FIRST to Andrew Forrest’s $65 million gift to the University of Western Australia, then to Queensland’s bikies law. Forrest has said that he and his family had agreed that they had more than enough to live on in whatever style they wanted, so they should give the surplus to good causes. It means he is sacrificing exactly nothing with this gift. It is easier than giving away unwanted second-hand clothes for him. He does not even have to drive to the Salvos bin.
In any event, the gift will be tax deductible, so the taxpayer will be providing 46.5% of it.
And then, none of his listed companies have ever paid any tax, according to the Australian Financial Review in 2011. Further, BRW has his net wealth at $3.6 billion.
Compared to his $65 million, Labor has had to cut $3.8 billion from universities because the Federal Government cannot get its tax regime in order.
One might conclude that Forrest’s call for other very wealthy people to make “philanthropic” gifts is a political statement. He wants Australia to be more like the US, where lightly taxed mega-rich cigar-smoking magnates in fur-collar coats and top hats graciously bestow their excess to whomever they decide, smugly picking up the plaudits from the grateful multitude.
If we had a decent tax regime and proper funding, universities would not have to go through the sycophancy of this week’s gala thank-you dinner at the university attended by the groveling high and mighty to give homage to the richly undeserving.
DOT DOT DOT
What about this for a proposition for Queensland Premier Campbell Newman — given the large number of Catholic priests convicted or suspected of child sexual abuse, any time a Catholic priest is convicted of child abuse, a mandatory 10-year term be added to his sentence?
After all, the priest would have been a member of an organisation or gang with systemic criminal tendencies to cover up crime. Further, the members of the gang have distinctive costumes and wear insignia.
In Newman’s words, you have to send out the message: join a suspect organisation and you get extra punishment.
See the difficulty?
This is why Newman has succeeded in getting so many lawyers, academics, writers and society leaders on the side of the bikies. It is a singular achievement.
It would be nice to think that he might also get people thinking about the importance of the rule of law, the separation of powers and human rights.
The fundamental problem with Newman’s anti-bikie law is that it sits well with the same malevolent jurisprudence that drove laws in apartheid South Africa and Nazi Germany, though of course to a much lesser degree – but only in degree, not in character.
One of the great achievements of the 18th century Enlightenment was the development of principles of the rule of law that have underpinned our liberty and freedom. There are four major and related principles: accessibility, universality, equality, and the separation of powers.
The law must be accessible to all. People should be able to find out what the law is. Those in power must not be allowed to make it up as they go along to suit their own ends.
The law must apply to all. Judges, Cabinet Ministers, Archbishops and heads of government departments must obey the law, even down to paying their parking fines.
People must be equal before the law. It means that the law, and those who administer it, must judge people’s conduct – what they do – and not their personal attributes — who they are. So people before the law must be treated equally, whatever the colour of their skin, their membership of religious, political or social organisations, their occupation, or other personal attributes.
Apartheid South Africa applied the law differently to blacks and coloureds than whites. Nazi Germany applied the law to Jews, homosexuals and members of the Communist Party differently to the way it was applied to apolitical, heterosexual Aryans.
And now Queensland will treat members of bikie gangs differently from everyone else. They will get an extra 10 years purely because of their membership of an association.
I’m not saying Newman is a racist or a Nazi or that his anti-bikie laws are anywhere near as draconian as similar laws in South Africa or Nazi Germany, but the laws have the same repugnant character: more severe punishment for exactly the same crime because of personal attribute, in this case membership of an association.
The bikie laws exemplify a long-running debate in jurisprudence – between legal positivism, on one hand, and natural law, on the other.
Legal positivists say the law is that which is enforced – what is on the statute books and in the cases — and that is the limit of it. Natural lawyers, on the other hand, say that there are fundamental principles that arise from our human nature.
The difficulty for the natural lawyers is that they need some positive law to enforce those principles. For example, a declaration of independence saying that man is born equal is useless without a Constitution, government, courts and police to put the principle into effect.
This is why so many people inclined to natural law support Bills of Rights in Constitutions. They recognise that sometimes Parliaments, Executive Governments, bureaucrats, and even courts, offend the principles of the rule of law and there must be an appeal to the highest court to ensure rights are not consequently trampled upon.
This is where the fourth principle comes in: the separation of powers. Under the separation of powers the legislature legislates by enacting law that applies to all; the executive administers that law; and the judiciary resolves disputes or deals with matters arising from it.
So, for example, the legislature can ban all driving of motor vehicles in public unless you have a licence, and to get a licence you must prove you are competent. The executive sets up a system of testing. And the courts would hear a case where an applicant was denied a licence simply because the Minister for Transport woke up one morning and said there are too many cars on the road so stop issuing drivers’ licences.
In some places, like Britain, Parliament is sovereign. The Parliament can legislate for whatever it wants. For example, that Bill Smith will be held in jail for 10 years, even if Smith has done no crime.
In other places, like the US, Australia and Canada, legislatures are created by Constitutions, and their power is limited. Our High Court has held that state parliaments cannot pass a Bill Smith Act.
The High Court has also held that the legislatures cannot totally usurