Many young people are denied access, many choose to take courses that have little intellectual content or practical value and many have to settle for their second or third choice for a course. Higher education should be available to all who reach an adequate standard and have some positive motivation to pursue a course of studies. This situation could be achieved by charging fees so that supply could adjust to demand at the level of individual courses. School leavers who do not value higher education enough to pay for it would do something else and children from poor families could be helped in various ways, ie means-tested scholarships, low interest loans, or loans to be repaid during subsequent employment. At the same time, competition for entry would shift from the struggle against others to the struggle to meet standards. The "new class" of social engineers has trained its artillery on standards as well as upon competition, and it is standards that need to be protected rather than competition. This means that, among other things, external assessment is required. The concept of striving to improve oneself and one's capacities in relation to standards of excellence could, to some extent, displace the relatively crude notion of competition against others in the classroom. This concept also has a place in sport, as described below.

14.3 On Winning And Fair Play In Sport


One of the most alarming features of competitive sports for children is the prevalence of parents on the sidelines who urge their children to win at all costs, and berate them without mercy if they "fail". With this preparation it is not surprising if foul play and unsporting behaviour are common at higher levels. Roughness verging on thuggery is not particularly surprising in body contact games, though even there it can be controlled by strict and wellpoliced rules, backed up by public opinion against violence. More alarming is the decline of standards in sports such as cricket and tennis which traditionally maintained high levels of decorum. Television, and the endless replay of "sensational" incidents, ensures that the outbursts and tantrums of leading players are broadcast around the world. Youngsters promptly emulate some of the worst aspects of their heroes' behaviour. Much has been made of a statement attributed to the legendary American football coach Vince Lombardi, "Winning is not everything, it's the only thing". This has been widely interpreted as a "win at all costs" attitude but in fact Lombardi was talking about the game that the sportsman plays with himself, that is, the endless process of working to improve, develop and perfect the player's performance. Similarly, Lombardi perpetuated the maxim "The team that won't be beaten can't be beaten". Again he referred to the mental attitude of the players; the team that won't be beaten may end the game with less points on the

scoreboard, but if they keep doing their best to the end then psychologically and morally they are not losers. Of course, this is a restatement of the original spirit of the Olympic Games, that it is taking part that matters, not winning. Much could be said about erosion of this spirit in the modern Olympics. It is also the spirit of the old poem: For when that one Great Scorer comes To mark against your name, He'll mark not that you won or lost. But how you played the game. The state of foul play in sport is uneven, with some sports going downhill and others improving. Rugby League is a game especially prone to mayhem due to the fact that it is a body contact sport and to score one must literally crash through the enemy line. Not long ago, many of the forwards were professionally employed on week days as pugilists and standover men. This situation has changed in the last twenty years for various reasons. There is more emphasis on speed and fitness, so that teams cannot afford the luxury of thugs unless they can keep up with the play. Trial by video ensures that virtually everyone in NSW is subjected to slow-motion replays of crippling fouls on star players, where previously only people at the ground (and not all of them) would have noticed such events. The NSW League has made spasmodic efforts to clamp down on violence and this has clearly had some effect. Jack Gibson imported the Vince Lombardi attitude from the US and deliberate foul play has been practically eliminated from teams coached by Gibson and his imitators. This is most noticeable at Parramatta where Gibson and two of his protgs have coached since 1976. The Lombardi approach pays off in pragmatic terms; under his guidance from 1959 to 1968 the Green Bay Packers took out seven championships. Similarly, Parramatta since 1976 has been the most successful club at all grades by a fair margin (1987 being an exception). Fair play can be encouraged by appropriate rules of the game, backed up by strong referees to police the rules and appropriate penalties for transgressors. Tendencies to indulge in foul play can also be inhibited by community rejection of such tactics.

15. The Entrepreneur, Risk Taking And The Profit Motive


One of the more important players in the free market is the entrepreneur. In the free market the skills and risks which the entrepreneur is willing to take can be fully exploited by both producers and consumers to their advantage. Entrepreneurship manifests itself in many ways. Entrepreneurs start businesses, develop new procedures for the production and distribution of goods, act as middlemen between markets and are a source of information. The entrepreneur is also characterised by an alertness for opportunities which have been ignored or unseen by others. These opportunities are almost always accompanied by some profit. The perception that a profit can be made by a market action is perhaps the prime mover of the entrepreneur. To buy at a set price and then sell at a higher one and the accompanying freedom to keep the difference as reward for his efforts provides the individual with the proper incentive to utilise the skills and abilities, along with a calculated risk, which make an entrepreneur. Moreover, if the entrepreneur is to function at all, it is only by the absence of stifling government restrictions and regulations, which may inhibit any pursuit of perceived opportunities. The reference above to government restriction does not exclude the need for laws to prevent fraud and promote competition. (See sections 5.3, 16 and 26). The benefits which society gains from the actions of entrepreneurs are generally three-fold: Firstly, the entrepreneur, by learning from past mistakes, often develops better ways of utilising resources. This means greater efficiency and often cheaper manufacturing methods which are introduced into the production process, thus saving resources and providing a relatively cheaper good to the consumer. Secondly, new resources are discovered. For example, in the last one hundred years man has seen electricity provided by coal, then water and now, by nuclear power plants and solar cells. Finally, it is through innovation, chance and alertness that much of our current technology has been produced. It is no mistake that the freest nations of the world have enjoyed supremacy in the field of technology, whether it be medical, biological, chemical, etc. Again, it must be said that these three benefits are available through the presence of those who are alert, who are risktakers and who are able to link markets for a profit. Some may believe that many of the more restrictive nations of the world also possess the same achievements as the freer western countries. A closer look often reveals that this is not true. In the vast majority of cases it is the West that has provided the Communist countries with what they possess. It is no secret that Henry Ford built many of the transport companies that are found in the Soviet Union today. It is no secret that the period of detente during the mid-1970's was a period in which the Soviet Union gained much needed technology from the United States and Western Europe. Manufacturing processes in the Soviet Union were often inefficient and labour intensive, the costs of which were invariably passed on to the Soviet consumer. It is also true that much of the benefits of technology of totalitarian nations is not available to their citizens, but is reserved for party and bureaucratic leaders or for the generation of export income. This was exemplified by the need of the wife of Andrei

Sakharov to be treated for a heart condition in the west. All the cases provided above are maintained by the inability to link markets, discover new production techniques, to do as one pleases, or to think outside the boundaries of official dogma. In other words, the absence of entrepreneurship. The market order tends to generate goods and services to cater to the demands of the customer. More precisely, individual producers and sellers produce the goods and services, acting on the basis of their appraisal of the wants of the customers. If they are correct in their judgement then they will prosper, if not, they will not attract buyers and they will fail. Within a free market order, entrepreneurs have to take risks because the last word lies with the potential buyers, the consumers. Ludwig von Mises pointed out in The Anti-Capitalistic Mentality, Illinios (1972), "In the market of a capitalistic society the common man is the sovereign consumer whose buying or abstention from buying ultimately determines what should be produced and in what quantity and quality". This involves an element of risk for the entrepreneur and in return for the risk he demands a reward this is the profit margin. Profits serve the dual purpose of rewarding the successful entrepreneur (that is, the person who caters best to the wants of the public) and providing capital to develop the business. This may take the form of investment in updated plant for increased efficiency and lower prices, it may involve expansion into new products and new markets, it may involve the takeover of less thriving firms in order to put their resources to more productive use. Profits cannot be obtained by exploitation, unless the market is not free (a situation considered below). They are obtained by bringing the factors of production together in a creative manner that makes the resulting product worth more in the market than the sum of the individual components. In addition, the entrepreneur may find new ways to satisfy the wishes of consumers. The entrepreneur, within the private enterprise system, has been a target of attack. Entrepreneurs are supposed to be driven by unbridled greed to maximise their profits at the expense of workers and consumers. They use monopoly powers to exploit the workers with low pay and hazardous working conditions. And in modern times they have perfected various means of exploiting consumers as well, especially by advertising and control of the markets to force people to buy things that they do not really need or want. This overlooks the dimension that entrepreneurial impulse is diverted to antisocial ends when markets are distorted by law and political interference. Everyone acts as an entrepreneur to a greater or lesser extent in making use of their resources and assets to satisfy their wants and to do the best for themselves. In open markets entrepreneurs do the best for themselves by providing better or cheaper goods than their rivals. But another way to improve their position, and to minimise their risks, is to obtain government support to close the market to other competitors. The result can be a state-protected monopoly or a market where some firms have favoured status, for example by tariff protection against foreign competitors. Under these circumstances the monopolists can indeed exploit the consumers but this so-called "monopoly capitalism" is not a product of free market forces. It is a result of those forces being eliminated or reduced by government edicts. Where governments are prepared to make such edicts then a great deal of entrepreneurial flair will be diverted into lobbying and other activities that serve political purposes to obtain more favourable trading conditions, at the expense of the people. This results in guaranteed profits without the risks of the open market.

The extreme form of the closed market is the socialist state or the state-run monopoly. Here the profit motive is absent, as is consumer choice. Those who see profits and market competition as the root of evil in the capitalist system close their eyes and minds to the inefficiency of state monopolies, and the way that consumers are invariably in a worse and more exploited position. Glaring inequalities persist because people with the right political or bureaucratic connections obtain access to the best of everything that is available. This is explained by the fact that the entrepreneurial impulse is not eliminated in state-controlled systems, it is simply turned to ends other than satisfying the wishes of consumers. At the upper levels of state-controlled systems (including the public service in western democracies) people struggle for power and influence, with a tendency to empire building. At lower levels the entrepreneurial flair of the "common man" is diverted to minimising the expenditure of effort or creating alternatives to productive work (ie restrictive work practices). The socialist attack on entrepreneurs, profits and open markets has been supported by the conservative and capitalist vested interests which were threatened by the transition from feudalism to democratic capitalism, or who fear the integrity of market forces. The industrial revolution ushered in a "market society" where individuals were to some extent forced to make their own way in the world, replacing the "status society" where people tended to take the rank and station of their parents. This created a great deal of tension and resentment among members of the upper classes who did not have the qualities required for success in the new system. The result is a highly conservative tradition of thought that sometimes nearly matches the extreme left in its hostility to capitalism, profits and the market order. There is also a strand of Christian objections to profits, or "excessive" profits, especially in the form of interest on investment, condemned as "usury".

16. The Role Of Government


An explanation of the role of government by Dr M Cooray retired professor of constitutional law. 16.1 The Rise Of Western Civilisation 16.2 The Liberal Theory Of The State 16.3 Working Out The Limits Of Government 16.4 Philosophers, Common Sense And The Cumulative Experience Of Mankind

16.1 The Rise Of Western Civilisation


There are many interconnected causes responsible for the rise of Western Civilization. The overriding perspective is that it is a system which combines freedom with responsibility. A set of evolved values and institutions struck a balance between freedom and order, the role of government and the role of the individual, liberty and licence, freedom and responsibility. Restrictions on freedom operated through a Constitution, law, political institutions and social sanctions. The law and social sanctions were based on Christian principles and values (similar to the principles and values of other world religions). The twin concepts of freedom and responsibility led to the great developments which took mankind from the age of the horse and buggy to travelling in space in the lifetime of one individual the last one hundred years has seen more change and development than had taken place through the entire period of man's inhabitance of this planet. The previous one hundred years is a culmination of longer process of change going back to the pre-renaissance period, which witnessed human development in the context of a gradual and slow increase of individual freedom. There is a close connection between freedom and development. The freedom of western Civilization was never the freedom of the wild ass. Law and other factors provided controls on individual responsibility. These restrictions are being undermined. (This is not to defend every aspect of the earlier law and social morality, which was in some respects harsh and needed adaptation to suit modern conditions). This carefully constructed system has been subjected to increasing attack and is being undermined. Law in the last few decades has increasingly sought to control individual activity in situations where freedom had earlier provided opportunity for initiative and action. There is an inter-connection between the role of government, the role of the constitution and the role of law in the rise of western civilisation. The following analysis examines the role of these three institutions in the history of western development and the liberal philosophy which influenced and permeated them at every turn.

16.2 The Liberal Theory Of The State


The essential characteristic of the liberal theory of the state is the doctrine of jurisdiction. That is, the idea that there is such a thing as a limited area of power and authority for the state a delimitation of its proper sphere, beyond which, it is improper for the state to trespass. This doctrine is essentially the sole preserve of liberals. Only liberals seriously think about it. Anarchists reject the state altogether. Socialists are simply not concerned about limits of state power. Modern socialist governments may introduce market based reforms. The motivating factor is that of economic efficiency and not appreciation of the importance of individual liberty and limited government. The first principle of the liberal theory of the state is that the state is not superior to other institutions. That is not to say that the state is an inferior institution. However, the state will generally be inferior to other institutions in the respective fields of special competence of those other institutions. The state is inferior to the church for the purpose of defining moral values or the conduct of ecclesiastical government. The state is inferior to the Australian Cricket Board and the Australian Medical Association in relation to cricket and practice of medicine. This follows not merely on grounds of efficiency or expediency but also as a moral principle. The state is simply one social institution amongst many. Each has its proper sphere. The state has its proper sphere. It should not appropriate the spheres of other institutions. This might be described as a rule of internal management: a presumption that each institution is the appropriate authority for the management of those matters which pertain to it. The second principle of the liberal theory of the state is that the state ought to respect the fault principle. This principle is affirmed in Chapter 29 of Magna Carta and may be resolved into a series of further propositions. The state ought not to punish or inflict any detriment upon any man except on the basis of his fault, strict liability being applicable in exceptional circumstances. See section See section 18.2. The state ought not to reward those who are blameworthy for their blameworthiness. The state ought not otherwise promote blameworthy conduct or attach disincentives to virtuous conduct in any way. If these principles were observed within the welfare sector, that sector would be structured very differently. Welfare would be restricted to the genuinely needy. The concept of "no-fault" divorce is also directly contradictory to this principle. The third principle of the liberal theory of the state is the supremacy of law and adherence to established, proper procedures. See section See section 18.2. The fourth principle of the liberal theory of the state is that the power of the state ought to be fragmented and distributed amongst many centres. This principle is founded on the observation expressed in Lord Acton's aphorism that "Power corrupts : absolute power corrupts absolutely". It is by minimising the concentration of power in any one centre and by setting up many alternative, counterbalancing centres of power, that the standard of "everything open and above board" is more nearly attained and opportunities for corruption are minimised. See further, See section 17.4. The positive liberal theory of the state arises out of the problem of the preservation of liberty. Liberalism eschews the absolute state, affirming the superior value of individual liberty but it

also recognises the dangers of anarchy in the context of a human race which is tainted with evil. The assertion that the human race is tainted with evil, is intended to convey the idea that there exist standards of virtue and perfection and the human race as a whole falls short of these standards. The liberal philosophy is sceptical of every claim that humanity or human nature can be made to be virtuous. It is the very suspicion of evil, and the belief in the fallibility of those who claim to be both virtuous and all-knowing which directly drives liberalism to advocate the limitation and decentralisation of power. Lord Acton's aphorism bears repetition ("Power corrupts: absolute power corrupts absolutely"). Liberalism affirms moral values and opposes relativism. It does not succumb to the false dogma of moral neutrality. It is pertinent at the conclusion of a discussion of the role of the state according to liberal theory, to compare the liberal theory with some current tendencies in state practice. Firstly, the current reform mindset focuses upon problems and provides sweeping solutions without regard to their wider ramifications. In this way, the fine adjustments which the common law has made between rights and duties have been overturned in vast blocks. The balance of order has been upset. For example, in the field of family law, attention was given to the traumas undergone by litigants in efforts to prove fault. "No-fault" divorce was introduced as a solution without consideration of the effect of such a measure upon the status of marriage and the rights of innocent parties. The liberal system by contrast, requires that adjustments to the system should be carefully thought out so as to be consistent with the underlying rationale of the system. Furthermore, because of the complexities and unforseen factors involved reforms should be introduced slowly and incrementally. Secondly, the fault basis of law is being deeply eroded (as in the family law example). See section 18.2. Thirdly, the state has arrogated to itself power to determine and control and even to extinguish the independence of other institutions. An example is the many regulations placed on the medical profession. Furthermore, it arrogates to itself the power to redetermine social mores (as in Anti Discrimination legislation). Fourthly, the state frequently exempts itself from subjection to the law, confers favours, legislates in respect of particular persons (for their advantage or disadvantage), and denies due process to accused persons (as in the case of the disciplinary procedures of various Anti Discrimination Boards). Fifthly, the state is abolishing the distribution of powers by undermining the system of checks and balances. The delegation of wide ranging legislative power to the executive, the grant of judicial power to politicised executive tribunals and the politicisation of the public service are examples. The modern state greatly exceeds the liberal ideal of limited government. To a significant degree it has become the destroyer of liberty. See further section 26.

16.3 Working Out The Limits Of Government


The suggested role for government is as follows: To provide methods by which the energies of the many millions of individuals as well as various private and public organisations could be harnessed to make possible human advancement and development. The government has a duty to defend the nation from external attack, preserve law and order, establish a degree of regulation essential for interaction between people and institutions, and provide welfare for the genuinely poor, the under-privileged and the disabled. Milton Friedman has this to say about the role of government in Capitalism and Freedom, Chicago (1962): "There is no formula that can tell us where to stop. We must rely on our fallible judgment and, having reached a judgment, on our ability to persuade our fellow men that it is a correct judgment, or their ability to persuade us to modify our views. We must put our faith, here as elsewhere, in a consensus reached by imperfect and biased men through free discussion and trial and error ... A government which maintained law and order, defined property rights, served as a means whereby we could modify property rights and other rules of the economic game, adjudicated disputes about the interpretation of the rules, enforced contracts, promoted competition, provided a monetary framework, engaged in activities to counter technical monopolies and to overcome neighbourhood effects widely regarded as sufficiently important to justify government intervention, and which supplemented private charity and the private family in protecting the irresponsible, whether madman or child - such a government would clearly have important functions to perform. The consistent liberal is not an anarchist. Yet it is also true that such a government would have clearly limited functions and would refrain from a host of activities that are now undertaken by federal and state governments in the United States, and their counterparts in other Western countries." What is the basis on which regulation, which is deemed to be essential may be determined? What should governments do and what should governments not do? What are the limits on and what is the role of government? These questions cannot be conclusively answered by reference to theories or concepts so dear to the mind of regulators and philosophers. There are many different perspectives and factors which provide assistance in the search for the nature and content of the permissible restrictions and freedoms, such as: 1. imperfect but necessary efforts of philosophers, 2. common sense, 3. the cumulative experience of the human mind and human conduct, 4. limitations on government power in a constitution,

5. the rule of law (including the fault principle), 6. democratic institutions and the political sovereign. A brief explanation of (i) to (iii) follows; (iv) to (vi) are analysed in sections 16 to 18 and 4.

16.4 Philosophers, Common Sense And The Cumulative Experience Of Mankind


Philosophers (including religious leaders) have been immensely influential in moulding human perceptions of the role of humans in society and their relationship with government. Philosophers have been influential in the development of the western democratic order. The democratic order has no Marx and Engels. There is no one theory which could be said to constitute its basis. The values and institutions of the tradition are essentially the product of an historical evolution in which philosophers were influential. This is in striking contrast to Marxist and socialist philosophers who believe that they understand the scheme of human interaction, have the answers to complicated human problems and wish to use the police power of the state to impose their ideas on society. Constitutional developments in Britain and in the United States form the basis of modern constitutionalism, the rule of law and the civil liberties, with the culmination of progressive removal of the arbitrary powers of the Crown. They constitute attempts to place limits on the wide-ranging power of the executive. This was a progressive and evolutionary development. The compromises which were made at various stages in history were responses to grievances and problems which arose in relation to particular and concrete political disputes. They were not based on philosophies, a theory or specific documents. This is not to deny that writers, theorists and philosophers were not influential. Political and constitutional crises invariably led to pamphleteering and writing. Some of the grievances were fuelled by the pamphlets. The consequent settlements were perhaps influenced by the writings. As S Ratnapala says, "But the grievances related to felt conditions and the responses were those to which men had been drawn throughout history when faced with arbitrary or despotic government". S Ratnapala, The Constitutional Lawyer and the Protection of Liberty, unpublished paper, p 7. The significant influence of the JudeoChristian ethic and moral values is considered in section 8. The answer requires more of a "common sense" rather than a philosophical approach. "Common sense" is more complex than the crude hunch or so called intuition. It is a characteristic of the human mind which assimilates countless experiences and suggestions. These experiences and suggestions are so numerous that they cannot be reduced or articulated into explanations. Nevertheless common sense is based on real cumulative experience which the human mind translates into propositions. Intellectuals today dismiss anything that cannot be explained. The truth is that as a consequence of the infinite variability of circumstances,

not everything can be explained and articulated by verbal means. This is particularly true in the area of human action and conduct (as distinct from the area of investigation of the scientist). This does not mean that the human mind does not schematise experience and that all opinions which cannot be explained are unfounded in reality. The truth is often the converse. It is for this reason that "common sense" is entitled to respect. The accumulated experience encapsulating the wisdom and foolishness of the values and institutions of the western tradition provides guidance. The role of philosophers and the importance of common sense are briefly referred to above. The common law statute law delineation of freedom as well as the basis on which legislative change could legitimately be introduced are relevant in this context. See analysis in section 18.5.

17. The Role Of A Constitution


An explanation of the nature and function of a Constitution as part of the government of a country. 1 Constitutionalism Means More Than Just Having A Constitution 2 What Does A Constitution Contain? 3 Function Of A Constitution 4 How Can Power Be Limited By The Constitution? 5 The Betrayal Of The Commonwealth Constitution By The Australian High Court 6 Extra-Constitutional Limitations On Government Power

17.1 Constitutionalism Means More Than Just Having A Constitution


There is a fundamental contrast between constitutions which limit power and constitutions which exist at the pleasure of those in power. Most countries have a basic document of government called a constitution. There were constitutions in the former USSR, other former communist countries, the former South Africa, China and current communist and other totalitarian regimes, where governments and legislatures professed or profess to function in accordance with their constitutions. The Constitutions confer wide ranging power on and discretions to governments to suppress and oppress their peoples. Can it be said that constitutional government has prevailed or prevails in these countries? Something more than the existence of a constitution is required for an effective system of constitutional government. Further analysis is required to exclude sham constitutionalism. The constitutional system of government exists where a constitution is supreme and regulates the exercise of power by the main organs of government, with the consequence that every act of ministers and public servants is carried out in accordance with the law and every such act is authorised by the law. But this formulation too requires qualification. Governments and legislatures may act in accordance with law, but the content of law may be harsh and unjust. Laws may confer wide and unfettered discretionary powers over fundamental or important matters which affect individuals or institutions, giving power to governments to oppress their subjects. Apart from the above there are four essential underlying factors of a constitutional order. They are: i. a system of elections held reasonably frequently, based on universal adult franchise, such elections not being rigged or manipulated by the government of the day;

ii. existence of rights of freedom of expression, freedom of person and freedom of property iii. a judiciary separated from the executive and the legislature which has power to control unlawful acts of the legislature and the executive, and which in fact exercises this power; iv. limitations and controls on use of wide discretionary or emergency powers. See also section 4.4. An organised state may have a constitution, but constitutionalism means something more than just having a constitution. It means government subject to a just constitution and body of law. Thus, it could not be argued that constitutionalism prevailed in countries such as the former Soviet Union merely because they had a constitution. There are also countries which maintain a facade of constitutionalism. For example, in Singapore, there is a system of constitutional government (government in accordance with law and the constitution, Parliament, Cabinet system and a judiciary) but with numbered election ballots (so that the way an individual votes can be identified), a tame judiciary and permanent emergency powers legislation. In South Africa under apartheid there was a constitution and respect for it, a separate judiciary, but no universal adult franchise and permanent exercise of emergency powers. In Sri Lanka and India under Mrs Gandhi, there was a system of constitutional government co-existent with a permanent state of emergency. When there is a state of emergency the government can by-pass Parliament as a law making body and create emergency regulations which confer wide powers and govern under these powers.

17.2 What Does A Constitution Contain?


The Constitution is the birth certificate of a nation state. It is the basis of legal authority. All law is derived from the Constitution. The Constitution establishes a framework under which law is made and administered. The Australian Constitution in the tradition of all liberal democratic Constitutions establishes the three organs of government i. an organ to make laws, ii. an organ to administer and execute the laws, and iii. an organ to adjudicate on legal disputes between citizens and citizens, between citizens and state and between state and authorities inter se. The legislative organ in Australia is Parliament, consisting of the Queen, the House of Representatives and the Senate. The executive arm (commonly called the government) consists of the Queen in whom executive power is formally vested by section 61 of the Constitution. In practice, executive power at the apex is exercised by the Prime Minister and Cabinet who delegate many powers and functions to the public service. The High Court of

Australia stands at the apex of the judicial system, with a descending order of courts at various levels. The powers of the Queen under the Constitution are generally exercised by her representative, the Governor General. The powers which the Constitution vests in the Queen and the Governor General are exercised in accordance with conventions. This means that in practice these powers are generally exercised by the Prime Minister, the Cabinet and the public service. But there are exceptional situations when reserve powers of the Crown are intended to be invoked. See LJM Cooray, Conventions, The Australian Constitution and the Future, Sydney (1979) chapter 2. The judicial arm consists of a hierarchy of courts.

17.3 Function Of A Constitution


The argument is often made that the present Australian Constitution is out of date. The question is asked: what is the relevance of a constitution drafted in 1900 for the present? Yet the United States Constitution was drafted 200 years ago and it still endures. The mere fact that a constitution was drafted almost one hundred years ago does not mean that it is outdated. A constitution merely deals with limitations on power. The need for limitations on power does not change from year to year or century to century. Power corrupts and absolute power corrupts absolutely. The critics of a constitution fail to understand the purpose which a constitution is intended to serve. It is not intended to provide a recipe for efficient government or for government which can transform the society along socialist or capitalist lines. These are matters within the area of government and must arise from the interaction of people, government and many other factors. A constitution is concerned with the allocation of powers - what the legislature, the government and the judiciary may or may not do. A constitution is established to restrict the possibility of abuse of power by those exercising governmental functions, whilst providing a reasonable area for state activity. The best short statement of the rationale of constitutionalism is that of James Madison, the most influential draftsman of the US Constitution. "But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." (Federalist 51.) Hayek in his analysis of modern democratic government starts from the premise that constitutionalism is identifiable with liberty and limited government: "When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since. Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the

legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. "(F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Order (1973) page 1). Although Australia has a constitution which is conceived in the liberal tradition and is meant to be the supreme law alterable only by the people according to prescribed procedures, it has undergone substantial changes at the behest of legislative majorities sanctioned by the High Court, claiming increasing powers for government to act in the public interest. The High Court's attitude to the interpretation of the Constitution has reflected a departure from constitutionalism to the idea that a constitution should be responsive to needs of the time. This approach which is based on a misunderstanding of the role of a constitution is threatening to create a form of absolutism. Hayek makes the following comment about modern constitutionalism which is relevant to Australia. "Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. And indeed, what function is served by a constitution which makes omnipotent government possible? Is its function to be merely that governments work smoothly and efficiently, whatever their aims?" (F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Orders (1973) p 1).

17.4 How Can Power Be Limited By The Constitution?


There are three methods by which Constitutions seek to limit the area of power of the three organs of government i. through a Bill of Rights, ii. through the system of checks and balances, and iii. through the device of federalism. Though (ii) and (iii) are treated separately, (iii) is an application of (ii). A Bill of Rights A Bill of Rights as contained in the Amendments to the US Constitution, provides an admirable philosophical statement, for application in concrete situations, of the basis on which the power of legislatures and governments may be limited. A Bill of Rights places limitations on the powers of government and creates an area of freedom for individual action.

The problem with the US Bill of Rights has been that after the New Deal, it was construed by judges who have re-interpreted its philosophical basis. The US Bill of Rights has provided some significant limitations on state power in the US. In the hey-day of American liberalism, if not for the Bill of Rights, there would have been far more interference with individual freedom, with the consequence that the US would be a less free place than it is today. The basic problem with the proposed and rejected Murphy, Evans and Bowen Bills of Rights was that they did not limit government power. What provisions they contained for limiting power were cancelled out by provisions which enabled government organs to avoid the effect of these limitations. The limitations on power were rendered nugatory. These Bills were Bills of Rights in name only and were frauds perpetrated on the public. A Bill of Rights provides rights to individuals to protect themselves from the encroaching power of government. Not only did these Bills not contain effective provisions to limit government power, they provided means by which governments could extend and expand their power. Checks and balances A true liberal system contains many devices for division of power in society through checks and balances. This system operates through i. the law and the Constitution and ii. interaction between individuals and institutions in a free society. (ii) is analysed in section 17.6. The following analysis focuses on the first factor, which operates through a Constitution. The distribution of power among organs through a system of checks and balances in the Constitution and law "The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another." Montesquieu, The Spirit of Laws, B XI, Ch 6. After defining the three kinds of powers of the state legislative, executive and judicial, Montesquieu enunciated and justified the principle of separation of powers. The principle is founded on Lord Acton's assumption, "Power corrupts; absolute power corrupts absolutely". The concentration of all powers into the hands of one individual or group must place them in a position to abuse that power and thus to instil fear into the common man. Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard liberty against the abuse of power, it is necessary to distribute powers into many independent (or at least semi-independent) centres. When this is done the man who holds power must fear the reaction of other power centres to any abuse of power by him. He must fear the capacity of his potential victims to seek the aid of his rivals. He must especially fear the reaction of his rivals to any attempt by him to expand his powers at their expense. His ability to hide his own transgressions or to intimidate his opposition must be less. He will be vigilant to protect the proper sphere of his own office from encroachments. His policies must

be acceptable to the community and the temptations which beset him must be less. He will be more likely to take pride in the regular and proper conduct of the duties appropriate to his office. Furthermore, the distribution of power enables the authorities responsible for each power to be constituted in different ways so as to suit the particular nature and demands of each office. For example, the judicial power requires a depth of technical legal learning and a mind trained in the processes of adjudication and legal reasoning, a professional integrity and ethos and the existence of a professional corps which is not necessarily appropriate to executive or legislative power. In the same way, the demands of executive government for leadershipresolve, strength, dispatch, continuity and consistency require one person or a small compact group, while the requirements of legislation for wide and extensive consideration and generality of conception would demand a legislature consisting of many, with representatives of every section of the nation. Because each kind of power requires different methods, the combination of them in one person or body must suffer the detriment of the unsuitability of that body, constituted in one way, to the methods required for the proper use of each power. A system of checks and balances retards both corruption and the improper conduct of the several affairs of the state. The system of checks and balances begins with the separation of judicial, executive and legislative powers, as Montesquieu envisaged. However, it goes much further. The system of checks and balances operates also within each branch of the state, in the division of powers between state and federal governments and the distribution of powers between the state, other institutions and individuals in the community. Within the legislative sphere, power is distributed between the component parts of Parliament (Senate, House of Representatives and the Governor-General). The power of each House is diffused amongst its many members. A majority is necessary for the House to act. Each House has a different constituency and/or is elected in by different methods. Parliament in general is elected by the country at periodic intervals and is therefore constrained by the necessity of being responsive to the electorate. Within the executive sphere ministers, besides having the duty to govern in the interest of the whole nation, are obliged to work with an impartial public service, where such traditions of impartiality prevail. (The principle of impartiality has been undermined in recent times by governments' policies of politicisation of public services.) An impartial public service acts as a brake upon favouritism, corruption, discontinuity, nepotism and inefficiency. On the other hand, executive decision-making and policy determination remains in the hands of the ministry. Within the Westminster system the ministry is further constrained by the reserve powers of the Crown (which may, for example, be exercised to dismiss a ministry which attempts to govern unlawfully) and, more immediately, by ministerial responsibility to Parliament. Within the judiciary, power is distributed amongst a hierarchy of courts. Judicial discipline is ultimately enforced by the appeals process. Furthermore, the selection of the judiciary from an expert profession trained in the canons and traditions of the law and equipped by experience for the administration of justice and the determination of questions of law provides for a high standard of competence and professionalism. Judicial independence is guaranteed by tenure of office subject only to the ultimate disciplinary threat of removal by the Governor or Governor-General on the address of both Houses of Parliament on grounds

of misbehaviour (ie, Parliamentary impeachment), except in NSW where judicial independence has been undermined by the establishment of a judicial tribunal. Under federal constitutions there is also a division of powers between states and the centre, usually by a divided allocation of subjects of legislative power. It bears emphasis that the system is not merely one of separation of powers. The system is one of powers balanced against each other so as to check one another. Thus, each House of Parliament must concur in order to enact statutes. Where judicial review prevails, statutes are subject to judicial review. Executive actions are also subject to judicial review. In federal systems, the upper houses of federal Parliaments usually consist of representatives of the states. In Westminster systems the executive ministry is responsible to Parliament. Ministries are restricted by civil service impartiality. The above analysis constitutes a bare outline of the doctrine of checks and balances. It is not meant to represent the actual state of affairs in the modern state. In actual practice the doctrine of checks and balances is being undermined at every point of its practical application on the basis of a false doctrine of democracy which regards majority rule as the sole criterion of constitutional propriety, forgetting that the very purpose of democracy is to act as a check, amongst many checks, upon powers in order to provide a balance which is conducive to the individual liberty of every person. The main example is the fusion of executive and legislative powers. Modern legislation does not recognise any criteria as to the proper nature of laws. It increasingly resembles the particularity of executive regulation. On the other hand, modern Parliaments have become the mere rubber stamps of executive governments and have delegated wide legislative powers to the executive. The result has been the creation of almost unlimited executive prerogatives, ostensibly exercised in the name of the people, but nevertheless acting increasingly as a public dictatorship. This analysis may be concluded as it began, by reflection upon the words of Montesquieu: "But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both. " The Spirit of the Laws, B XI, Ch 6. The system of checks and balances operates outside the law within the political system democracy, the electoral system, free expression and criticism, the media and the existence of strong and not so strong countless independent institutions also operates as a system of checks and balances on those exercising private and public power. The system of checks and balances operates not only at a constitutional level, but through the rule of law (section 4), through the existence of independent institutions (section 17.6) and free expression and association . Federalism A related basis on which the power of legislatures and governments may be limited is as a consequence of a division of power between the centre and the states in a federal system. The division of power has the effect that each party to the federation is restricted in its exercise of

power by the existence of other units. The Commonwealth government is compelled to share its power with the States and the States' power is restricted by the power of the Commonwealth and the powers of the other states. The emphasis on states' rights in the context of burgeoning Commonwealth power is unfortunate. It tends to neglect the more important dimension that the division of power between the Commonwealth and the States was intended to limit the area of Commonwealth power.

17.5 The Betrayal Of The Commonwealth Constitution By The High Court


Human history demonstrates that the main exploitative power is government. Where private power operates exploitatively and unfairly, this is invariably as a consequence of powers, patronage and benefits granted by governments and legislatures to private associations and individuals. The essential role of the Constitution is to place limits on the powers of government (drawing on (i) to (v) of the factors listed above in this section, 17.1). Limitations on the power of governments supplementary to a Constitution include a representative democratic system, political liberties enjoyed by citizens and the rule of law. The most important of the factors which make provision for restriction on government is the Constitution. A Constitution may lay down the permissible area of power for a legislature and a government and place restrictions on exercise of power. The American Constitution and the amendments incorporating fundamental rights provide such a document. The problem with the American Constitution (as with the Australian) is that judges belonging to the interventionist tradition have rewritten the Constitution. The American Constitution is hardly referred to nowadays. A recent article in Commentary is titled "The Disappearance of the Constitution". The American Bill of Rights has become discredited in many quarters. The fault is not with the Constitution and the amendments, but with the manner in which the judiciary interpreted them. The American Bill of Rights contained important brakes on the power of governments and Congress which have been devalued by the judiciary. Nonetheless America would have been a less free society if not for the Constitution and the Bill of Rights. In the heyday of American liberal interventionism, the Constitution and the Bill of Rights provided some barriers. Constitutions were intended to provide limitations on the power of legislatures and governments. Extension of power under the Constitution was to be granted only by the people. However, both the US and the Australian Constitutions were effectively changed, and power conferred on legislatures and governments, by the judiciary. Do Australians have an excellent Constitution which does not require amendment? The Constitution Act of 1900 as originally drafted was an admirable document. The reality however is that the High Court has rewritten the Constitution. The High Court, in the context of legislative initiatives, has presided over a substantial relocation of power from the States to

the Commonwealth, contrary to the intentions of the drafters and contrary to the wishes of the people as expressed in successive referenda. There are thus serious problems with the Constitution, which demand attention. The Constitutional Commission and its agencies as established, were incapable of addressing and did not relate to the real problems of the Constitution. The reason most commonly advanced by the advocates of constitutional reform is that the constitution, being drafted in the circumstances of the last century, has become unsuitable for present needs. This type of argument, however, begs the question of what are the needs of the present times? The general tenor of the reformist argument is that present circumstances require greater powers for government, in particular, the central government, in order to more effectively manage the economic and social life of the community. The reformists seek to modify the constitution in order to eliminate what they perceive to be obstacles to the achievement of this object. But the fundamental question remains whether this is an object which the community desires. The pathetic record of the attempts at reforming the constitution reflects the fact that the reformists have failed to address themselves honestly to this question. The electorate has time and again rejected proposed alterations to the constitution which have tended to increase the powers of the central government. There is a clear message in these popular reactions, but the reformists refuse to heed it. All statistics indicate that the majority of Australians do not identify their well being with the enhancement of the powers of government. But this is a fact that the reformists seem unwilling to recognise. There are two underlying perspectives which pervade the attitudes of the reformists and the work of the Constitutional Commission and its agencies. They are (i) a belief that further expansion and centralisation of government power is essential and beneficial and (ii) the Australian people are ignorant and uneducated and therefore the superior wisdom of the Constitutional reformers must enlighten the people. The belief in centralisation and increased government power is an ideological point of view. The reformers, however, treat it as a self evident fact of life. To them more government is required to deal with the problems of Australia and the changing conditions and the complexities of modern life demand more government. There is no appreciation of the existence of an alternative philosophical view nor of the strong argument that the ideology of freedom and limited government was responsible for the movement of western society in Australia from feudalism and abject living conditions for the vast majority to a prosperous modern democracy with reasonable living conditions for the vast majority. See also comments on public choice theory. There are many reasons for the failure of referenda in Australia. However, the most significant cause for the failure of referenda in Australia is generally overlooked. Twenty-six of the thirty-eight referenda questions posed involved attempts to enlarge the Commonwealth's power at the expense of the states. Only two of these twenty-six were carried, the social services proposal and the 1967 proposal to delete a discriminatory reference to Aboriginals in the Constitution, where no counter-argument was put. Whereas the High Court since the 1920's has been consistently increasing the area of Commonwealth power, contrary to the intention of the draftsmen, and undermining the federal compact, the people have consistently opposed the enlargement of Commonwealth power. The less populated states have always been suspicious of domination by the centre and by New South Wales and Victoria.

This is the main factor in the failure of referenda. It is an eminently reasonable stance which has been adopted consistently by the large majority of the Australian electorate. The less populated states entered the federation only as a consequence of guarantees provided by the Constitution, many of which the High Court has ignored. In this context they can scarcely be expected to grant more power to the centre. Proponents of constitutional change have tended to equate centralism with reformism and also centralism with nationalism. This equation is false. The ever-increasing size of government is widely recognised as being at the root of many of the problems which face Australia and other democratic countries. The people have been more perceptive in realising this than the so-called "reformists", who have wanted to centralise power in Canberra under the illusion that centralised power equals reform and is a recipe for good government. The argument put by so-called "reformists" is that the voters are conservative, they are deceived by emotive propaganda, they must be educated and the constitution must be changed with changing times. These arguments tell us more about the persons who use them than about the voters. They illustrate the contempt which many reformists have for the people of Australia, and the elitist perspective that they, and they alone, know what is best. They believe with unashamed arrogance that through centralisation of power they can solve complicated human problems. The Labor Government's approach to constitutional reform is based on a conviction that a constitution should serve the aims of a government which holds power at a given moment. The Labor politicians and theorists seem to be at a loss to understand why the electorate, which endorses their policies from time to time does not also accede to their requests for more constitutional power. There is a simple explanation for this reluctance. When political parties make promises they do not demand greater powers. When the electorate considers particular benefits offered to it, the prospect of constitutional change does not enter into its calculations, for such offers are not made conditional upon the grant of more powers (or extra taxation for that matter). But when government proposes constitutional changes, the electorate considers them specifically and, as the record shows, generally rejects them. If the promises of political parties are made conditional upon the grant of more powers or the restriction of liberty, there is no doubt that the public will reject both the benefits and the demand for power. The Labor Party in particular has never had the courage to tell the public the cost of its programs in terms of money and liberty. Instead it adopts programs and then seeks to gain more power for their implementation through subterfuge. The Labor approach is based on a misconception of the role of a constitution. A constitution is not an instrument for particular times but a charter for posterity. That is not to say that a constitution should remain permanently inflexible. What it means is that a constitution by its nature is not something that can be changed at will to accommodate the wishes of transient majorities in parliament. The Australian Constitution undoubtedly reflects the values of its Founders. There is a case for altering a constitution when values change. But this is easier said than done. How are present community values to be determined? Is a transient majority in the Commonwealth Parliament or a group with a philosophical bias which calls itself a Constitutional Commission competent to decide? What issues should be put to the people? But there is a more important issue which arises in relation to the present attempt to change the constitution. Should a constitution be pliant to momentary pressures or should it represent a longer-term compact insulated from the vicissitudes of majoritarian impulses? Can a

constitution in a meaningful sense operate on the principles of expediency? Any discerning observer will concede that even in the United Kingdom where the parliament is supreme there are fundamental, enduring principles which require observance if that form of government is to endure. In a society such as Australia where there is pronounced diversity of interests (regional, economic, social, ethnic, etc) the need for constitutional certainty is even greater. In such a society the terms of association have greater claim to observance. But we need not go so far. History is quite clear that there are no inevitable trends in social perceptions. What is popular social policy today can be rejected tomorrow. It is evident that the assumptions on which the present proposals for amending our constitution are made, have already been rejected by most Australians. A constitution which is pliant to short-term majority opinion cannot serve its purpose. It cannot protect minorities or individuals. It will be a manipulated statute which will sooner or later fall prey to demagogues and dictators.

17.6 Extra-Constitutional Limitations On Government Power


There are three major extra-constitutional limitations on government power: i. elections and political institutions conferring power on electors ii. the rule of law and iii. the existence of independent institutions. The rule of law is analysed in section 18. The analysis to follow focuses consequently on (i) and (iii). The Role Of The Electors The political sovereign (the electorate) is expected to operate as a restraint on government power. See also section 4.4. Where the area of executive and legislative power has not grown to the proportions it has reached today, a government would be bound to implement its program through the legislature (Parliament or Congress). The legislature is elected by the people on a mandate. The legislature could be held to its mandate, if it were not for: i. the breakdown of the constitutional limitations on the powers of the legislature; ii. the wide powers of initiation of legislation possessed by the executive; iii. the wide and relatively unfettered powers of the executive including the executive power of enacting delegated legislation and iv. the rise of the corporativist state.

The safeguards in liberal constitutions and constitutional theory have been undermined in various ways some of which surface in sections 16 to 18. The Existence Of Independent Institutions The existence of a multitude of independent institutions is one of the most characteristic features of western civilization, reaching back to ancient times. This feature reached its height during the middle ages and is still important today, although in a truncated form. It was the formative framework for many of the values, conventions and institutional processes which are taken for granted today, setting the civilised tone of western society. The notions of law and legal rights, of personal liberty, of free endeavour and freedom of thought, of authority and the concept of jurisdiction, of the freedom to stand out, the idea that justice is better than compromise or arbitration and that right is superior to expediency and conformity, the Western value of independence and the responsible individual all these can be traced to this principle of independent institutions for their institutional and cultural establishment. These characteristics of institutions can be traced at two levels. The first level is the independence from state and from one another, of the various kinds or categories of institutions, such as church, state, university, professions, trade and mercantile, cultural and sporting associations. The second level is the independence and diversity within each of these main categories. For example, the diversity of denominations within the church and of orders, localities, institutional structures and charitable organisations within the various denominations. Within and associated with the state, there are various independent and semiindependent spheres of power and association, such as the branches of the armed services and their civilian associations (such as the RSL), the civil service, the judiciary, the legislature and its several Houses, the executive government, state and federal governments and free cities. Similar patterns apply for the other groups, and it is only necessary to add that there is considerable overlap and interaction between all of the various groups and institutions which go to make up the cultural activity, unity and, at the same time, diversity of society. The existence of independent institutions is important for two reasons. It is I. conducive to cultural freedom and II. essential for cultural vitality. Independent Institutions Conducive To Personal Freedom The existence of a multiplicity of independent institutions is conducive to personal freedom. In a society characterised by such an interdependent structure, the individual has the option of entering into, or giving his allegiance to, any one (or perhaps more than one) of these institutions. Furthermore, he has the option of leaving one in which he is engaged and transferring his allegiance to another. This affords him a measure of direct protection from abuse at the hands of any one of, or even a collusion of, the various groups and institutions. The man who is persecuted in one denomination may join another. The man who is persecuted in the civil services may go into business. Further, this primary measure of protection gives rise to a secondary measure of protection by means of the principle of competition. The existence of a range of alternative independent institutions not only provides a remedy for the dissatisfied man; it also provides an incentive for his associates to promote his satisfaction if they wish to retain his association.

There is a further aspect of this system as it relates to personal freedom. This is the possibility of neutrality. It may be that the individual does not care to associate with a particular institution which wishes to foist itself upon him. Indeed, he may not care to associate with any institution at all. Independent Institutions Essential For Cultural Vitality The existence of a multiplicity of independent institutions is essential to the cultural vitality of society. Such a system avoids the sterility of a system where every aspect of human life and activity is directed by a single power (totalitarianism). The sterility of totalitarianism is the result of the monopolistic direction of all the varied affairs of human activity by persons whose expertise is confined to one area (usually political survival skills) in conformity to the precepts of a totalitarian ideology and the censorship of all activity which is not in conformity with the precepts, and conducive to the goals, of that ideology. On the contrary, a system of independent institutions allows for the free and direct expression, in various activities, of those differences of emphasis and opinion which are born out of differences in education, training, scholarship, experience, purpose and natural taste. By allowing for these factors, a free society is much more likely to attain to the highest and truest virtues in the various fields of its cultural activity, unencumbered by any ideological straight-jacket. Furthermore, the personal freedom in such a society allows the individual who is not aligned to any great institution to make his own contribution. This is an essential part of cultural vitality because, so often, it is the individual of genius, who dares to be different, who is the instigator of cultural advancement. One man can achieve more than a committee. Many individuals have been influential in the fields of science, philosophy, religion, art and music, law, trade, government and so on. Such men can have only very limited opportunity in a system where all power is centralised. They will have only such opportunity as the central power chooses to afford them. The Advantages Of Independent Institutions Being Undermined The advantages that institutional independence give our society are personal freedom and cultural vitality. Such a system is not inherently divisive or destructive. Some institutions and individuals compete, react to each other, debate, argue, co-operate, make exchanges, advise each other and persuade each other. In so doing, they are interdependent from a basis of independence. The result, on the whole, is a society which is cohesive and healthy rather than divided by firmness of incommensurability. But even where there is division, that is far healthier than an artificial unity which consumes all originality, efficiency, vitality and life itself. To repeat Lord Acton's aphorism: "Power corrupts: absolute power corrupts absolutely". Just as within the state a division of powers, a system of checks and balances, makes for a wellregulated state, so a healthy society is characterised by a very wide distribution of institutional power. Such a distribution has gone into the formation of the west in general and Australia in particular. In that distribution, the state had its place and did not trespass into other jurisdictions. The modern state, however, has overleapt its boundaries. It is fast consuming the jurisdictions of once independent institutions and reducing them to shells or to instrumentalities of the state. Many have come to depend upon state patronage either through

state monopolisation of cultural markets or simply by accepting state funding and spending to an extent which makes them reliant on the continuation of such funding. Modern Australia has received the legacy of a free society. It remains to be seen whether that legacy will be preserved.

Chapter 18 The Rule Of Law


An explanation of the rule of law and how it is fundamental to western democratic order.

0 1 2 3 4 5 6 7 8 9

The Rule Of Law Supremacy Of Law The Concept Of Justice Discretion The Doctrine Of Precedent Common Law And Statute Retrospective Legislation An Independent Judiciary Limits On The Power Of The Legislature The Moral Dimension

18. The Rule Of Law


The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352 "The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King". The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance. The essential characteristic of the rule of law are: i. The supremacy of law, which means that all persons (individuals and government) are subject to law. ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.

iii. iv. v. vi. vii.

Restrictions on the exercise of discretionary power. The doctrine of judicial precedent. The common law methodology. Legislation should be prospective and not retrospective. An independent judiciary.

viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix. An underlying moral basis for all law.

18.1 Supremacy Of Law


All persons (individuals, institutions and government) subject to law Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner. The idea of the supremacy of law requires a definition of law (to which the above principles may go some way). This must include a distinction between law and executive administration and prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorisation for power, rather than the guarantee of liberty, equally to all. The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.

18.2 The Concept Of Justice

The concept of justice has three facets - interpersonal adjudication, law based on fault and an emphasis on procedures. Interpersonal adjudication This aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea. It is a concept which is nebulous and non achievable. Its proponents increase state power to effect it, with counterproductive results. Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result. For example, in motor accident cases where one person suffers brain damage due to the negligence of a drunken driver, it is practically impossible to grant full restitution to the injured person. He can be compensated for medical expenses. He can be awarded a sum sufficient to improve his situation. He cannot be restored to his pre-accident condition. His brain damage cannot be repaired. It can only be ameliorated. It is not easy to determine a just punishment for the drunken drivers. In other cases, perfect justice is logically (rather than physically) impossible. Such cases arise in situations where there are legitimate interests on both sides but the interests are in conflict. Only one can prevail. Someone has to lose. Justice requires that the better interest should prevail but that does not mean that there is no merit in the inferior interest. The law of adverse possession provides an illustration where the conflict is between an owner who has abandoned his land and another, professing to be the owner, sells it to a person who takes possession of it and improves it. There is merit (and possibly demerit) on both sides. The best that can be done is to develop rules to help ascertain which side has the better right. Between persons, justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred. The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. The idea of redistribution of wealth is completely alien to the common law. A rich man cannot be sued by a poor man merely for being rich. Taxation was prohibited to the executive government, being confined rather to the representatives of the nation in Parliament, who were expected to be jealous defenders of their individual liberty and property. Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals, instead of those problems which arise solely in the minds of ideologues. Law based on standards and fault The second facet of the liberal concept of justice is that a person should not be disadvantaged

or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the legal order. The Magna Carta contains one of its early manifestations. But the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community. The Australian industrial relations system is fundamentally structured on notions of distributive justice and undefined policy. It enables tribunals to vitiate contracts, to penalise certain classes and to reward others on the basis of unpredictable considerations, although in recent times employers have become their predictable victims. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, fault has been all but rendered irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied. The idea of commutative justice which has characterised the laws and customs of most civilised societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions. The law is particularised and rendered uncertain, thus undermining the foundations of justice and liberty. Due process The third feature of the liberal concept of justice is the emphasis on procedures. The liberal does not believe in the possibility of achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for the human imagination, conception and execution. An emphasis on procedure is one of the foundations of the rule of law. Procedures provide for limitations on power. Procedures provide that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate against the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity. The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property.

18.3 Discretion
The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice. Discretion may exist in the context of executive, judicial and legislative branches of the modern state. Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering, are maximised at this point.

18.4 The Doctrine Of Precedent


The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predicability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community. A system based on precedent will be rational (without making reason its god), will be adaptable to varied and changing circumstances, will take into account all the varieties of human experience, will be highly practical and will be composed by the finest minds of many generations, tuned to a fine balance and learned in the art of detecting legal issues and resolving legal problems. The gradual development of the system will avoid the pitfalls of hasty and counterproductive reformism.

18.5 Common Law And Statute


The common law method of adjudication, in the context of the doctrine of judicial precedent is fundamental to the protection of rights and the prevention of arbitrary determinations. What Is "The Common Law"? What is the common law? The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law. Common law became part of the law of Australia as a consequence of the settlement of Australia as a British colony. The common law was influential in moulding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order, which it has helped to shape and underpin. The common law is the product of long evolved social values which are judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas and institutions" (C K Allen, Law in the Making Oxford (1964) p 71). These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect. The crucial importance of the common law has tended to be forgotten in recent times in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them. One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community. In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality

which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation). The Virtues Of The Common Law The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Francis, QC, in an unpublished speech "... represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations". Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject. The question may be asked; what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (notwithstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to commit arbitrary acts. Judicial discretions, unlike political discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values. Common Law Needs To Be Supplemented By Legislation Legislation in a modern technological age is necessary and useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast, the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves. The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to

the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognised by civilised societies. Even in the absence of major religious influence, civilised communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being. Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property. Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputation by recognising numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example. One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community. The common law approach is also characterised by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties. In the common law system, fairness and objectivity in the resolution of disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.

The Critics Of The Common Law The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition. The judiciary is not totally impartial and value-neutral. But impartiality is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with social activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist-dominated tribunals (eg the Human Rights Commission) will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important? Although common law courts have not been value neutral, they have tended to express the prevalent values of the community. This is consistent with the idea that the law should be the emanation of the popular consciousness and not the arbitrary will of an individual or group. The common law is subservient to laws passed by Parliament. In Australia as in England, the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government. In England, the common law safeguards have had no discernible effect on the rise of Parliamentary supremacy, the growth of the welfare state and the expansion of government. In fact, just as much as eighteenth and nineteenth century English government inspired constitutionalism, twentieth century English government has set precedents for expanding the powers of government at the expense of constitutional limitations. This has happened in Australia too.

18.6 Retrospective Legislation


Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.

18.7 An Independent Judiciary


The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. The independence of the judiciary has been ensured by the judges' security of tenure as well as the judiciary's own distinguished traditions of learning, integrity and technique and the law of contempt. Independence of the judiciary was inextricably linked to the system of formal courts. The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason: administration. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive, as may be seen in numerous uncivilised countries of the world. In order to have a proper judiciary, properly exercising its jurisdiction, several things are necessary. They fall into three broad groups: technical competence, commitment to sound ideals and finally, institutional (and therefore, personal) independence. Naturally, these groups overlap to a certain extent. Although formal courts in Australia are yet largely independent, there has been a proliferation of a vast array of tribunals which are neither independent nor competent. These are the administrative tribunals which determine countless privileges and deprivations which are incidents of the modern welfare state. These tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. These control and/or reward systems are progressively replacing the system of independent adjudication based on formal rights. It is time for a new Coke to wage war upon those usurpers of judicial jurisdiction. The ethos of the judiciary and the formal courts is being challenged by intellectual influences, particularly by a novel ethos of a "democratic" judiciary and by suspicions that Labor governments' policy of judicial appointment is sometimes based upon the criteria of philosophy and party loyalty before merit and judicial excellence

18.8 Limits On The Power Of The Legislature To Delegate


The purpose of legislation according to Madison was to deal with general principles. Legislation should be about general principles not about details of policies. The function of the legislature in Madison's view is not to espouse or promote "various and interfering interests". Thus, Madison (the most influential of the draftsmen of the US Constitution) thought that legislation is primarily concerned with the determination of what Hayek was to

later call "the rules of just conduct". Madison refers to "the good of the whole", "the common good", "the public good" and "the interest of the people" in relation to the proper aim of government. However, Madison's idea of the public good is very different from that of the modern interventionist. Delegation of the law making function is inevitable in the modern state. The objectionable aspects of delegation which have undermined the rule of law are: the sheer magnitude and volume of delegated legislation, the abdication by Parliament of its duty to lay down "general principles" and the inordinate extent of uncontrolled discretions that have been conferred on the executive. The control by Parliament over "general principles" is important for the functioning of the democratic order. Parliament is elected by and responsible to the electorate. A governing political party in Parliament is elected on the basis of its manifesto which then constitutes its mandate. If Parliament is restricted to legislation on "general principles", electoral control over Parliament and also over the executive is a possibility. The executive must act within the confines of laws passed by Parliament - otherwise it will be subject to the doctrine of "ultra vires" (acting beyond authority) and its actions will be invalid. The people may compare legislation with the Party manifesto and pass judgment. Thus the control over Parliament and the executive by the electorate breaks down due to: i. the sheer volume of delegated legislation, and ii. delegation to the executive of legislative power on matters of "general principle".

18.9 The Moral Dimension


Analyses of the rule of law will not generally refer to the moral dimension. There is in education, media, politics and even from within the church and its agencies an attack on traditional morality. The conflict is not between traditional morality and values neutrality. It is between one moral order and another the values of the new moral order include: autonomy for the individual, equality and social justice. If law is not based on morality on what can it be based? The traditional moral values as defined in section 8.1 in law and society are being replaced by a new set of values. The rule of law and the common law are in retreat because their moral base is being undermined. See further section 18.2 (the emphasis on fault) and section 8.

19. Respect For Law And Authority


Respect for legal authority and law (and also moral values and standards of behaviour) is what distinguishes a civilised order from the primitive and the anarchist. It implies that substantive rules and procedures are observed and that change will be effected in accordance with such rules and procedures. Respect for the rules and procedures arises from their creation by a higher legal source, a constituent assembly, an independent judiciary or an elected Parliament. The growth of and magnitude of modern government is such that it is difficult for anyone to respect all laws. Respect for law is possible only where the law is limited and accessible. There are active pressure groups and interests who, with media connivance, are able to flout the law and avoid the consequences. Trade unions, conservationists, peace protesters, feminists and others are able to flout the law and get away with it - and in the process achieve their ends. This has had the unfortunate consequence that individuals (eg farmers and small business) who have hitherto respected law and legal procedures are now threatening to flout the law - as the only way of achieving their ends. They have seen trade unions flout the law with impunity and profit therefrom. There is thus a gradual diminution of respect for law in the community as a whole. Not all authority is based on law. Private institutions (religious bodies, the family and schools) exercise a degree of authority, but subject to the law. In western civilisation, a hallmark of authority, legal and non-legal, has been that it was subject to legal checks and balances as well as to non-legal restraints (eg moral values, media and other criticism). The exercise of authority has been far from perfect. But when compared with other cultures and governmental systems, authority in the western democratic order has a record of fairness and justice second to none. Authority in the western democratic order is not unduly hierarchical and institutionalised, nor is it supported by secret police and a range of arbitrary powers in the hands of government. The system itself provides mechanisms for change. These, no doubt, work slowly, but history demonstrates that productive change is that which is carefully or slowly developed or which develops spontaneously and gradually. The acceptance, by individuals and groups, of law and parliament as the means of effecting change is an essential aspect of the western democratic order. When these avenues are not accepted and civil disobedience, violence, terrorism, and other unlawful means are resorted to as the means of effecting change, the inevitable consequence must be a gradual undermining of and loss of faith in, the entire system. If the problems increase and governments restrict individual liberties or lose control of law and order, the consequences become cyclic and will escalate. Toleration and pluralism within a set of broad-based values are vital to the operation of the system. The word "authoritarianism" is correctly used to mean unfair and oppressive exercise of authority, but it has now come to be used for almost any exercise of authority by traditional sources of authority. While there is an attack on traditional sources of authority, the attackers

are not averse to creating new sources of authority. Powers are vested in bureaucrats and tribunals such as the Human Rights Commission which are not subject to the procedural and other limitations of the common law and which, therefore, provide far greater scope for abuse of power. These are not referred to as "authoritarian" by those who establish the structures or their supporters.

20. Equality Of Opportunity And Equality Of Outcome


Equality of opportunity in the sense of identical opportunity for all individuals is impossible. "One child is born blind, another with sight. One child has parents deeply concerned about his welfare who provide a background of culture and understanding, another has dissolute, improvident parents. Children at birth clearly do not have identical opportunities in relation to abilities or environment ."(Milton and Rose Friedman, Free to Choose, New York (1980) pp 131-2). What follows in the next few paragraphs and the distinction drawn between "equality of opportunity" and "equality of outcome" owes much to the analysis of the Friedmans. Equality of opportunity is best expressed in the phrase - career open to talents. No arbitrary obstacles should prevent people from achieving those public positions which their talents fit and which their values lead them to seek. Neither birth, nationality, colour, religion, sex nor any other equivalent characteristic should determine the public opportunities that are open to a person - only talent and achievement. Thus, equality of opportunity simply spells out the concept of equality before the law. And it has meaning and importance precisely because people are different in their genetic and cultural characteristics, and hence both want to and can pursue different careers. It is important to note that such equality of opportunity does not present any conflict with freedom. Quite the opposite. Equality of opportunity and freedom are two facets of the same basic concept. Equality of opportunity means freedom to pursue one's private interest or vocation without arbitrary restrictions based on irrelevant personal characteristics. It does not include a power to force others to pursue their private interests or vocation in a certain way (eg, affording equality of opportunity of participation in those pursuits to others). A practical example may be taken from the field of matrimony. Equality of opportunity requires that no individual should be arbitrarily prohibited from marriage but it does not demand that the object of his matrimonial hopes should be compelled to afford him an equal chance of taking her hand. In business, equality of opportunity means freedom to engage in a trade. It does not mean a right to compel someone else to afford you an equal chance of participating in his trade. Equality of outcome is a radically different concept. Equality of opportunity provides in a sense that all start the race of life at the same time. Equality of outcome attempts to ensure that everyone finishes at the same time. To slightly change what the Dodo said in Alice in Wonderland, "Everybody must win and all must have prizes". That is the goal of radical socialism. Everyone must be a winner, everyone must be equal. Socialists do not really point towards absolute equality but they point to vague ideas of fairness and justness. This concept differs radically from the idea of equality of opportunity. Equality of opportunity provides scope for freedom and is, in fact, complementary to freedom. On the other hand, government measures to achieve "fair shares for all" reduce equality.

Government attempts to promote equality by positive action and discrimination have many undesirable consequences. Three consequences may be noted. 1.

If rewards are based not on achievement and effort but on fairness, what inc work? 2. Who is to decide on fairness? 3. What are the criteria of fairness? In recent times, the liberal idea of equality of opportunity has been subverted and transformed into a concept which may be termed equal opportunity. Equal opportunity departs from the orientation upon personal freedoms which is inherent in the liberal concept of equality of opportunity. Equal opportunity means an equal chance of participation in any activity, public or private, where there is any opportunity of participation. The compulsory imposition of anti-discrimination programmes upon private firms is an example of equal opportunity in action. It will be seen that equal opportunity is actually inimical to the liberal concept of equality of opportunity because it interferes with the freedom of others to pursue their vocations or private interests as they see fit. There is an inescapable, inevitable and fundamental conflict between the ideal of fair shares and freedom. Action for equality must necessarily involve government regulation and reduce liberty. Government regulation must necessarily restrict liberty. The consequence is that there is a difference between the ideal and reality. Government measures to promote equality are drafted and implemented through politicians and bureaucrats with all their human failings. There is a wide gulf between theory and practice wherever equality based policies have been tried. The end result of a movement towards equality of outcome in the hardline communist countries has been a state of terror. Russia, China, with evidence provided by the trials of the Gang of Four of atrocities within China, and the genocides in Ethiopia and Cambodia, offer clear and convincing evidence. And it must be emphasised that even terror has not equalised outcome. There are studies which establish that there was more inequality in the Soviet Union and the other communist countries than in the western representative democracies. The less extreme measures taken in democratic socialist countries in the name of equality of outcome have shared the same fate to a lesser extent. Where they have succeeded beyond equality of opportunity, governments have restricted individual liberty. They have failed to achieve their objectives. They have failed to establish fair shares. The most important reason for the failure of equality based policies is that such policies invariably mean government control which diminishes freedom. Experience shows that restrictions on economic freedom inevitably affect political freedom. One of the myths of radical socialism is that it is possible to preserve political freedom while destroying economic freedom. Experience proves this claim to be false. Popular ownership is the ideal. Government ownership and centralisation of power is the necessary consequence. Equality based policies aim to impose equality but, in fact, increase inequality. This is not merely because they directly attack equality of opportunity in the sense of freedom to pursue an interest or vocation, but because by destroying incentive they inhibit that individual initiative which has been responsible for modern economic progress, growth and

development. Modern economic development has systematically raised the lot of the ordinary man to a level of prosperity undreamed of in past ages, when such prosperity was confined to a few. This development was the direct result of individual initiative and endeavour within a system which allowed individual incentive and free activity. By directly impinging upon individual incentive and free activity, egalitarian policies and programmes actually inhibit the process of economic growth and development, thus inhibiting the only mechanism in history by which inequality has been systematically, successfully and continuously ameliorated on a large scale.

21. Freedom Of Expression And Freedom Of Association


An explanation of the importance of freedom of expression and freedom of association and how they are being eroded in Australia in 1996. 1. 2. 3. 4. 5. The Importance Of Freedom Of Expression The Racial Discrimination Act Amendments The New Censorship Relative Freedom Of Speech The Attack On Freedom Of Expression

21.1 The Importance Of Freedom Of Expression


The importance of free expression as a basic and valuable characteristic of western society cannot be underestimated. One of the difficulties inherent in discussing freedom of speech is that it contains what is often described as the paradox of freedom. The classical exposition of this paradox was described by John Stuart Mill in his essay On Liberty in Utilitarianism Etc: London (1910) p 83 "... there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered." In other words, unless the enemies of freedom possess the liberties which they are keen to abuse, then we deny the essence of what we ultimately stand for and are therefore no better than those to whom we are opposed. Or as Voltaire has been paraphrased, "I disapprove of what you say, but I will defend to the death your right to say it." (The corollary is that the actions and words of the enemies of freedom must be critically analysed in public debate. This is where supporters of a free society have failed miserably.) On a more practical plane, freedom of speech serves many functions. One of its most important functions is that decision-making at all levels is preceded by discussion and consideration of a representative range of views. A decision made after adequate consultation is likely to be a better one which less imperfectly mirrors the opinions, interests and needs of all concerned, than a decision taken with little or no consultation. Thus freedom of speech is important at all levels in society. Yet it is most important for government. A government

which does not know what the people feel and think is in a dangerous position. The government that muzzles free speech runs a risk of destroying the creative instincts of its people. Freedom of speech is also important to government because when criticisms of a government are freely voiced, the government has the opportunity to respond and answer unfair comments and criticisms about its actions. On the other hand, when freedom of speech is restricted, rumours, unfair criticism, comments and downright falsehoods are circulated by word of mouth. These have a habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. The government is in no position to answer these views, because they are not publicly stated. It is in a government's interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and print media far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known. Finally, the freedom of speech is the single most important political right of citizens, although private property is required for its operation. Without free speech, no political action is possible and no resistance to injustice or oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help to restrain oppressive rule. Without this freedom it is futile to expect political freedom or, consequently, economic freedom. Thus freedom of speech is the sine qua non of a democratic society. Freedom of speech involves toleration of a great deal of nonsense and even of matters which are in bad taste. There are those, among them notably Justice Douglas of the American Supreme Court, who have argued for near absolute freedom of speech and against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity, Justice Douglas said in dissent: "The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment." Problems arise where some people call for groups such as National Action to be made illegal as tending to encourage racism. In a recent incident at a University, where National Action had set up some tables to distribute literature, tables were overturned and groups of students shouted against racism. Those who attempt to resort to such tactics to stifle presentation of an opposing view give the impression that reason and logic are not on their side. Freedom of speech has as its necessary corollary the expression of a wide range of views, some of which of course will be unpalatable, or clearly wrong. However, the alternative of placing the agenda for public discussion in the hands of paternalistic bureaucrats (who as human beings will be fallible and will have subjective views and personal prejudices) whose rulings often cannot, or can only with difficulty and cost, be reviewed in the courts, is increasingly becoming the norm. It is an undesirable and unfortunate trend. The attacks on Professor Geoffrey Blainey are symptomatic of developing trends. History demonstrates that problems have arisen in multi-racial, multi-lingual and multi-religious

societies. Professor Blainey's view should be freely expressible as part of the public discussion about our immigration policy, along with any other views, without him being subjected to personal and vituperative abuse or threatened with violence. The process of public debate provides an opportunity for an evaluation of his views.

21.2 The Racial Discrimination Act Amendments


One of the thorniest issues that has arisen in recent times is that of the amendments to the Racial Discrimination Act proposed by the Human Rights Commission which would: "... make it unlawful for a person to publicly utter or publish words which, having regard to all the circumstances, are likely to result in hatred, intolerance or violence against a person or group of persons, distinguished by race, colour, descent or national or ethnic origin." While some may find this a laudable weapon against racists, it is yet another serious restriction upon free speech. What the amendment really strikes at is hurtful speech or wounding words. For example, if somebody publicly said, "Aborigines are just lazy drunks", it is likely that such a person could be prosecuted under the Act. Such a statement is a deplorable generalisation, no more applicable to Aboriginals than any other race or nationality. Why give the statement any more treatment than it deserves simply to be ignored? Doubtless, many Aborigines may feel deeply hurt by such a comment but what mature person expects to pass through life without having wounding words spoken to him or her? Any sensible person can see that the statement reflects more upon the person who made it than it does on Australian Aborigines. Why should migrants or members of ethnic groups be protected from the "slings and arrows" of normal human living? Indeed, many traits of the various cultures may well deserve severe criticism for the sake of social discipline and national cohesion. For example, the Aboriginal practice of organised infanticide or some of their customs relating to treatment of women, may legitimately be strongly criticised. Have not other cultures been criticised in the past for their sanitary habits which were a danger to public health? Members of these communities and groups may be deeply offended or hurt by such criticisms. But should the Commonwealth Parliament be legislating to forbid this simply because it arouses ill feeling? There should be freedom to criticise white South African members of the Australian community who are unrepentant about apartheid policies maintained in their home country, irrespective of whether it causes intolerance of their community in Australia. It is ludicrous that such a condemnation of a racist policy would in fact be a breach of the Racial Discrimination Act. Laws already exist to adequately deal with any physical attacks which are made by one group or person against another (whether of racist origin or not) and to deal with incitement to

violence. New laws which enable prosecution at a much earlier time are both unnecessary and exceedingly vague (and therefore potentially dangerous) in their operation. Indeed, the freedom to make such statements is an important safety valve which society needs in order to lessen the likelihood of resort to physical aggression. Tensions of a racial nature are bound to develop in all walks of life and should not be suppressed. A heated public debate does not necessarily lead to, and is far more desirable than, violence. Those in Australia who are proponents of the fashionable term "Multiculturalism", mostly politicians, journalists and certain segments of academia (very few of whom are actually migrants), make strange bedfellows with those who promote the latest version of the Racial Discrimination Act. Indeed, it seems that most of these people wear two night-caps. They cannot be ignorant of what Italians feel about Greeks, Ukrainians about Russians, Chinese about Vietnamese, Turks about Armenians, Indians about Pakistanis, Nigerians about Ghanians, or Croats about Serbs and vice versa. Australia's attitude to all this should be that we welcome immigrants from any country, with the stern proviso that their national politics be firmly left at home. But the transformation of theory into reality may at times be more aptly described as metamorphosis, except that this time the butterfly can be uglier than the caterpillar. One simply cannot legislate to prevent people from holding what may be racist attitudes, especially migrants who could have fought against each other in the World Wars. The best we can do is to educate and attempt to change attitudes and let time heal these wounds as new generations of Australian-born children leave these views behind. Certainly legislating to make these thoughts inexpressible is only likely to harden people's feelings and prolong the whole process. Professor Lauchlan Chipman has this to say about the amendment (quoted above) proposed by the Human Rights Commission: "It is not excessively dramatic to say that not since the Second World War have we seen proposals for limiting freedom of expression as restrictive as some that are currently under discussion. All of them derive from the progressives of the new class and more importantly all of them are put forward in the name of protection of the innocent from hurtful speech. At first, the proposed amendment might seem unexceptionable; something that only racists or people insensitive to the hurt caused by racists would oppose. And indeed, as is so often the case, people who oppose this amendment in good faith will be called racists. (Regular readers of Quadrant will recall that the present Commonwealth Attorney General was, as Shadow Attorney, not averse to using parliamentary privilege to describe Quadrant contributors who criticised multiculturalism as "sophisticated" and "more dangerous" racists. Late last year the Evans speech was cited at a multiculturalism conference in Adelaide as proof that this writer "hated ethnics"). One thing that is particularly worrying about the Human Rights Commission's proposed amendment is that it has deliberately chosen (it considered the alternative and rejected it) to construct the offence in terms of objective consequence rather than intended effect, in a way that is modelled on the defamation laws of most States. Thus if a newspaper were to report, in good faith, claims about the comparative alcoholism rates among Aborigines and nonAboriginal Australians... and as a result a minority of the readers were reinforced in an intolerant attitude to Aborigines, an offence may have been committed. Now we will be hastily reassured that the proposed legislative amendment is not intended to extend to "bona fide public discussions", scientific reports, or works of art (the latter exemption no doubt intended to save Wagner and Irish jokes).

It is difficult to imagine anything more ludicrous than the Human Rights Commission making judgements about whether something is a work of art, whether a public discussion is bona fide, or whether a report is genuinely scientific. It is not just ludicrous. It reeks of all of the classical dangers of censorship. Moreover it is doubtful if it will achieve anything in relation to its declared and legitimate objective of diminishing racial tensions. (Comparative English legislation actually correlates with a rise in overt racist activity, and in the proportion of racist smut which is anonymous.) It may succeed in having Adolf Hitler's Mein Kampf banned in Australia, unless it qualifies as a work of art. "(Quadrant, May (1984) p 24).

21.3 The New Censorship


A set of guidelines were circulated by the Federation of Australian University Staff Associations (FAUSA) entitled Towards Non-Sexist Language. See Quadrant (1984) p 16. These guidelines have the very objective which is set out for Newspeak in the appendix to Orwell's Nineteen Eighty Four. The objective is to make certain thoughts (sexist thoughts and attitudes) inexpressible. Professor Lauchlan Chipman comments: Needless to say, the guidelines are ridiculous in their justification, and inaccurate embarrassingly so in an organisation which claims to represent the interests of those in our highest institutions of learning in their substantial linguistic claims. But what is more important is that in several Australian universities committees have been established to consider recommendations, inter alia, that compliance with the guidelines in university lectures, tutorials, administrative documents and research publications, be university policy. While serious scholars will certainly ignore the positive recommendations which are predictable given the sorts of people who gravitate to such committees, the real indictment of the quality of our tertiary academic community is that there are sections within it who would take it seriously at all. What sort of attitude to scholarship is held by someone who would actually recommend, to take a real example, that in lectures, tutorials, or research publications about Aristotle, he should not in future be quoted directly as saying "Man is a political animal", but rather, as university policy, should be paraphrased as saying that people are naturally political (or other non-sexist words to that effect)? It is difficult to take a principled stand on university autonomy against attacks from without, when it is being wilfully subverted from within by people who, in the unlikely event that they have read Orwell's Nineteen Eighty Four, have interpreted his discussion of Newspeak as a set of useful positive recommendations. When a satirist provides an archetype for a social policy within our institutions of higher learning, retreat and withdrawal are very tempting. (Quadrant, May (1984) p 27). Professor Chipman also refers to several proposals which were put forward to re-write school textbooks and revise school curricula so that men and women are portrayed as having socially interchangeable roles. An organisation of Western Australian school teachers suggests that history texts be rewritten to write out wars and war heroes and write in peace and peace heroes. More significant is the actual culling of certain school and municipal libraries, under the direction of committees filled with moral zeal, of racist, sexist, and militarist works. In

New South Wales, former federal Commissioner for Community Relations and former Immigration Minister, Al Grassby, is reported to have called for the removal of Clive of India from New South Wales school libraries on the ground that it is racist. To quote Professor Chipman again: The arguments given for removing these books from school and municipal libraries could be extended to removing them from all libraries. The arguments are essentially those offered by Plato in Book X of The Republic. Indeed the parallels between Plato's Republic, Oceania in Nineteen Eighty Four and the new illiberalism in Australia are striking. In all cases, a publicly educated elite, sure in its values but untrusting of the rest of the community to quickly endorse or understand its values, adopts a paternalistic (The Republic) or Big Brotherly (Nineteen Eighty Four) protective role. Plato's Guardians, and the new moralists of the new class in Australia, who are associating themselves with such very worrying agencies as the Commonwealth Human Rights Commission (itself an interesting specimen of Newspeak terminology, of which more below), various Anti-Discrimination and Equal Opportunity Boards, and a number of other advisory boards and ad hoc panels with direct access to Attorneys-General and other political leaders, have a remarkable amount in common. Like The Party in Nineteen Eighty Four, under the sternly protective but nonetheless sibling image of Big Brother, these people believe that not only do they know the truth on important matters of social order, but they know it with a certainty which justifies them in legislating for the implementation of this certain truth by whatever measures are necessary. Like Plato's Guardians, they fear that the lower classes (Orwell's proles or quite simply "ordinary people") will be too lethargic, weak-minded (the effects of prior "structural social conditioning") or too weak-willed to achieve voluntarily the rapid implementation of these selectively revealed goods.(Quadrant, May (1984) p 28).

21.4 Relative Freedom Of Speech


It is well to remember that in spite of the valid criticisms which can be made of the way western societies have allowed governments to place restrictions upon freedom of speech, it pales in comparison with the totalitarian regimes (some of which have been changed) in countries which lie between the Elbe and the China Sea. One example is the care which the leader of the Polish trade union Solidarity, Lech Walesa, had to employ in any "statement" which he made during the communist regime, about the problems confronting that country. It is clear that it is only the threat of criticism from the international media which prevented Walesa from being dealt with in the usual communist way. This association of restrictions with socialism and freedom with capitalism is no matter of chance. Capitalism is, with all its faults, a pluralist system. Power within it is dispersed and various and it is this pluralism which is the necessary (though not sufficient) condition for freedom's existence and continuance. Socialism, on the other hand, is a highly centralised system, with political and economic power concentrated in very few hands. Freedom of speech in the socialist bloc is all the more restricted where all causes must bend to the communist doctrine.

21.5 The Attack On Freedom Of Expression


Expression of opinion is the essence of a democracy. The famous words of Voltaire bear repetition: "I disapprove of what you say, but I will defend to the death your right to say it". Hard debate and disputation is an integral part of the true democratic process. Respect and toleration of the opinions sincerely held by others based on reason and principle is another important aspect. Lenin once said: "I think we must stick the convict's badge on anyone and everyone who tried to undermine Marxism, even if we don't go onto examining his case." This tactic has been cultivated to a fine art by modern socialists in politics, media, academia (and some of the Wets in the Liberal Party have caught the same disease). The level of debate in public life in Australia has degenerated to abysmal levels. Argument by abuse, overly vigorous assertions, cant phrases, innuendo, name calling, denunciations (attacking the man rather than playing the ball, to use sporting parlance) are extremely common. This serves as a substitute for rational argument and an avoidance of entering into serious debate with an opponent's rationally presented arguments. This type of language and debate has always been associated with extreme elements in the political system. The problem is that today it is part of mainstream politics. The Prime Minister, Premiers, Ministers of the Crown and other public figures hurl abuse and denunciations at their opponents without resorting to rational argument. Hard criticism and strong arguments, provided they are honest and are supported by and based on reason and principle, are part of rational debate. Slogans, abuse and name calling without reason are not, and this practice must be roundly condemned. The ABC, the public affairs television and print media (national and metropolitan) which set the agenda of public debate in Australia have miserably failed to focus on the low levels of debate indulged in by public figures of the left. These sections of the media, however, are quick to pounce on the right when it indulges in rhetoric, unfair or extreme comment and even when it is arguing rationally and legitimately. The views of the extreme right are ridiculed or ignored. By comparison the extreme left is given great latitude. The activities of left wing protest groups receive wide publicity. Any criticism receives minimal exposure. The word moderate is used to describe persons of the left and extreme left. John Halfpenny is regarded as a moderate by sections of the media. What is a moderate is of course a matter of opinion but the media attempts to parade its interpretation as objective fact. An objective criteria of moderation in public life should take account of public values. The only possible criteria is that a person who identifies with majority community values should be regarded as a moderate.

The most common approach of the critics of the arguments of the right is to attack the man rather than the idea and to use denunciations without resort to rational argument. The descriptions and associations used by Labor Ministers of the Crown include: racists, fascists, imperialists, conceited Coalition of privilege, troglodytes, neanderthals, drones, thugs, persons who are cold of eye and hard of heart, lunatic fringe academics, failed and frustrated ex-public service mandarins, simple minded avaricious millionaires, mercenaries of the money markets, born again political inquisitors of the National Farmers' Federations, clandestine clubs, flag waving, anthem singing, Queen toasting phonies, economic fantasies, incoherent ravings, the black and sinister hand of this clandestine and subversive force, politically an evil view, men of straw, branch of the Ku Klux Klan, persons with an obsessive desire to maximise profits through tax evasion. The public policy debate in Australia is dominated by abusive rhetoric. Some socialists have, over the years, perfected the art of suppressing opposing views through tactics involving abuse of opponents and of propagating their own views by vigorous assertion and catchy slogans. A key strategy is to heap abuse and ridicule on opponents. Those who call for de-regulation and privatisation are called the defenders of privilege, the exploiters of the poor and the divisive elements of society. Those who support national defence and opposition to the global threat of communism are labelled as war mongers and adventurers. Those who call for the reduction of the size and cost of government are portrayed as uncaring persons who are insensitive to the problems of the less fortunate. All critics of socialist policy are generally branded as extremist, the presumption being that the left alone are rational and reasonable. They present all social problems as a conflict between the rich and poor and the caring and the uncaring. They assert that their policies alone serve the poor whilst everyone else is only interested in entrenching the privileges of the rich. The word racist, accompanied by abuse, is freely applied to those who are not in any sense racist. There are rational arguments against multiculturalism, based on the amount of money which is wasted by bureaucrats, that it ferments inter-communal disharmony, that ethnics are prevented from joining the mainstream of Australian life and enjoying the opportunities for advancement, and other counter-productive effects. The word racist is applied to those who oppose indiscriminate Aboriginal land rights and point to the waste of a great deal of money on certain bureaucratic schemes. Many who oppose land rights would support expenditure on special medical and educational programs for Aboriginal people and for mining royalties (not veto powers over mining) in relation to genuine (as distinct from fictional) land rights claims. Socialists sell their programs by couching them in slogans. They are touted as promoting justice, equity and the quality of life. They resort to arguments by vigorous assertion, or as Professor Leonie Kramer calls them, "arguments by slogans, labels and cant phrases". By such means they have created an impression that socialist policies have brought about present levels of prosperity in society. When these propositions are challenged the left and their allies react with abuse and meaningless denunciations. There is strong support for socialist ideas by dominant elements within sections of the media (the print media, TV and ABC radio). It is this support which has enabled socialists to smother their opposition and to proclaim themselves as the guardians of the public interest and the aspirations of mainstream Australia. With the assistance of the media, they have managed to control the agenda of public debate and to intimidate the political opposition into

submission. The fear of abuse and smear have made liberal politicians fearful of asserting their own principles and beliefs. Democracy cannot be said to consist of a definite set of rules and precepts. Even if it is accepted that there are some factors which are relevant to the concept of democracy, observance of these alone is not sufficient. It is possible to observe the letter of democracy and violate its spirit. The most important element in the spirit of democracy is respect for opposing views, and what flows from this a spirit of give and take in which compromises could be arrived at in an atmosphere of genuinely rational debate. This would include not only respect for opposing views, but a way of arguing which avoids unscrupulous exploitation of half-truths, personality assassination, appeals to base emotionalism, consistency of argument rather than changing arguments and ideas for political expediency, concern for fairness and equity, an ethical perspective and so on. It is often quite possible, indeed easy, to win an argument by foul means. The trend in modern politics towards some individuals getting their own way, winning a majority to their side by intellectual shock tactics and riding roughshod over the truth must be roundly condemned. Strictly speaking, no democratic rules have been broken, except the crucial one of intellectual and moral honesty. And the wholly inadequate justification for such actions is "it is politics" or "the ends justify the means" or "we do not agree with the tactics adopted but we agree with the ends". Freedom of expression, accompanied by debate, is one of the cornerstones of democracy. What is needed is a vigorous and open debate about socialism versus liberalism, liberalism versus marxism, private enterprise versus government enterprise, the pros and cons of private enterprise, etc. This debate should be conducted on the basis of an exchange of reasons and without resort to name calling, an impugning of motives or argument by slogans and vigorous assertion. There are three reasons (operating separately or together) which are responsible for the tactics of argument by abuse, sloganism and character assassination. 1. The tactic may be the consequence of a belief in the inherent superiority of the point of view espoused and the deficiencies in the opposing point of view. 2. It may be adopted as a debating tactic in the context of a supportive media designed to put down opposing views without the necessity to resort to rational argument. 3. As a corollary to (2), this type of argumentation operates to deter individuals and institutions from entering into public debate with those who use these tactics. Whatever the motivation, it demonstrates a lack of faith in democracy. It demonstrates an undermining of the spirit of democracy which involves a commitment to fairness and decency. It also involves a violation of the basic principle of a democratic society that a decision should be made after free exchange of views in the belief that the better opinion will triumph. Whatever way one looks at it, this totalitarian attitude and mentality is dominant and destructive of democratic processes.

22. Human Rights


An explanation of human rights and their relation to duty, with reference to civil liberties, ethnic rights, and social welfare, in Australia in 1996 22.1 22.2 22.3 22.4 22.5 22.6 The Meaning Of "Human Rights" Civil Liberties Ethnic Rights Social Welfare Rights Human Rights Are Not Absolute Rights Without Duties

22.1 The Meaning Of "Human Rights"


The term "human rights" is a relatively modern invention. It covers under its umbrella three different types of rights: i the fundamental freedoms or classical civil liberties, ii ethnic and religious rights iii socio-economic rights. Some constitutions have enumerated the first or the first and the second and attempted to set up judicial enforcement of such rights. The third category has not been stated in a constitution in an enforceable form, but some constitutions refer to them as directive principles of state policy.

22.2 Civil Liberties


The more important rights may be said to include the right of each individual to:

freedom of speech and expression, freedom from arrest or detention except under authority of law, freedom from cruel, inhumane or degrading punishments and the right to a fair trial by a competent and independent court, freedom to enjoy lawfully acquired property, equality of persons before the law, freedom of assembly and association (including public meeting and withdrawal of labour), freedom of thought, conscience and religion, freedom to contract, freedom to engage in a trade, profession or occupation, freedom of movement within a nation and across national borders. Some of the above freedoms are analysed in various parts of this book, see sections 5, 7, 20 and 21.

22.3 Ethnic Rights


The idea of these rights has arisen in multi-linguistic, multi-cultural, multi-racial and multireligious populations. The notion of equality before the law and equal protection of the law underlies the above rights and is generally included in constitutions which have bills of rights, though in a particular situation it may be available in conjunction with some other right. The idea of equality before the law implies that persons or groups must not be discriminated against without justification. The words "without justification" are relevant. Discrimination is both inevitable and proper in human affairs because of the differences between human beings, accidents (both natural and man induced) and many factors which affect the nurture and development of individuals.

22.4 Social Welfare Rights


These by their nature are not justiciable in the courts. Among topics which are placed in this category are alleged duties of the state: to secure full employment for all people of working

age, to provide adequate standards of living and education to all citizens, to rapidly develop the country, to distribute the social product equitably, to eliminate economic and social privilege and disparity, to ensure social security and welfare, to develop the culture and languages of ethnic groups, to protect the environment, to safeguard the independence, sovereignty, unity and territorial integrity of the country and to promote international peace and co-operation. The analysis above refers to three types of rights, 1. the traditional rights primarily involving protection of individuals from government, 2. ethnic and religious rights and 3. social welfare rights. It is important to distinguish between the different historical and conceptual bases of these three categories of rights which are loosely termed "human rights". Such differences between them are often blurred or ignored, with serious consequences for the operation of fundamental freedoms. Since the second world war, there has been a great emphasis on human rights other than the classical civil liberties: on socio-economic rights, and on the rights of groups or classes or nations. The recognition that the promotion of socio-economic rights, as rights to benefit from the state, stand in great tension with civil liberties may be often deliberately obscured, but it is nevertheless widespread and it is, of course, a correct recognition. The traditional civil liberties, many have correctly recognised, require institutional settings, historical traditions, a sense of community. The socio-economic rights can, in principle, be granted by the state, even by a state which suppresses all non-state organisations and institutions. Very different kinds of societies may be involved. ... The attempt to elevate human rights, in any particular formulation, uncritically, as urgent, unhistorical, abstract demands is not only based on intellectual error but is like most propaganda and moral indoctrination inherently unstable and unable to cope with genuine criticism. Human rights can only be understood, and therefore must be taught, in the concrete contexts in which they arise and have to be implemented. This is the social context of concrete history and real politics. There is also, in an important sense, a concrete human context. This is best portrayed by world literature, or at least by the great literature of the world, and not by shallow declarations and proclamations.(E Kamenka What are Rights? paper presented at the Conference on "Teaching Human Rights", University of Sydney, November 1978, p 11). The third category commonly included within the term "human rights", namely "socioeconomic rights", raises basic questions regarding the meaning and operation of human rights. The recognition of this category as rights has created certain contradictions within the concept, leading to the weakening of civil liberties. The consequences of such recognition and the conflict that arises between civil liberties and socio-economic "rights" creates many problems. See LJM Cooray ed, Human Rights in Australia, Sydney (1985) Chapter 5. Such "rights" are not recognised as rights properly so called by those who believe in the primacy of civil liberties. There are human needs. Yet where a need exists, however compelling, a right cannot be said to automatically spring into existence.

22.5 Human Rights Are Not Absolute


22.51 Restrictions On Rights In countries which have bills of rights there is a basic statement of freedoms subject to permitted abridgment of such freedoms. Freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society. The United States Supreme Court has over the years qualified the rights in the constitution. Any statement of rights is not absolute and must of necessity be subject to limitations on the above lines. The right of free speech and expression does not extend to sedition, slander, defamation and obscenity. The principle of equality before the law cannot deny a legislature the power to classify persons for legislative purposes and to legislate affecting them, provided that the classification is not arbitrary and is based on a real and substantial distinction bearing a reasonable and just relation to the objects sought to be achieved. Thus the legislature could enact legislation regulating the activities of money lenders. This would amount to a singling out of money lenders and would be prima facie in conflict with the principle of equality before the law. But provided the classification is reasonable and there is a legitimate object to be achieved the legislation would nonetheless be valid. The above are instances of legitimate restrictions of rights. They are intended to illustrate that no right available to an individual or group is or can be absolute. This seems obvious but is often not appreciated. 22.52 The Clash Of Rights The reality that human rights are not absolute, and are subject to reasonable restrictions, does not mean that the rights can be arbitrarily curtailed according to legislative or bureaucratic discretion. The manner in which restrictions are to be determined and imposed and the criteria which apply to the formulation of restrictions are crucial. If human rights are to be meaningful they cannot be subject to crude majoritarian dictates. What distinguishes a human right from any other right is that a human right is available to and enforceable by a minority, however small, even against the wishes of a majority. If human rights were to become subject to ordinary parliamentary control they would be no different from any other statutory right which parliament is free to confer and withdraw at its pleasure. The restriction of human rights is therefore a crucial and delicate question. They cannot be based on ideological perceptions of parliamentarians, bureaucrats or the Human Rights Commission but must be grounded on objectively ascertained and comprehended criteria. An article in the National Times, week ending 25 August, 1979, referred to "the right to march demonstrations" and by way of example: "Senator George Georges was gaoled yet again for upholding the principle of the right to democratic protest in Brisbane streets". What are these rights? There is no absolute right to democratic protest or to march. There are rights of speech and expression and assembly. But these rights are subject to limitations. The right to freedom of association must be exercised so as not to interfere with the rights of others to move about the streets or go about their business. Where there is a clash of rights, methods must be devised through rational analysis, political avenues and the courts so that the rights of all parties could be exercised so as not to inconvenience each other. If this is not possible (as it often is not) there must be a compromise or one must be restricted and give way to the other.

The clash of rights is a factor which the United States courts and citizens are very familiar with. An example of a conflict of rights is where the right of free expression of the press to coverage of news stories may clash with the right of an accused in a criminal case not to be prejudiced by adverse publicity of allegations made against him prior to trial or in a pre-trial hearing. American journalists generally would not show such an obvious lack of understanding of the basic principles underlying fundamental rights as is demonstrated by the above quotation. The above article is just one of numerous examples in contemporary Australia where so called rights are claimed without reference to conflicting rights and basic common sense. 22.53 Exaltation Of Particular Rights One of the real problems in the human rights arena today is the failure by the Human Rights Commission and many who profess to be concerned about human rights to appreciate that human rights are complementary to each other. The pursuit of one particular right without regard to others is self defeating and destructive of the overall framework of rights which is essential to the operation of specific rights. Human rights activists overlook this dimension. Some rights such as the right to equality of persons before the law, freedom of speech and freedom of person and property are more important than other rights. If one right must prevail over another a rational basis must be provided. This involves an examination of the two rights, an evaluation of the importance of each and the context within which they operate.

22.6 Rights Without Duties


Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and also the difference between right and privilege. Hohfeld emphasised that there cannot be a right without a duty. Right in one person presupposes a duty in another. The concept of a right without a duty is meaningless. Likewise he also distinguished between rights and privileges. A privilege is available on sufferance. It is a discretion vested in the person granting it. A right is an entitlement. On this analysis what are commonly called rights to employment, welfare, etc, are not rights. A right to employment is meaningless because there is no person who is under a duty to employ. Welfare is not a right. It is a privilege which is given to certain persons. Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a right involves a duty in another person or institution. As an essential commonsense corollary, it must also involve an acceptance of that duty by the person who is subject to it. It is ironic in society today that while more and more people are demanding rights, fewer and fewer people are concerned about duties, least of all those who are most vocal in the assertion of rights. Governments, the Human Rights Commission and many other government agencies provide doubtful leadership in this regard. They are educating people about their rights and are attempting to make more and more rights available with no reference to logic and commonsense. But they seem unconcerned about the need to educate people about duties and the importance of a sense of responsibility.

A dangerous byproduct of the welfare state and the growth of government is a profound attitudinal change in society which makes people demand more and more and contribute less and less. This transformation of the social psyche has taken place imperceptibly to the point that it unconsciously pervades the entire society. The preoccupation with rights (particularly state created social and economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights becomes self defeating when it is unaccompanied by the commitment to duties. The pressures exercised by interest groups have become the dominant feature of the modern era. These demands come not only from the poor and the underprivileged, but also from privileged academic, bureaucratic, social and business groups. At the same time there is a deafening silence on the question of individual responsibility. The interventionist welfare state has become a super patriarchal entity from which individual members have come to expect solutions to all problems. Rights are being demanded and duties forgotten. The Bible emphasises duties and responsibilities (not rights). The Ten Commandments are duties. Duties have been more important than rights in the Australian Achievement. The emphasis on rights to the near exclusion of duties and responsibilities in modern society is a challenge. There is a grave danger in the push towards legislative recognition of subjective (so-called) rights in response to the demands of politically influential pressure groups. A duty-centred society is preferable to a right-centred society. If individuals are concerned about their duties, responsibilities and obligations, they cannot but be concerned about the rights and freedoms of others. A right-centred society is one in which individuals assert their rights. They are encouraged by the Human Rights Commission and like Commonwealth and State bodies, to demand rights, with no consideration for the effect of those demands on other people, eg the right to protest and demonstrate conflicts with the right of pedestrians and motorists to use the public roads for the purpose for which roads are built. Governments and pressure groups which focus on rights, give no thought to how rights can operate in the absence of a climate in which the importance of duties is emphasised. There is no end to the so-called rights which can be demanded. A right-conscious society, in effect, recognises a few rights and neglects many others. The rights that are recognised are those which are demanded by the powerful, the aggressive and the nasty. There cannot be a right without a duty. An endless cacophony of demands by interest groups for rights has become a dominant feature of the modern Australian State (fed by legislation which encourages these demands). At the same time there is a deafening silence on the question of individual responsibility. The time has come to realise and to emphasise that rights, whether material or political, depend on the discharge of duties. Wealth and prosperity are created by effort. Only continuing effort can sustain them. Western societies through effort have achieved a level of prosperity unparalleled in history. History has continually demonstrated that the greatest of civilisations decline and fall when they succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman civilisations are prime examples. It is not too early for Western Civilization to heed the supreme lesson of human experience.

23. Pride And Patriotism


A missing dimension in public debate is an emphasis on achievement and what goes with it pride. Pride (without complacency and with an awareness of imperfections) is important in spurring individuals and a society on to greater achievement. The loss of faith in the achievements of the past, history and traditions can be an important factor in the decline of a culture or a civilisation. It is sad that with so much to be proud of in the history of western civilisation, young people today are being psychologically abused in their classrooms with tales of atrocities of the past and forecasts of doom for the future. This abuse is continuing at all levels in society, media and politics. There is clearly a relationship between this negative world view, and the unprecedented problems of modern western youth in an age when things have never been better in material terms. It is fashionable in some quarters to downgrade patriotism and regard it as a dangerous concept. Nationalism carried to extremes leads to ideas of territorial conquest and assertions of racial superiority. However, it is a sense of national pride and purpose that enables residents in a particular area to rise above the divisions of race, politics, ideology, class and the like. It is patriotism that unites the people and enables them to rise above narrow sectarian and other interests. A sense of unashamed pride which does not degenerate into jingoism or imperialism is essential for the growth of individuals and the development of a nation. A sense of national pride has spurred achievements in science and technology (the space race), sport and in economic development. The British belief in justice, fair play and their constitutional and legal institutions provided motivation to develop and export these ideas and institutions to various parts of the world. The American pride in the entrepreneurial system provided the impetus for a great deal of scientific, technological and economic development. Pride in the past and patriotism (within bounds and without complacency) are essential to real human progress.

24. The Reality Of Welfare And Welfare Rights


An explanation of the reality of welfare and welfare rights and how they are being interpreted in Australia in 1996

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Welfare In The Western Democratic Order Political History Of Charity Wealth And Poverty Welfarism No Longer Restricted To Poor Welfare Restricted To The Genuinely Needy Private Enterprise And Reduction Of Poverty Soak The Rich Welfare And Increasing Government Keep The Poor, Poor Welfare As Disincentive To Work The Origins Of The Welfare State

24.1 Welfare In The Western Democratic Order


One of the important features of the modern state is the welfare phenomenon. What place should welfare occupy in the scheme of things in the western democratic order? Welfare for the genuinely needy and underprivileged is desirable but welfare in modern times is not so restricted. One of the greatest myths in modern politics is that the concern for the poor and the underprivileged is shared only by those who put forward reformist proposals involving government activity and largesse. The opponents of this philosophy are perhaps partly responsible for this totally misleading impression because of their failure to communicate their philosophy in its total import. There are several important facets of the problem of poverty which have been deliberately obscured by marxist and socialist rhetoric. Amongst them are the following: i. Relief of poverty has a political history which predates government regulationism by many centuries ii. Liberal capitalism is essentially a means of gradually reducing poverty and deprivation by the creation of wealth. Socialist propaganda has convinced many that the creation of wealth is the antithesis of the relief of the poor. Nothing is further from the truth.

iii. The object of modern welfare policies is not the alleviation of poverty but the equalisation of wealth. Although the two ideas marginally overlap, they represent totally distinct goals. Each of these points is analysed separately.

24.2 Political History Of Charity


Charity was a part of western civilisation long before it was nationalised. Charity has been a virtue recognised and fostered by religion throughout human history. Christian charity has been an integral part of European civilization. In medieval Europe the Church bore the responsibility for organising and promoting poor relief and it was not until the 16th century that the state began to take over this responsibility. See Roger Lockyer, Tudor and Stuart Britain, 1471-1714, London (1964) p 138. In England the first statutory measures to alleviate poverty were enacted in the late Tudor period. Relief, however, was directed not at the population at large but at the poor and disabled and the method employed was to place responsibility on the parishes which were helped by a poor rate. However, even in that period, there was a resurgence of private charity and a resentment of state paternalism. To many merchants, particularly those who had risen from little or nothing, paternalism was anathema ... Paternalism produced the poor laws, but this generalised form of relief was no more acceptable to the merchants than indiscriminate monastic almsgiving had been. They set an example by contributing more than half of the vast sums of money provided for private charities which were, in the long run, probably more effective than state aid for the poor. (Lockyer, op cit, 152) The philosophy of these enlightened merchants was that the people should be helped to help themselves. In accordance with this philosophy, they poured money into the comprehensive remodelling of the English education system which, together with the entrepreneurship they propagated, made Britain the most prosperous nation on earth. The Christian ethic as interpreted by the puritan middle class called for dedication to work, honesty, thrift and charity. It was fundamentally opposed to the corruption and paternalism associated with the institutionalised church and state. Until the 20th century, welfare continued to be characterised by its focus on the genuinely poor or disadvantaged, the localised system of distribution and the emphasis on private duty to help one's fellow man. The movement to centralised and generalised welfare drew its main inspiration from Benthamite philosophy. However, the two world wars acted as catalysts to this process by making governments feel that, in the situation of war, society needed to be organised and provided for by central management. The socialists who came to power after the second world war found these arrangements totally conducive to their philosophy and proceeded to entrench the system permanently. The nationalisation of benevolence was carried through during the second World War, even before the socialist victory of 1945, but it was the post-war Labor government that completed the transformation of benevolence from a concern for some people into a concern for all people's needs. The objects of that concern were no longer a particular group, the needy, but

the totality of needs - needs of education, health, "welfare", and "security", the last two being open ended concepts that could receive almost any content. (Neil McInnes, "The Politics of Needs - or, Who Needs Politics?" Human Needs and Politics (ed Ross Fitzgerald) Sydney (1977) p 242).

24.3 Wealth And Poverty


The second major factor which has become obscured by socialist sloganism is that the creation of wealth directly and indirectly contributes to the elimination of poverty. The philosophy of capitalism works for the alleviation of poverty at two levels. Firstly it destroys artificial social and hierarchical barriers and generates opportunities for the poor to become rich or less poor. The modern socialist will argue that this reasoning is fallacious because those with capital will exploit those without it and therefore the rich will become richer and the poor poorer. The scope of this paper does not permit refutation of such specious arguments. It is sufficient to remind ourselves that capitalism, where it has flourished for any length of time, has had a better record of reducing poverty than any system of state paternalism. See the quotations from Friedman and Williams in section 3. At the second level, capitalism, by the creation of wealth, promotes benevolence. Human beings whether poor or rich have characteristics both good and bad. Capitalism makes benevolence affordable to individuals. The great charity foundations of the United States which have benefited all mankind through the advancement of learning and science are byproducts of free enterprise. Under socialist welfarism benevolence and charity becomes the responsibility of the state. Individuals are deprived of their capacity to show concern for their fellow men by being deprived of their wealth, through taxation and other controls. Vast bureaucracies are set up to extract money from the public and to spend it on state determined priorities. In the process, the bureaucracy itself soaks up most of the public revenue.

24.4 Welfarism No Longer Restricted To Poor


The third forgotten fact is that welfarism today is no longer the alleviation of poverty but rather, the equalisation of wealth. Social security payments are but one aspect of the modern welfare system. They constitute the tip of the iceberg. In Australia, the state provides free hospital care and education. It has legislated to impose minimum wages. It controls almost every aspect of the economy in its efforts to provide people with benefits of one sort or another. There are innumerable price controls, price supports and product and service standards. Industries must satisfy a plethora of regulations meant to ensure consumer or employee satisfaction. All these benefits are granted to the society at large, irrespective of the

individual's capacity to satisfy his own needs. Welfare is no longer the entitlement of the poor or needy but is the expectation of all persons. All this entails a price. The financing of the pervasive welfare system requires taxation and regulation. The welfare bill is met by taking away personal incomes and personal freedom. The modern welfare system is established and maintained on the pattern of taking individual wealth and distributing it to the public at large. The underlying principle of the welfare state is that the state and not the individual should bear primary responsibility for personal well being.

24.5 Welfare Restricted To The Genuinely Needy


The idea that welfare is a universal necessity which must be satisfied even at the cost of limiting individual freedom is a dangerous one. The guarantee of a minimum welfare income is compatible with economic freedom and the market order. It can be justified on ethical as well as economic grounds. By alleviating poverty, society benefits economically. Reduction of poverty increases productive human resources and stimulates the market. It promotes social harmony and promotes the spiritual wellbeing of the community. But the alleviation of poverty is quite a different proposition from the egalitarian objective of the modern welfare state. The welfare state was built on the wealth generated by the growth of capitalism. Profits of private enterprise yielded the taxes which enabled governments to embark on their ambitious welfare programs. However, the wheel has now turned. By imposing unreasonable and everincreasing financial and regulatory burdens on the market, the state is gradually destroying the sources of wealth. It is, in fact, proceeding to kill the geese that have been laying the golden eggs.

24.6 Private Enterprise And Reduction Of Poverty


Under capitalism and under every other system there is poverty. Critics make much of the poverty in capitalist countries - more accurately semi-capitalist countries (since the influence of socialist ideas is pervasive in all capitalist countries) but poverty has existed and will exist under any system as long as human beings are different and ambitious to varying degrees. Where capitalism has reasonable scope for operation there is less poverty and better living standards than under any other system. Capitalism will operate to reduce inequality and poverty unless subverted by radical socialism and violence. See further the above quotations from Friedman and Williams in section 3.

The statistics in 24.7 emphasise that the economic support for government bureaucracy and regulationary programs falls on the relatively lower income groups. The reason is that they are the more numerous. The relatively few wealthy persons constitute a minute fraction of the total population. Likewise their considerable combined wealth is insignificant compared to the total income of the lower income earners. The consequence is that regulatory programs and welfare which benefit the relatively wealthy, must be paid for by the relatively less wealthy. The main winners from Affirmative Action and Anti-discrimination policies are relatively affluent upper middle class women. The costs of these policies are borne by the lower income groups. The operation of Medicare, the education system, environmental policies and many other government programs endure to the benefit of the wealthy and the relatively wealthy and are paid for by the lower income groups.

24.7 Soak The Rich


Viv Forbes,Common Sense, September (1985) p 7. Incidentally we have a few misguided people around who believe that if only we could soak the rich all would be well for the rest of us. Let us define as rich, anyone with a taxable income of over $40,000 per year. According to the latest statistics produced by the Tax Commissioner there are above 88,519 individuals in Australia with taxable incomes about and over $40,000 per year. The chief taxer already takes an average of 42% of their income. If he took the lot, the additional taxes gathered would keep the entire bureaucracy going for just 8 working days. Incredible though it sounds, Australian governments are currently spending at the rate of $364 million per working day. Soaking the rich is not an option. The bulk of the taxes must be paid, as they always were paid, by the bulk of the people. (The poor pay for modern welfare and the middle class and rich benefit.) There are about 4 million families in Australia. With governments now consuming $90,000 million per year, every family is liable for a bill of $22,500 per year. To meet these liabilities, governments are robbing the savings of the past generation with continuous inflation, bleeding the earnings of the current generation with excessive taxation, and saddling the future generation with crippling debt.

24.8 Welfare And Increasing Government Keep The Poor, Poor


The democratic order has permitted the poor to progress and develop through hard work. There were many rags to riches stories. There were also many examples of not so spectacular successes but of significant social mobility. This is not happening today to the same extent. Rags to millionaire stories are not often heard these days. The reason is that expanding government regulation has made it very difficult for the entrepreneur, especially for those who do not know the ropes. A successful businessman must know his way through the maze of government regulations. This provides a very significant advantage to those already in the system or who have access to those in the system. An aspiring entrepreneur who is an outsider without any connections is deterred by the mass of regulations. Likewise, welfare has the unintended effect of keeping the poor, poor and within their station. At an earlier period in the development of western civilisation, the poor could rise, provided they were willing to work hard (harder than the privileged). By taking away the incentive to work, welfare has ensured that the poor generally remain poor. Welfare has made it more profitable for the poor to choose leisure than to work.

24.9 Welfare As Disincentive To Work


A cry from a worried father in the Letters column of The Australian on Thursday, 12th June 1986 illustrates the debilitating effect of welfare on young people: Sir I am the father of a young apprentice boat builder. My boy is 18 years and in the second year of his apprenticeship. He rises each morning (six days a week) at 5.30 am, his mother cooks him breakfast and he leaves home at 6.15 am to be at his place of employment by 7 am. He puts in a hard long day, he averages 45 hours a week, its dusty, dirty and physically exhausting, as one would expect. He does all the cleaning up, even using his own utility to take rubbish to the dump. His boss, the boat builder, is a most competent craftsman, a young man himself with two small children and an ambition to build the best boats in Australia. They take eight months to hand build a 42 ft cruiser. Each boat is a true work of art. I am pleased for my son. He is learning a really great trade but it is a demanding job and there is little time for outside activities or pleasures like surfing.

Unfortunately, most of my son's friends are unemployed. They had no need to work as at 18 years of age they receive unemployment benefits of $88.20 a week, plus they can earn up to $30 extra a week without jeopardising their benefit. Most of these boys are excellent sportsmen, six of them live in an old rented house. They have a combined income of $529.20 a week and can earn another $180 a week without affecting their unemployment benefit. Usually they don't bother because $529.20 per week is quite enough. Well, my son is just a little bitter. He is paid around $160 a week clear for a six-day working week. The money is fine for the time being but his lifestyle in comparison to his friends is appalling. You see, the fibreglass and resins they use have inherent problems to the user but that is something you have to put up with. Its a hell of a job to keep him motivated. The good life is all around him and obviously he would like to join his friends on the coast - laugh, drink beer, catch a few big waves, maybe make love in the mornings or live in Bali for a couple of months. How do you know that lifestyle? Its really living! Follow the sun to Red Bluff in winter, spear a few rock lobsters, take up with a good-looking girl, enjoy life to its fullest. Life on the dole for an intelligent, motivated, organised, single young man is quite pleasant. Why should they strive and work and learn a difficult and sometimes dirty trade? Why should they work in cold draughty sheds or rise each day at 5.30 a.m. when their friends are sleeping in. Do you blame my son's friends for their preferred lifestyle? I don't. They have it made, thanks to our generous Government. Tomorrow is another day. My question: Can we afford this situation? I think not. What do you think? Richard Fordham, Hollywood, WA Modern welfare encourages young people to pursue a life of leisure which provides no opportunities for advancement. An individual finds commitment and meaning in life in productive employment - which the welfare system in effect denies to these people by providing incentives to opt out. The education system is also partly responsible. The undermining of discipline and the basics in education has not prepared individuals for the real world of work and discipline. The common argument which is adduced in response is that the unemployed are not unemployed by choice. Many business people advertise jobs and cannot find those willing to take them up. Many unemployed are choosy about jobs. They reject jobs which require hard work. Their education and training has not prepared them for the commitment and discipline that is required for regular employment.

24.10 The Origins Of The Welfare State


The welfare state was the result of special interests successfully demanding the satisfaction of their parochial ends at the expense of the community. The public at large was never informed about the costs of implementing regulationary and welfare policies. Political parties only make promises at election time. They do not demand the power to impose taxes or to curb liberty. If the promises were made conditional upon the sufferance of the actual costs, it is very unlikely that many regulationary and welfare schemes would ever have received public support. However, once governments are elected, they assume a mandate to impose taxes and to regulate personal lives and the economy in order to deliver on the promises. It took a long time even for economists to realise the full cost of regulation and welfare in economic and social terms. Even after public awareness has emerged on these issues, governments have succeeded in pursuing regulationary policies by deceiving the public regarding their true intentions. Although the welfare state was not initially the product of the genuine wishes of the people it has now made large numbers of people dependent on it. It has produced a kind of social addiction to welfare. If the size of government is to be scaled down, it is essential to communicate the message that there is no such thing as a free lunch. The nation as a whole pays dearly for this dependence on welfare. The welfare philosophy is to a great extent responsible for the economic decline and social decay of this nation. The greatest irony about modern democracy is that it is in the name of democracy and consent that vast powers have been accumulated by government and the liberties and real wishes of the people denied. Modern democracy was the product of the struggle to contain the power of government, then represented by the King. The King was able to govern against the wishes of the people on account of his extensive prerogatives and the vast patronage that he commanded, with which he was able to control even members of Parliament. After a century of struggle, Parliament was able to drastically reduce the King's power and to extend the franchise to the people. The Ministers of State became responsible to Parliament rather than to the King and Parliament itself became representative of the people. A century later, the wheel appears to have turned the full circle. Governments are no longer effectively responsible to Parliament and Parliament has largely ceased to represent the actual wishes of the people. The government is led by the party which has come to power by making extravagant promises to the electorate. Actual government policy is determined by trade-offs between powerful interest groups. Looking back at the decades of socialisation, social control and steadily expanding government, one finds it difficult to understand how a population mainly committed to conservative values has permitted such a development. The popular belief is that the welfare state and the immense powers needed to administer it were created by the people's democratic choice. In recent years, a wealth of information has emerged from the work of economists and philosophers which effectively disproves this theory. This work, mainly represented by the so called "public choice" theorists, has demonstrated that what have been implemented as "popularly accepted" programmes have more often than not been measures which have actually been directed to serve particular sectional interests. They have shown

that the way in which modern democracy operates has been conducive to the prevalence of special interests over the interests of a genuine majority of people. What passes for majority opinion is often a deal struck amongst collusive interest groups and government. The important reason why the welfare state was not resisted was because the public was neither aware nor informed about the costs entailed in terms of money and personal freedom. At elections, governments merely promise welfare. They do not at the same time demand extra revenue or enlarged powers. If such demands accompanied the promises it is highly unlikely that the people would accept them. Once elected on such a platform, governments assume that they have a mandate to impose taxes and to regulate personal lives and the economy in order to deliver on their promises. There is more recognition of economic realities as a consequence of the recession and unemployment (yet the words of welfare activists showed that they understand nothing). But it is difficult if not impossible to withdraw benefits which have been conferred in the past. However, there is another explanation of the growth of the welfare state which is rarely considered in the discussion of public policy. That is the extent to which the proponents of socialisation and big government have perfected and applied the art of public deception. The recent and contemporary political history of Australia is replete with evidence of such deception.

25. Evolutionary Change And Conservatism


The values and institutions of the democratic order are the consequence of a process of gradual development. This dimension, which has surfaced in many parts of the above analysis (particularly in the analysis of the common law), cannot be over-emphasised. The word "conservatism" is today a dirty word. The term "conservative" is often used as a term of abuse. A popular definition of a conservative is of one who stands for the status quo. Very few people are for the status quo and satisfied with all aspects of it. An evolutionary conservative could be defined as one who is in favour of gradual change but is distrustful of those who attempt to destroy existing institutions without having a clear understanding of what they are putting in their place. It is easy to demonstrate the inadequacies in existing institutions and to suggest change without realising that the suggested changes may produce more problems. They may remedy some disadvantage of the existing system but give rise to other unforeseen disadvantages. A conservative would say that he believes in weighing what exists before discarding it and in testing what is proposed in the light of circumstances, prudence and experience. These familiar conservative lessons will not sound quite so banal when the development of European political and intellectual life since 1789 is borne in mind and when it is remembered what has been done in the name of equality, social justice, etc, in revolutionary France, in Hitler's National Socialist Germany, in many communist societies in Europe and more recently in Africa, the Middle East and Asia (Vietnam, Cambodia and China). The gradual change being effected (cumulatively very considerable) in so-called democracies is proving to be counter-productive and is providing ever increasing power to government. History has many important things to say about the fate which awaits men who despise a limited style of politics, the politics of imperfection, and set their sights too high. An evolutionary conservative could have a sensitive feeling and concern regarding social injustices. But he believes there are no easy (and sometimes no difficult) solutions to human problems. He believes that the great enemies of society are the misguided reformers who believe with unashamed arrogance that they have solutions to complicated problems and wish to use the police power of the state to impose their views on society. An understanding of the evolutionary and unplanned development of liberal values and institutions is essential to an analysis of the rise of western civilisation. This aspect does not easily lend itself to analysis. It is therefore an undervalued factor.

26. The Consequences Of Reformism And The Size Of Government


Figures and indicators provide some perspective on the growth of government. Public sector outlays as a percentage of GDP in 1985 were 43.9%. This meant that 43.9 per cent of the expenditure in the economy came from government. This represents a 30% increase over the last ten years. Australia is no longer a land of private enterprise. The percentage of public sector employees in Australia as compared to other countries is informative. In Australia, 25.4% of employees are in the public sector. The figures for other countries are: United Kingdom 21.7%; Canada 18%; USA 16.7%; Germany 14.9% and Japan 6.6%. Legislation in the modern age is more often than not directed at the implementation of government policy. As such the extent of legislative activity constitutes a reliable indication of the expansion of government. In the period 1966-80, Australian legislatures (Commonwealth and State) passed 12,612 statutes and the executive branches made a staggering 25,986 sets of subordinate legislation (regulations, rules, orders etc) under powers delegated to them by parliament. This constituted a 40 per cent increase in primary legislation and a 62 per cent increase in subordinate legislation over the statistics of the previous decade. A majority of these enactments were regulatory and hence intrusive upon private rights and freedoms. Another leading indicator is the extent to which governments have appropriated personal incomes and national resources for their own purposes. The welfare concern has always been a key feature in government policy in Australia. Yet until 1966 the tax burden on the public remained tolerable with the increases being quite gradual. In the 20 year period 1966 to 1986, government expropriation of private wealth became double that of the entire period dating back to federation. During the same period, the numbers of people employed by government out of public funds increased by 800,000. The Commonwealth was established in 1901. It took 75 years for federal government spending to reach $20 million a year (including the Whitlam spending spree - an era of thoughtless extravagance). By 1982, only six years later government spending had jumped to over $40,000 million. In 1985 only three years later government spending had topped $60,000 million a year. In 1987 (after two more years) spending exceeded $75,000 million. Even allowing for inflation these figures provide an example of the growth of government. In apportioning responsibility for these developments a distinction can be drawn between Commonwealth and State governments. States in fact have accounted for 50 per cent of all government expenditure, 65 per cent of all public employment and the vast majority of invasive laws passed by government. Both Labor and Coalition governments are responsible for the expansion, although the extent of growth under Labor per year of office on the average is much greater than that under the Coalition. This vast expansion of government was undertaken for the purpose of progressively improving the lot of Australians. But some basic facts indicate that the results have been quite the reverse. In 1966, Australia had virtually full employment. Today, by conservative

estimates, unemployment stands at almost 11 per cent. In 1966, the average income earner paid 16 per cent of his earnings in income tax. Today he parts with a quarter of his earnings in income tax and a further 15 per cent in indirect taxes and other imposts. Although welfare spending increased by $18 million (from 18 per cent of the Commonwealth Budget to 28 per cent) poverty has actually become more widespread. That is not all. An ambitious attempt to nationalise health care has left the hospital system in deep crisis. The public education system from primary to tertiary levels has been undermined and weakened. Governments are unable to cope with their essential function of protecting the citizen against rising crime. The expansion of government into areas previously regulated by private arrangement has actually provided opportunities and encouragement for corruption and fraud by both officials and private citizens. The growth of government is the consequence of governments undertaking many tasks which could have been, all things considered, better left to private enterprise. This is illustrated by the following examples: Government hospitals cost $320 per head per day to run while non-government hospitals cost $150 to $160. (Dr Paul Nisselle, President of the AMA). In NSW it costs the Government Urban Transport Authority $3.20 per kilometre to run a bus compared with $1.60 for private buses (R. Travers Morgan P/L Transport Consultants). In Australia's government electricity producing authorities, output per man is about onethird of private producers in Germany who use similar technology (Dr Peter Hartley, Centre of Policy Studies, Monash University). In 1980/81 the management cost of the government-owned Medibank Private took 50 per cent more out of members contributions than the major private Health Insurance Funds IPA Review, Vol. 36, No 3. Despite the fact that both TAA and Ansett operate under identical market conditions, Ansett put in a performance that was several percentage points better than TAA (Dr Robert Albon, Australian National University). Private laundries in Victoria can clean hospital linen for up to 16 per cent less than the Government's Central Linen Service (Victorian Department of Health). Prior to privatisation, the Commonwealth Bank's performance in terms of returns on assets and earnings per employee was inferior to that of the private banks in Australia (Paul Coughlin and others, Graduate School of Management, Melbourne University). The above illustrations are extracted from Facts, Autumn (1986) p 4. Figures can provide a misleading perspective on the nature and extent of government activity in Australia. The proponents of bigger government will argue that by comparison to Scandinavian countries, Australia rates very favourably. The figures quoted are the government expenditure component of GDP. This in itself is not an argument. It is not an achievement that Australia is not at the top of the big government ladder. Figures are often misleading because they are compiled according to different criteria in different countries. The definition of public servant and public enterprise varies. Problems arising in this context

include the manner in which statutory institutions (such as ABC, Telecom) and public-private sector joint enterprises (Qantas) should be classified. Figures also do not demonstrate the extent to which some Australian regulations are avidly anti-business and anti-private enterprise. Governments in Sweden may spend a far greater amount as a percentage of GDP. A great deal of this money is expended on welfare and government activity. On the other hand, Swedish governments have tended to tax small businesses, but leave them relative freedom (by comparison with Australia) for entrepreneurial activity. In Australia small business is more heavily regulated and is subject to active discrimination. The industrial system in Australia is regulated in a manner which finds no comparison anywhere in the democratic world. The Fringe Benefits Tax is an example of anti-business activity. A Fringe Benefits Tax imposed on the person who receives the fringe benefit is legitimate. Levying the tax on the business is symptomatic of the exploitative and antibusiness attitude in Australia which finds few parallels in the democratic world. The closest parallel was the United Kingdom which, however, under Thatcher has dismantled some of the most obnoxious features of the anti-business attitudes. Supporters of interventionism are prone to refer to OECD figures to argue that on a comparative level Australia's public sector is not as "big" as those of other OECD countries but under the OECD definition, general government outlays include only those public enterprises which mainly produce goods and services for government itself or primarily sell goods and services to the public on a small scale. Australian budget statements, however, define the public sector as including all public authorities. This is a more realistic measure of the public sector. Academic supporters of interventionist government activity focus on the OECD figures rather than the measurement adopted by the Australian government, which is more realistic. Government regulation and control cannot be entirely measured by figures, though figures provide a valuable indication. Mancur Olson, The Logic of Collective Action, Cambridge (1971) p 133, argues that Australia has some of the highest import tariffs in the west. He calculates that "their levels of protection are two or three times the level in the OECD and the United States and four to five times as high as those of Sweden and Switzerland ... the impact of protection levels that are uniquely high by the standards of the developed democracies is made even greater by the small size of Australia ..." Australia has also the most highly regulated system of industrial relations in the democratic world. Some of the other factors peculiar to Australia mentioned in this chapter combine to present Australia as one of the most regulated countries in the free world, if the effect of protection levels and industrial regulation is taken into consideration. Paul Johnson in his book History of the Modern World, London (1983) demonstrates how in England government spending as a proportion of the gross national product fell from 15% to 8% between the years 1830 and 1890. This period, he also documents, witnessed the longest sustained period of rising living standards in that nation's history. This combination of

economic and social advancement in the context of individual liberty was in the view of Paul Johnson "not only the most important event in secular history but the most beneficial". The gradual improvements in living standards and the slow but sure reduction in poverty from the Industrial Revolution to the early part of the twentieth century took place in the context of limited government and individual freedom. But as the size of government began to grow in the twentieth century (from the 1950's) progress in the slow reduction of poverty process began to taper. There is an inescapable connection between the growth of government in the last few decades, in the western world, and the increase in the levels of poverty, together with the tapering off of the rise in living standards. The growth of government marks the end of the long period of the gradual reduction of poverty. The industrial revolution emerged within a political environment which gradually minimised the role of government. Paul Johnson points out that this development took place not because of the state but in spite of the state and "was made possible largely through the withdrawal of government from economic affairs". The western democratic order has made possible a greater degree of freedom and provided better avenues for expression of views and human action than has existed at any known point in the history of organised societies occupying a significant area of territory and containing a large population. These commonsense perspectives and lessons of history are being lost. Big government is growing bigger. If the present trends are not reversed, the indications are that the optimum levels of liberty have been reached and the future will witness a steady decline. Private enterprise has been an essential factor in the development of liberal and representative democracy. Restrictions on economic freedom except those which are essential unduly restrict the scope of freedom. Freedom has never been more important than today, when there is an aggressive, fractured but extremely effective challenge to freedom from those who criticise and exaggerate the evils of private enterprise, calling for bigger and bigger government and for ever expanding government expenditure on a variety of activities. The argument has been made above (section 3) about the trickle-down effect of expansion of the private sector which reduces inequality and provides higher standards of living. Christ said, "the poor you will always have with you". This a statement of a realism, not of cynicism. The process which operated through the nineteenth century and up to the 1970s was gradually reducing levels of poverty and inequality. Recent figures for the US together with general historical perspectives demonstrate that, as government became bigger, the process has gone into reverse in the last decade. Up to the 1970s, the rich were getting richer and the poor were getting less poor. From the 1970s onwards, the very rich are still getting richer, the employees in the government sector, with indexed incomes and fat superannuation, as well as private individuals who, and organisations which, receive benefits and patronage from governments, are holding their own, but the poor are getting poorer and many others are finding that standards of living are falling. The cause is the growth of government. A standard response of regulationists to the pleas for smaller government is to argue that this amounts to support for the laissez-faire system which in the nineteenth century was

responsible for exploitation and suffering. The problems of nineteenth century Europe arose not from laissez-faire but from the then existing feudal based laws and regulations, administered by government, which prevented the formation of associations of workers (trade unions) and in other ways discriminated against workers. The present argument is not for laissez-faire (no government), and not even for small government, but for prevention of increases in, and for gradual reduction of, the magnitude of modern government. As government grows, expenditure correspondingly increases. Such expenditure is met in four ways: i. by direct and indirect taxation; ii. by other government payments and charges, eg exorbitant and unnecessarily high telephone fees, postal and electricity charges, which reflect the waste and the inefficiency of government; iii. by borrowing, which pushes up interest rates; or iv. by printing more money, which causes inflation. All these factors, especially the first, affect private business that alone can provide full employment. There is a direct correlation between growth of government (and government expenditures) and unemployment. One of the often repeated socialist demands is that government take action to deal with unemployment. How can government create jobs? An employee must be paid a wage. Where will the money come from for the payment of his wage? A great deal of the money for most government servants and those in statutory enterprises comes from the tax payer and other government revenue which consists largely of various types of levies and charges on taxpayers. A major part of the money to pay for government jobs must necessarily be extracted from private enterprise and individual taxpayers. Government enterprises such as Telecom (restricted competition introduced recently) and Australia Post pay employees from profits. Yet these monopolies are characterised by excessive charges in the case of the former and notorious inefficiency (as well as high prices) in the case of the latter. Other government commercial enterprises such as the railways, electricity commissions and Qantas function at a loss. The taxpayer is subsidising these. Government commercial enterprises are exempted from many of the taxes, levies and charges which private institutions must pay. There are other government departments and educational institutions where the entire burden of paying for the employees falls on private companies and individuals. On the other hand, the private sector, by and large, pays its employees out of its own earnings. Some private enterprises are supported by government. These are not examples of private enterprise and should be phased out. They are properly characterised as part of the public sector or as constituting a private/public sector. The employees in the private sector earn their keep. The common sense and practical dimension which those who demand government job schemes ignore is that most government jobs must be paid for by individuals and business.

27. The Spirit Of Inquiry And The Critical Spirit


Why is it that the values and institutions of the democratic order are under attack, notwithstanding their great achievements? A major reason for this could be said to be a perverted or distorted critical spirit. The spirit of free inquiry is an integral part of western civilisation and liberal values. It has made a great contribution to the rise of western civilisation. It is the difference between democracy and dictatorship. It has been responsible for social, political and economic development. The spirit of free inquiry has spawned many an invention in science and technology. It has been the basic thread running through the rise and achievements of western civilisation. However, a recent trend, based on a deep seated antagonism, is to increasingly turn the spirit of free inquiry on the values and institutions of the western democratic order. These values and institutions are subjected to popular as well as academic critical analyses (as distinct from evaluations) which expose, accurately or with exaggerations and distortions, the manner in which they function and operate. They are tested against ideal or near absolute standards or values. By comparison, socialist and communist institutions and systems are analysed by reference to sub-human considerations. Another technique is to compare the practice of the operation of the democratic order (often with exaggerations) with the theory of socialism. The academic analyses are conducted at various levels empirical (often with selective data collection or predetermined hypotheses) or theoretical and abstract. The main weaknesses in these approaches are the missing dimensions - the benefits are not examined and criticism does not move towards evaluation. The realities of human nature and the differences between human beings, the inevitability of man made and natural accidents and disasters and the harshness of, and the problems arising from, the environment are not considered. No comparative study is made with other systems. No, or little, allowance is made for imperfections, that will exist in any human situation. The human limitations that will affect the judgement and horizons of the drafters and administrators of legislation are not taken into account. Reforms are formulated without consideration of the financial costs and possible counter productive effects. The consequent restrictions on freedom, initiative and the striving for excellence that are necessary consequences of government regulation are not appreciated. The strengths of the pre-existing evolved situations are not taken into consideration. The problems which arise from government action and the unpredictability of the practical operation of legislation (the practice being very different from the stated aims) and the cost and financial implications for government and for the tax-paying community are ignored. Many critical analyses of human problems and solutions, based on proposals for legislation leading to government regulation of the economy and social matters, proceed on the identification of a problem and a perceived need for action. The proponents of the need for action to deal with a problem or an injustice do not ask the question whether it is practical and possible to draft a law and put it into effect. The need leads to regulation without a consideration of the possibilities. They do not take account of the complexities involved in forecasting human action and interaction, the natural limitations in the hearts and minds of the men who will be the legislators and the administrators, the restrictive effects of

regulations on human action and initiative and the financial costs of regulation for business, for those affected and for government (the financial costs for government being borne by the tax payer). The spirit of free inquiry is now competing with a critical spirit. There is now a "critical spirit" in education, media, politics and society which has been directed towards criticism and not evaluation. A further dimension is that the education system and the public affairs media close themselves (with varying degrees of aggressiveness and intolerance) to those contrary viewpoints and perspectives which relate to freedom and the achievements of the western democratic order. The standpoint which prevails is that of increasing denigration of freedom, of private enterprise and of related values and institutions. The prevailing belief is that government regulation can solve problems and that there must be more of it. This new critical spirit is running in a narrow channel and is becoming self destructive. It is no longer open to other views and philosophies - including those which were responsible for the rise of western civilisation. Freedom and tradition are consciously and unconsciously suppressed and censored in politics, the media and academia. The abuse of the critical spirit has been spearheaded by the social science faculties, departments and schools within universities in the western world. Social scientists are suffering from an inferiority complex. They have watched with awe and envy the achievements of science and technology and the extent to which the spirit of free inquiry has been responsible for such achievements. Social scientists, in trying to emulate the real scientists, have overlooked the fact that they write about things which are affected in different ways by human behaviour. A nation or a society or a section of a nation or society consists of individuals and each individual is in some respects an island unto himself. Individuals are not subject to inevitable movements as the objects dealt with in the sciences are. Human behaviour is determined by countless variables, including free choice. In this context it seems futile to attempt to develop absolute or near absolute concepts, theories and solutions for human problems in the same way, or almost the same way, that scientists in the natural and physical sciences attempt to develop concepts, theories and solutions. Social scientists too often do not realise the factors which limit and inhibit the studies they are pursuing. The above comments are not intended to deny the inherent value of all empirical social science research. There has been much valuable research. But a great deal of research has emanated from the social sciences which ignores or fails to give due weight to basic common sense perspectives, the values and institutions of the western order, the lessons of history and the reality of a world composed of individuals each one different from the other. The values and institutions of the western democratic order constitute a pretty rotten system if particular facets or problems are analysed, without a sense of perspective. It is a pretty rotten system until the alternatives are considered. What is needed is not merely criticism. It is necessary to proceed beyond criticism to evaluation. This is what most critics of the system fail to do. They fail to look at the negative and positive factors and to proceed therefrom to make a fair evaluation and only then to suggest possible reform. Commonsense (which is not common) leads to the perspective that there are no easy (or sometimes even difficult) solutions to human problems, be they in relation to law, government, politics, society, the economy or whatever. The problems of our times have been

compounded by those seeking quick solutions to human problems. The simple commonsense answer is that there are often no solutions other than the band aid remedies so reviled by activists. In seeking to apply half-baked, narrowly focused solutions to complex problems and relationships, the activists are themselves guilty of "band aid" quackery. Human beings and the forces of the environment (fire, water, winds, etc) being what they are, there will always be problems - great problems. Will freedom and limited government or ever increasing government regulation by law makers and bureaucrats be more likely to help humankind to cope? Which is the better alternative? This is the issue but it is seldom viewed in these terms, particularly by academics and would be regulators.

28. The Attack On The Values And Institutions Of The Western Democratic Order
Freedom is not an absolute concept. Freedom must be tempered by the laws necessary to preserve it. Freedom would be meaningless if any individual had the freedom to assault another. Freedom is restricted by a complex of laws. Freedom, it has been shown above, is tempered not only by law but by a series of values and institutions. The values and institutions of the western democratic order involve a balance between freedom and liberty on one hand and law and legal and social values and institutions which place restrictions on freedom on the other. It is a system which has gradually evolved over a long period rather than one which has been consciously created. In this sense it stands in contrast to the coercive systems in which a few attempt to mould individuals and institutions. The values and institutions of the western democratic order are under attack and the extent of freedom has gradually diminished in the last few decades. Free enterprise is under attack and escalating government regulation is weakening it. The idea of limited government has been replaced by that of an ever-growing state and bureaucracy. Respect for law and order and legal procedures is declining. Commitment to the work ethic is diminishing. Discipline is being undermined. The family is disintegrating. Religion and moral values are no longer as influential as they used to be. Tradition is ridiculed. Conservatism, with its emphasis on considering what is tried and tested before rejection, is a value considered to be outdated. The idea of gradual change is being rejected by a growing group of arrogant politicians, bureaucrats, academics, trade unionists, feminists, environmentalists and others, who believe that they have the answers to complicated human problems and whose reforms are often counter productive. The attack focuses on both the area of freedom and the restrictions on freedom. The explanation lies in a distorted critical spirit which, without evaluation, proceeds to analyse specific problems. Where the system permitted freedom, that area of freedom is under attack. Where restrictions on freedom have existed, these restrictions are likewise devalued and under attack. The attack on freedom, particularly economic freedom, needs no illustration. The figures provided in section 26 provide a dimension on the growth of government, which inevitably diminishes freedom, with consequences for individual freedom and private enterprise. However, at another level, the movement is designed to destroy restrictions on freedom. The family, religion, tradition and moral values are under attack. The sexual revolution, abortion on demand, removal of restrictive provisions in drug laws, attacks on the powers and authority of the police (which is indirectly an attack on law and order) and the calls for accountability of ASIO are other examples of attacks on the restrictions on freedom inherent in liberal values. An analysis of the manner in which proponents of change argue and operate provides an understanding of the manner in which a great deal of regulation has been put into place and existing laws and values undermined. The emphasis is on a problem human suffering,

exploitation, injustice, illogicality, etc. From this analysis of problems the transition is made to either the need for reform and regulation through legal enactment and powers vested in the bureaucracy, or for the destruction of existing law and moral values. A problem requires a solution and the solution is change (euphemistically called reform). The strengths of the existing system are often not appreciated and the costs of the reforms are often not evaluated. The self-styled reformist utopian will argue that the problems are so pressing that there must be government activity. The economists will speak about the problems created by freedom and the need for planning. The argument that there is a "need" for planning in a particular situation, when asserted by itself in the context of human problems, appears to be a compelling one. The regulationist or economist, however, does not consider whether planning, given human imperfections, will make the problem lesser or worse. The need is there, and therefore, with scant regard for human fallibility and all the problems and costs, the plans are made and then implemented. The argument is often made that the complications of modern life make planning essential. For the reasons adduced in the previous paragraph, the basic issue is not whether planning as an isolated issue is essential or not. The issue is whether planning can be effective - whether it will reduce or multiply the problems. See further sections 5.4, 16 and 26. A paradox which is often not appreciated is that the more complicated the society, the more difficult it is to plan. It becomes more difficult to understand the competing elements involved and the complexity of the nature of individual action and interaction. The more complicated the economy, the more difficult or impossible planning becomes. In a relatively underdeveloped social and economic system, planners with reason and common sense can pick schemes which will succeed and allocate resources on the basis of who will be the winners and losers. The modernisation of Japan, Singapore and South Korea it is said has been based on the ability of governments to pick winners. However, this strategy, even if successful in a period of relative underdevelopment, will not necessarily be repeated in a more complex structure, in which making intelligent choices is more difficult, if not virtually impossible. Another often overlooked dimension is that a great many of the problems in private enterprise do not arise from freedom and the market. They arise from government regulation. Monopolies or domination by a few large players are the product not of the market but of government regulation. It is government protectionism and government laws which provide the context in which monopolies are established. The two airline duopoly in Australia was based on legal protection, as are the broadcasting and telecommunications industries. The examples can be multiplied. Many of the problems which the critics say are due to the operation of freedom and the market are in reality the consequence of government intermeddling in the market. Government regulation that goes beyond the basic principles enshrined in the criminal, torts and contract law, generally does not succeed. Regulation is established and creates problems. The case is then made for more regulation. The blame is placed on freedom and the market, rather than on ill-conceived regulation, which is in reality the root of the problem. Failed regulation breeds more regulation in an attempt to correct the failures. The argument is often made that the original regulation did not go far enough. The problem often is that the original regulation itself was ill-conceived and unnecessary or went much further than was necessary.

There has been an unprecedented attack on the values and institutions of the western order from many quarters which have had a cumulative effect. Among those who have done most damage to the values and institutions of the western democratic order are people who call themselves "liberals" or who support "liberal values" but get carried away on particular issues by concern for manifest human problems and support counter productive reformist trends and proposals. The public affairs media in Australia and the western world in general (though to varying degrees) are not supportive of these values and institutions, which are fiercely attacked in some quarters. A similar attitude prevails in social science sections of tertiary institutions, the school education bureaucracies and teacher unions (although not necessarily amongst the rank and file). Politicians have been influenced by ideas emanating from media and education. Many politicians may substantially agree with the values stated in this book. Some may disagree. Politicians who do agree may not have the courage to stand up for all such values because of party discipline, the ridicule and largely sloganised and unreasoned comment which would follow from the media and the left (and also from some of their political colleagues). The Australian Values Study (section 35) provides interesting food for thought for a lacklustre Opposition which (a few exceptions apart) has a shadowy public commitment to the values and institutions of the order. It demonstrates the extent of commitment and support of the Australian people (outside politics, the media and the education hierarchies) for the basic values and institutions of the democratic order. There is a divergence between belief and practice. One of the causes of this divergence is the ethos and culture in law, politics, education, academia and the media which encourage conduct contrary to beliefs. Both major political parties have moved away from the values and institutions of the western democratic order under the influence of the demands of special interest pressure groups and, in the case of the ALP (and of some in the Liberal Party), because of the influence of ideology and (socalled) progressivist ideas. Australia waits for a political leader who has a true commitment to the western democratic order, translates its values into policies, proclaims those policies, exposes the failures and counterproductive nature of regulationism and (so called) progressivism, is willing to stand against the virulence and noise of the small opposing elite and to absorb the criticism and reap an electoral harvest.

29. Change
The history of the last one hundred years and more demonstrates the changes and reforms that relative freedom has brought about. It bears repetition (because it is so often overlooked) that in a little less than one hundred years mankind has moved from the age of the horse and buggy to travelling in space. There has been more change, more development and more reform in the last one hundred years than perhaps in the entire period of man's inhabitance of this planet, as a consequence of the existence of a greater degree of freedom, coupled with individual responsibility. It is significant that as government regulation has grown, the long period of rising living standards, development and reduction of inequality has tapered off. The 1970s saw a period of decline, reversing the trend of the previous two centuries. Modern reformers purport to effect changes through legislation and bureaucratic action. However, the effects of these changes through government regulation are invariably counter productive. Government regulations purporting to effect reform and change often have the opposite effect, inhibiting change. The free action and interaction of individuals and institutions, subject to limited government intervention, provides more scope for change and reform than does government action. The practical aspect of modern reformism is bureaucratic central planning. This involves individuals dreaming visions of the future. On the other hand, freedom and liberalism rely upon the interaction of individuals and institutions to lead mankind forward into the uncertain future. Galileo and Newton, those responsible for the industrial revolution, Locke and other philosophers and politicians who fought for limited government against the power of autocratic kings and feudalism, inventors and innovators, entrepreneurs and Adam Smith had no conception of where they were leading mankind. The changes beginning with the industrial revolution, leading to voyages into space, were essentially an unplanned movement based on freedom, limited government and human interaction. This unplanned movement is now susceptible to being over-directed and channelled by regulationists who call themselves reformers. Freedom leads to change. Regulation leads to stagnation, corruption and authoritarianism. The social democrats and single issue crusaders, in alliance with more extreme elements, carry through piecemeal reforms. Thus, each piece of legislation is examined by itself. No cost-benefit analysis is made of legislation. The proponents analyse with exaggeration the weaknesses and injustices in the existing system. Since each piece of legislation is considered separately there is no appreciation of the cumulative effects of legislation inter alia on freedom and the government budget. Thus, the task for the opponent of legislation is difficult. Proponents of legislation invariably argue that effects of limitations on freedom in relation to particular legislation are insignificant (underplaying the limitations) and justified in the public interest (a vague and ill-defined concept which lends itself to subjective definitions). The extent of freedom has been, is being and will be undermined by Acts of Parliament and regulations made under them, which,

separately examined, do not seem over burdensome but in their totality have major consequences. Reforms are often formulated and enacted into law without consideration of all or even some of the relevant factors detailed above (see sections 5.3, 5.4, 26 and 27). Reformists generally focus on genuine problems but not infrequently they tend to distort and exaggerate the nature of the problem. The words "counter productive" are used to emphasise that while the reform may yield certain benefits, they are counter balanced and outweighed by the disadvantages which are not foreseen, or if foreseen, are brushed aside when the reforms are drafted. Reformists, by trying to achieve too much through over regulation and over taxation, miss out on the practical and constructive reforms which can be effected. The effects are counter productive whether they are inspired by violent revolutionaries or by impractical social democrats with unrealistic ideals.

30. Coercive Utopians


(Social Activists) The most dangerous enemies of civilisation are not necessarily evil people. They are idealists (subject to qualifications stated below) who wish to use the police power of big government to impose their views and perspectives on others. They often do not enjoy majority support among the public. They reject the evolved experience of the ages. This is what distinguishes the coercive utopian from those who advocate restrictions on freedom in the liberal tradition. The phrase "coercive utopian" is a more apt description than "reformist". It does not however apply to all reformists. It applies to those who seek to use the power of the law beyond acceptable limits (see sections 5.4, 16, 18 and 26). It does not apply to those who seek to remove necessary restrictions on freedom. Reformists (so-called) often do not enjoy community support for their legislatively imposed and bureaucratically or judicially enforced changes. They therefore hide their real aims and introduce coercive measures gradually and incrementally so that people do not know what is happening and the opposition is divided and diluted. Modern coercive utopians have developed to a fine art the ability to hide the reality of what they are doing under the cloak of moderation. Their efforts in this respect have been assisted by the general failure of liberal and conservative politicians (a few exceptions apart) and people who believe in liberal values, to mount an effective counter attack. Thus, the coercive utopians are idealists (subject to qualifications stated below), who wish to impose their views and perspectives on others. They want to use the authority of government to achieve their ends. An important distinguishing mark of the coercive utopian is his preference for regulation as against education. The preference of the true liberal is for education (not indoctrination) and public debate which can bring about change. The changes of the past have come from philosophers and idealists who changed the values of people and the actions of people not so much through regulation (though regulation has a place, see sections 5.4, 16, and 26)but through educating people to voluntarily change and move forward. The reformists of the nineteenth century and before sought to achieve reform by repealing existing legislation (such as the feudal laws which enabled employers to exploit employees) or extending narrowly conceived legislation (such as the right to vote). The reformists of the pre-twentieth century era did not wish or need to establish bureaucracies to effect reform. They did not call themselves "reformists". Later generations evaluated their work and labelled them "reformists". In the modern State, self styled reformists are establishing bureaucracies and restricting freedom. If freedom of expression and the spirit of free inquiry (severely curtailed in the media and education systems) survive, future generations will not be able to point to much productive reform emanating from bureaucracies. They will focus on the great deal of counter-productive activity. There is an element of arrogance in people who advocate "change" under the title of "reform". They should make the case for change and leave future generations to determine whether the change amounts to reform or is counter-productive. The reformists are not necessarily Marxists and revolutionaries. There are probably fewer persons today who call themselves Marxists than there were ten years ago. On the other hand, the Marxist and neo-Marxist critiques of capitalism and property relations are growing in power and influence. Where is this leading? The influence of those who reject the dialectics

of Marxism but are influenced by the Marxist and Marxist-influenced critiques of capitalism and property relations are, so far as the effects of their actions are concerned, substantially nihilistic. They are nihilists in the sense that they are committed to the undermining and even the destruction of existing values and institutions - but their alternatives are not viable. For some, a combination of regulation and government expenditure derived from taxation will be enough. Others have blueprints for a new society based on unreal and impractical ideas such as participatory democracy, social justice, equality, etc. They are against what "is" and their prescriptions for the "ought" are unrealistic. It is in this sense that their influence can be viewed as nihilistic. They are not revolutionaries and therefore they do not appear dangerous. But their capacity to gradually destroy without constructive alternatives is easily underestimated. Communist regimes have been established in some countries by the forcible overthrow of the existing system. This will not happen in Australia and other representative democracies with a strong industrial and democratic infrastructure. The danger of Marxist socialist and other critiques of the tradition must be viewed in a nihilist sense. The problems of the near future for countries of the liberal democratic order lie not in a Soviet or communist style state or in a socialist state (socialism cannot ever be put into practice except in small voluntary communities). Nor is there a danger at present of a bloody revolution which would overthrow, in a short period, representative democracy, the capitalist system and its infrastructure. The threat that exists is of a gradual and slow undermining of the western democratic order and the growth of control over the majority by a partnership between big government, big bureaucracy, big unions, big business, big media and government-favoured pressure groups (feminist, environmental, peace, Aboriginal, etc). Two examples may be provided of the modus operandi of the reformists and coercive utopians. Labor when it controlled States in Australia, and the present Commonwealth government, has enacted draconian industrial safety laws which impose very heavy and unfair penalties on employers. An employer will be liable even if a trespasser or thief enters his property, slips and hurts himself. It is not possible to quarrel with attempts to provide for safety. But the regulations provide for punishment and fines upon an employer who may be guilty of no negligence. The implementation of the New South Wales Act involved the employment of one hundred inspectors to police the Act and only two persons to educate the public about safety. Safety could be emphasised through an educational campaign. Business, bearing the burden of spiralling workers' compensation costs, would readily accept an argument that more regard for safety will lead to a reduction in the insurance premiums. The emphasis is on regulation, not education. There is a more serious implication in penalising employers who have not been negligent. The provision seeks to apportion loss not on the basis of fault but on the basis of what is (spuriously) considered "equitable". The favoured interpretation of "equitable" is that the person who is more able to afford the loss is required to bear it, irrespective of fault or innocence. The concept of fault lies at the foundation of justice in that it is essential to a system of individual responsibility and individual rewards. See section 18.2. The Australian Parliament established a Human Rights Commission. The early emphasis was on education - a research institute promoting thought and informed and balanced debate about voluntary respect for, and the importance of human rights. The papers which have emanated from the Human Rights Commission and allied agencies, at considerable cost to the public, have been papers stating the case for more regulation. The Human Rights

Commission is not concerned about the totality of human rights. Such an analysis must take account of the importance of freedom and the need for duties and responsibilities. A right cannot exist without a corresponding duty. Human needs do not create human rights. But the Human Rights Commission is encouraging and inciting some sections of the community to demand rights without any regard for the philosophical and historical perspectives which should be paramount. It is also unconcerned about the notions of duty and responsibility. It selects or manufactures rights and exalts these "rights" over and above the important and basic rights of the liberal tradition which include freedom of property, freedom of expression, the right to a fair trial, due process and equality of opportunity. These basic rights, that have collectively been responsible for a great deal of development and progress, are being undermined by a series of new social engineering "rights" created out of the air, as it were, and contrary to evolutionary development and western philosophy. See further, LJM Cooray, Human Rights in Australia, Sydney (1985). Lenin, Stalin, Hitler and Pol Pot are the twentieth century examples which illustrate the difference between idealism and reality, the theory and the practice of coercive utopianism. The internal threat that faces the democratic capitalist tradition is not of a Hitler or a Lenin but of numerous little Lenins and Hitlers, not committing mass murder, but springing up all over the place, becoming increasingly influential and trampling on the rights of individuals, imposing their biases and limited ideas upon the mass of the population, with invariably counter productive effects. The real enemies of society today are not necessarily evil men not the murderers, not the rapists, not the unscrupulous businessmen and not the aggressive trade unionists. The most dangerous enemies of society are men and women with impractical ideals who have the arrogance to believe that they have the solution to complicated human problems and who wish to use the police power of the state to impose their ideas on the public. The reformists have been referred to above as idealists. This is somewhat misleading. Idealism is present to a lesser or greater extent but it is not all idealism. They occupy the moral high ground on public issues. However, there are other motivating factors which are glossed over and which are not adequately emphasised. A significant motivating factor, especially among the affluent reformists (many reformists tend to be affluent) and especially in politics, the bureaucracy, academia and the media, is what may be termed "false guilt". They feel guilty about the advantaged economic and social position which they enjoy and they take an easy way out. They retain their comfortable lifestyles. They support a cause or causes and ask the government to act to coerce other people to make the sacrifices. It is very easy for urban folk to be concerned about Aboriginal land rights whilst requiring the farmers or the mining companies to make the sacrifices. These sacrifices will in the long run affect everyone but they do not have the foresight to understand this dimension. It is easy to ask the farmers and mining companies to make the sacrifices. This easy concern is a twentieth century phenomenon. The reformists of earlier times made sacrifices of blood, tears, toil and sweat. But the so-called reformists of the twentieth century take the easy way out. They make no sacrifices. They retain comfortable lifestyles and ask the government to act. They are generous with other people's wealth. Perhaps when the government acts and the bureaucracy is set up they can obtain a position with a comfortable salary, a lucrative consultancy or a research grant. Perhaps the most powerful factor motivating some reformists is envy of wealth and achievement. Envy of those who are achieving and doing better. This envy operates even

with a person on a $100,000 a year income or even a $200,000 a year income. They are envious of the Murdochs, the Packers, the Bonds and the Holmes a'Courts. This is an important factor in the make up of many coercive utopians. The envy of wealth and achievement is a very important factor, though many of them will immediately deny it if confronted with the issue. They are very seldom confronted with the issue. The characteristic of the reformists is their unrealistic analysis of human problems. They ignore the experience of history and human nature. Academic analyses of human problems are becoming more and more abstract and divorced from the realities of history and human nature. The dimension which the coercive utopians miss is that a better world requires better human beings. It is not possible to make people better or law abiding or richer by laws and regulations. They focus on structures. Their emphasis on regulation is an emphasis always on changing the structures. Their belief is that if the structures and institutions are changed human beings will change. Capitalism and business are made the scapegoats for every problem. The fact, that in pre-capitalist and primitive societies human beings have not been much different, is ignored.

31. Counterproductive Reform


The values and institutions of the western democratic order contain internal mechanisms for renewal, reform and change. But the mechanisms are ignored by reformists who want to use the power of government and the bureaucracy to affect change. As a consequence of regulationist programs, the opportunity for genuine evolutionary change and reform has been lost. The proper bases for and context within which reform and change should be effected have been referred to above (see sections 5.4, 16, 18.5 and 26). There is another dimension on which the coercive utopians often focus. They argue that modern conditions demand change. Modernism requires changes and legislation is frequently necessary, but the changes desired by many (so called) reformists consist of social engineering. They consequently confuse modernisation with social engineering. Social engineering packages are passed off to the public as modernisation. The common law was developed in relation to the practical problems and experiences of human beings on a case by case situation in a pragmatic fashion. The law was developed in the context of real situations and problems. This is in direct contrast to the modern reform process. Reformists (divorced from real situations) operate in ivory towers, dreaming up solutions for human problems, without an understanding of human nature and human life. The reformists are much more divorced from the realities of life than the common law judges. The common law judges were compelled to deliver their judgements based on community standards in the light of real human situations and problems. Common law provided for the change which took place. See further section 18.2. The values and institutions of the western democratic order have provided for change. Again, it must be repeated that it is in the context of freedom that change takes place. The "reformist" bureaucracies are not generating change. They are causing stagnation and even regression. This is not to deny that there must be change and reform. Modernism brings its own problems. But the problems must be looked at in the light of the accumulated wisdom and foolishness of the ages. Frequent tampering with the rules by over-ambitious reformists endangers the whole development that began with the renaissance and received a new lease of life from the industrial revolution. The extent of government control of the economy has, in the last 30 years, increased from 28% to 44%. See section 26. Government regulations affect every aspect of life. Government regulations are drafted by human beings and human beings have their imperfections and fallibilities. The growth of bureaucratisation and government has put the whole system into reverse. This has been discernible from the 1960's. It has strangled the relative freedom that has been responsible for the growth of production and that fostered development. There is a correlation between the growth of government and the increase of poverty. This is illustrated by recent studies in America. There is a correlation between increasing government regulation and welfare on the one hand and the increase in the incidence of poverty on the other. There is a correlation between the growth of government and unemployment (one of the causes of unemployment being the regulation and taxation of business which big government imposes). There is a correlation between the decline of family and religion and the rise of problems relating to drugs and crime, particularly amongst young people. There is

a correlation between freedom and limited government and reduction of inequality and progress. Supporters of the values and institutions of the western democratic order can identify with some of the concerns for, and the analysis of, human problems and suffering on which reformists focus. The point of difference between the interventionist reformists and liberals lies on the grounds that 1. the former's policies often are based on unachievable standards and an absence of understanding of human interaction; and 2. their emphasis on the power of law to achieve those ends. The consequence is that the reformists' efforts invariably create more problems than they solve. The supporter of freedom may often agree with the sensible reformist in his analysis of problems but would argue that an attempt to use law made by imperfect humans and administered by imperfect bureaucrats and judges is often counter productive. Thus, for example, a supporter of freedom may be equally as concerned as a regulationist about discrimination against women but would see the need for education rather than regulation. He would doubt the wisdom of special legislation and suggest the better enforcement of the general law because legislation in such situations will lead to discrimination and create more problems than it solves. The reformists do focus on genuine problems, injustices and inequalities. They have made a contribution to the establishment of equality of opportunity, in the context of their concern for the underprivileged and the disabled. However, the problem today is that they exaggerate and distort such problems and they get away with these approaches because the challenge and counter arguments are very weak. Their solutions are not infrequently impractical, utopian and counter productive. It is the counter productive aspects of reforms which must be highlighted. By trying to achieve too much through over regulation and over taxation, they miss out on the practical and constructive reforms which can be effected. The words "counter productive" emphasise that, whilst the reforms may yield certain benefits, they are counterbalanced and over-balanced by the disadvantages which are not foreseen or, if foreseen, are brushed aside when the reforms are drafted. They become visible when the reforms are implemented but the counter productive aspects of reforms are seldom properly highlighted. An example would be the vast sums of money spent on Aboriginal welfare, a very small part of which actually reaches the intended beneficiaries. The major part of the money is being creamed off by bureaucrats, academics, researchers, social workers and by persons of mixed white and Aboriginal parentage who have few or limited contacts with the life and culture of Aborigines. The basic problems are compounded by a demanding populace and pressure groups who want just about everything. These groups are encouraged by activists and politicians. Individuals and groups (radical and conservative alike) make increasing demands on government and employers, without considering the overall implications From where will the government get the funds? What will be the effects of more taxation on individuals and

business? What will be the effects of higher wages on profitability of business enterprises and levels of employment? Australia's ills are attributed to changes abroad as well as to lack of will, failure of nerve, moral decay, selfishness and laziness, and the shattering of community feeling. One can find signs of all of these, but the key may be something else: the fact that the regulationists and welfarists are encouraging the people to ask for just about everything from the government without considering or fully understanding the costs. They want freedom as well as order, individual liberty as well as equality, safety as well as the benefits of risk taking, a wide-open society as well as less crime, material wealth as well as spiritual worth without stopping to think that each of these values takes something away from the other. To use an ungainly but accurate expression, they have forgotten the trade-offs. Equality of opportunity and provision for the genuinely underprivileged are within the rationale of the liberal system. The emphasis of the reformists is no longer on merely providing for the really poor and reducing inequality. The emphasis is no longer on extending avenues for equality of opportunity, but is directed towards equality as a goal towards providing equality of outcome. The movement is now for equality and for the elimination of economic and social privilege, disparity and exploitation, which has very fundamental implications for freedom and enterprise. This is accompanied by the resounding cliched phrases and arguments which go with the egalitarian message, and the envy and hatred of success, capitalism and wealth, even when privilege is based on effort and ability. A significant aspect of this movement is the increasing body of non-Marxists and antiMarxists within all the political parties who are striving towards unrealisable ideals. The contemporary challenge is posed by unrealistic aspirations towards equality, democracy, justice, accountability, peace, etc, unreasoned attacks on authority, law and order, hierarchical structures, family, free enterprise and the profit motive and the call for elimination of economic and social privilege, disparity and exploitation and so on, which all have as their necessary consequence the need for more government activity, more government funding and ever decreasing levels of freedom. A society that places equality above freedom, as history has shown, ends up losing both. The critical spirit has spawned analyses of human situations. From it has sprung the naive belief that where there is a problem there is a solution and the machinery for implementing the solution is government money plus bureaucratic regulation. A great deal is said about the supposed crisis of capitalism. But capitalism has, in the sense of free enterprise, died long ago in the over regulated economies of so-called capitalist countries. The real crisis is of the mixed economy, with too many government inputs, excessive welfarism, juvenile ideas of justice and equality and the weakening of free enterprise, which is slowly becoming incapable of supporting the expansion and development that it has engendered in the last one hundred years or so. The reformists argue that a contrary approach to theirs overlooks human need. The answer is that those who are advocating unrealistic levels of expenditure and regulation by government do not realise that, notwithstanding the apparent benefits of such activities and payments, in the long run the recipients and the public are likely to suffer as the productive sectors of the economy become less able to function effectively. The consequence is that the recipients, particularly the poor, end up worse off than they were before. The effects of many reform

movements are counter productive. This is not confined to the economic area. The peace movement, children's rights, affirmative action, the attempts to weaken discipline and authority, conservation, attacks against the family, educational reform and anti-hierarchy movements are all examples of critical perspectives which make some genuine points but which, when pushed beyond reason and commonsense, have counter productive effects and result in counter productive change. Milton Friedman said in the Preface to William E Simon,A Time for Truth, Sydney (1978) xii: The view that if there is a problem, if there is something wrong, the way to deal with it is to pass a law, set up a governmental agency (staffed, of course, by the intellectuals urging this solution), and use the police power of the State to correct it, is a superficially appealing view. It is simple, as well as simple-minded, and appeals to our natural impulse to take personal credit for the good things that happen and blame a "devil" for the bad things ... that freedom and competition are far more effective than the visible hand of the bureaucrat is a sophisticated, subtle view which is far harder to get across. It requires thought, not reason, to comprehend. It does not lend itself to ringing phrases, to high-flowered sentiment, to promises to particular people or particular groups. Moreover, the market has no press agents who will trumpet its successes and gloss over its failures; the bureaucracy does. A perceived market failure or injustice within capitalism is for some a reason for government activity. Such advocates do not realise that the choice is between the imperfect market (subject to investigative reporting, which is an important barrier upon actions) and imperfect legislators and imperfect bureaucratic activity. If a rational choice is made, bearing in mind the record of bureaucracies and government commercial enterprises, there will be a great deal less pressure for government activity and funding. Many academic, media and bureaucratic studies are published about the abuses which exist within the liberal democratic order. By comparison there are few studies of the abuses which exist within government bureaucracies and particularly within government commercial enterprises. A better sense of perspective will be obtained if there is a greater focus on such aspects. While conscious of acts of injustice which are perpetrated under private enterprise, the regulationists are unwilling to realise that the alternative to private enterprise is public enterprise, which is invariably worse in most respects. If the economic cake is to provide shares to the underprivileged it must grow in size. The enemies of the free society distrust wealth. But that wealth must be created and it is created by entrepreneurs. The coercive utopians are talkers and planners but not creators and doers. Their policies of excessive government regulation and over-taxation have, in the latter half of this century, had the consequence of preventing the size of the economic cake from expanding, even of making it smaller. They seem blind to the reality that their policies based on hatred of capitalism, lead to a smaller economic cake and that the smaller economic cake is not even more fairly divided. A great deal of money is creamed off by the bureaucracy and special interest groups and does not reach the poor and underprivileged sections of the community. It is necessary to understand western history and tradition, its achievements and its failures before any type of reform is likely to be successful. Reform movements have proceeded essentially by focusing on existing problems without consideration of the existing advantages. This has been the route to a great deal of counter productive reform. Productive reform must be based on:

i. an understanding of and a pride in the achievements of the order and its dynamics ii. a realistic and common sense awareness of the weaknesses iii. the wisdom to realise the weaknesses that can be reformed by law and those which cannot iv. a recognition of the role of education as distinct from regulation

32. The Coercive Utopian And The Liberal Utopian


There is a significant difference between the coercive utopian and the freedom oriented utopian. Freedom oriented utopians are committed to change through education and the market place of actions and ideas. They are willing to have their ideas tested in the arena of public debate, though those who control the media and lay down the agenda are not very favourably disposed to giving them the opportunity to join in public debate. There is an important distinction between the regulationist coercive utopian and the freedomoriented utopian. The coercive utopian wishes to impose his views and philosophies on others, using the police power of the state. The freedom-oriented utopian is asking government to stand back and let the free actions of individuals and institutions interact in the context of public debate. He does not wish to use the police power of the state except to maintain law and order based on standards. The coercive utopians emphasise the importance of institutions. It is not proposed to enter into the individuals versus institutions debate. But human beings at the very least are as important as institutions. Institutions are important. The human spirit cannot survive and develop in an atmosphere of repression and tyranny. Democratic institutions are among man's greatest inventions. In the western democratic order, progress must be based primarily on individual effort and improvement with minimal guidance from government. The coercive utopian and the liberal utopian both rely on ideology. Yet only the freedom oriented liberal is frequently accused by the media of being ideological. The same epithets are not used in describing socialists, progressivists, reformists or even Marxists. There is a difference. The liberal is articulating an ideology of non-action. The socialist is advocating an ideology which includes using the police power of the state to effect change.

33. A Better Future For Mankind


The reformist, if words are the only guide, is more concerned about a better future for mankind than the liberal. Are liberals unconcerned about human problems? They do not often give the impression that they are. Liberals are probably as concerned, though they do not waffle or talk about it in the same way as socialists. The paradox is that freedom related values have a better record of providing for human needs and reducing poverty than socialist and Marxist regulationism. If people are concerned about peace, poverty, inequality and human problems, where should their priorities lie? They should start with themselves. This is the very reverse of the approach of the reformists. They are motivated to change other people and are often unconcerned about their own standards. They often fail to realise the hypocrisy in the difference between their affluent lifestyles and their concern for human poverty and suffering. The late Justice Murphy, in a judgement, said that property rights belong to a bygone era. If he had lived, he would have retired with a large sum of money drawn from judicial and parliamentary superannuation funds and converted these into property. A better world requires better human beings. A better world needs more of the practice of sincere religion (any religion) or genuine humanism. The emphasis is on sincere religion because of the corrupting effect institutional structures have had on religion. It is not suggested that the institutionalised church should come back into politics or that the church should lay down political guidelines for the faithful. Unfortunately, the battle to reduce the power of the institutionalised church in politics has also had the effect that moral values have been taken out of politics. Moral values and standards of conduct must be brought back into public life. A better future for mankind requires individuals to change. In the recent period of rampant educational, technological and material development it is debatable whether man's capacity to get on with his fellow human beings has been in any degree increased. Has it in any way increased in the wake of the developments of the last one hundred years or more? If the wars, the localised wars and the many examples of man's inhumanity to man which are prevalent in the world today are analysed, it cannot be said that in terms of toleration mankind has in any meaningful sense moved forward.

34. Conclusions
Honig has this to say about America and it is equally true of Australia: The jury is still out on whether you can take a huge country, keep it pluralistic, enshrine liberty and individual development and not have it fly apart. That has always been the tension in this society. Can you combine individual push with common social purpose? Well, that should be our task, to make sure that it does survive - because we are still a beacon for the rest of the world. I truly believe that we have something remarkable to say about how you form a society and how you live a life. The main problems which face western society today are: the growing incapacity of the political system, the family, education processes and society to produce sufficient responsible citizens with a sense of public duty and the drift towards careless individualism, discontented egoism, nihilism, destructive values and mindless idealism. There is no threat of a violent revolution to overthrow the system and establish a Marxist state. The danger that exists is twofold. First there is the gradual destruction of much that is worth preserving, with little that is constructive being put in its place, because of unfair criticism of what "is" and "mindless idealism" in relation to what ought to be. Second, the growth of government leads to control of individuals and institutions as well as drying up the springs of initiative, innovation, enterprise and individual responsibility, creating dependency and, most importantly, giving rise to groups which obtain a disproportionate part of the resources of the country, exploiting the majority. The values and institutions of the western democratic order are far from perfect. Perfection or anything near perfection is an unobtainable ideal. Reform must proceed in this context. The wrong ideas and turnings in the reform process have been analysed above: ideologically based reform which rejects community values, the liberal tradition and the evolved solution; the practice of avoiding evaluation by focusing on the weakness of the system and ignoring its strengths; and the identification of modernisation with social engineering. The main problem of the future is of the critical spirit, which has made a tremendous contribution to western civilisation, running riot in a narrow, counter productive manner, destroying what exists without practical and viable alternatives. Communism consumed the Soviet Union, China, Cuba, parts of Eastern Europe, and other countries through the forcible destruction of one system and the establishment of another. There are both positive and destructive aspects of communist states, with the destructive aspects definitely in the ascendancy. However, the problems that face well-established representative democracies with strong private enterprise infrastructures, are big government, the control of the many by a few and a gradual undermining and destruction of the system without constructive alternatives. There is no danger of a Soviet type or any other communist type state being established in Australia or the western democracies. The long term future, if the present trends continue, will be characterised by the following developments. Increasing economic problems and growing unemployment. A gradual undermining, without viable alternatives, of the values and institutions which have contributed to the rise and prosperity of western civilisation. Increasing government regulation and bureaucratisation (which limit individual freedom and the scope for effort, motivation and achievement). A growing demand for government activity and welfarism. Inability of governments to cater to such demands. The use of civil

disobedience, violent dissent and terrorism by dissatisfied groups, causing inconvenience and disruption and the inevitable counter reaction of governments (whether socialist or of any other complexion) involving restrictions on civil liberties. The placing of restrictions on trade union and industrial activity. A state which maintains the institutions and trappings of liberal democracy but has accumulated reservoirs of bureaucratic power, limiting civil liberties and using escalating emergency powers to stifle dissent and control violent groups. A central government which cannot exercise adequate control over its bureaucracies, and favoured private organisations. In this respect there would be a fundamental difference from a communist state. Nor will the internal security forces be as efficient and ruthless as those of the communist state. There could be a partial withering away of the state - a bureaucratic giant monster in which few things work as intended (but not a withering away of the State as in Marxist theory nor the rise of a brutal repressive and oppressive state as in Marxist practice) This is the future prospect, unless the force of ideas and common sense can cause a change in direction. The attack on the values and institutions of the western democratic order has been highlighted. I have not painted a rosy picture. I do not want to end on a note of pessimism. What of the future? There are reasons for pessimism and for optimism. A great deal depends on how supporters of liberal values respond to the challenges of our times. The analogy has been drawn between Rome and western civilisation. The fall of Rome was preceded by permissiveness and growth of bureaucracy and welfarism but there ends the analogy. Rome did not have the benefit of scientific and technological development. Roman civilisation in its creative periods did not have the civilising influence of Christianity and Christian based morality which, despite the faults and failures of the Church and individual Christians, has been the driving force in the liberal tradition. I leave you with Macauley's words, "It's a great time to be alive." It is a great time to be alive and a great place in which to be alive. Would you rather be alive now or in 1850 or 1750 or 1550 or in medieval times? Would you rather be in Australia or in Russia or in Chile or in Libya or in South Africa? There is hope for the future if concerned liberals can rise up and face the problems and challenges of our times. The future depends on individuals rising up to challenge the coercive utopians and the proponents of permissive nihilism. George Orwell puts into the mouth of Winston Smith, the tragic hero in Nineteen Eighty Four, the oft repeated thought that if there was to be a hope for the future it was in the proles (the masses outside the governing bureaucracy and the party). In the real world of 1984 and beyond, in the education system, the public affairs media, the bureaucracy and the political system, anti-liberal ideas are vocally and influentially dominant and growing in influence. Many (but not all) who hold contrary ideas are intimidated into varying degrees of timid silence or qualified and halting comment. The hope for the future must lie in the common sense of ordinary people and the innate yearning for freedom and life which has been constant throughout human history. The common sense of people must be tapped before it is obliterated. An epitaph for western civilisation? From bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance;

from abundance to selfishness; from selfishness to apathy; from apathy to dependence; and from dependence back again into bondage.

Australian Values Study (1983) Appendix


The Australian Values Study, a very wide ranging survey conducted by the Roy Morgan Research Centre, Sydney, Melbourne, (August, 1983) provides some interesting perspectives on the values of the Australian people. The percentage claiming confidence in Australian institutions are as follows: Institution % Public Confidence The police 81 Australian companies 78 Small business 73 The armed forces 67 The legal system 62 Parliament and government 56 The press 28 Labour unions 25 Taking all things together 95% of Australians are happy (very happy (34%) and quite happy (61%)) 4% not very happy, 0% not at all happy and 1% don't know. 79% believe in God, 14% do not and 7% are not sure. 90% are proud (very proud 64% and quite proud 26%) of Australia, 1% are not very proud, 1% are not at all proud and 8% don't know or are not a national. Australians on all sides of politics have a clear preference for freedom over equality. Only 4% support more government interference in the lives of individuals. The vast majority of the Australian people believe in moderation and are against extremism. (Note: What constitutes moderation and extremism is of course a matter of opinion.) When asked the question whether marriage is an outdated institution: 84% disagreed, 13% agreed and 3% did not know. 98% of Australians placed "a happy family life" in the first three of their choices of the most important things in their lives. More than agreed that marriage is for life.

More than 90% of all young people aged between 18 and 34 years of age want to marry. Young people in that gap were asked if they intended to have children and more than 96% of them said that they wanted to have children. 75% believe that a child needs two parents. In families where there are two parents involved, more than 90% of families do not have areas of conflict in the family. 80% of Australians interviewed said they believed that the family was the most important institution within the Australian community. 96% of Australians said they believed a religious faith was a positive factor in family life. 3 out of every 4 Australians believe that Australia needs to give more encouragement to entrepreneurs and investors, and more people see the visionary as more likely to contribute to solving social questions than parliament, the courts, the public service or the Labor Party. 83% of Australians take a great deal of pride in their work. The significance of these views must be seen in the context of the denigration of many of the values that people believe in by their education and media systems, and the failure of the conservative parties to effectively stand up for these values and institutions. The left, with the connivance of the media, have been allowed to set the agenda of public debate. Thus, sensible and well-reasoned right wing perspectives are labelled as extremist, reactionary, etc. On the other hand, social engineering schemes and even extreme policy decisions are presented in the guise of moderation. The reason is that the right (including the Liberal/Country Parties), with a few exceptions, have not stood up for values which are likely to gain widespread community support and which are in tune with liberal principles. They have also not been willing to attack social engineering schemes and demonstrate their true radical, counterproductive nature. If such an onslaught were launched, ridicule could be expected from sections of academia and the media. However, the public would be very receptive. The political opposition must lead such an onslaught but it does not have the guts to do so. It does not (a few exceptions apart) challenge the agenda of public debate laid down by the left and the media. The Opposition do not realise that there are many issues which will help them win an election. If they fashion politics based on community values and stand up for them they will be characterised by the government and the media as reactionary, extremist, conservative etc. Other slogans and epithets will be used to denounce such policies. However, a very responsive chord with the electorate will be struck. Inherent in this process is an ability to endure and challenge media and ALP ridicule, provide convincing counter arguments and win the debate with the public.

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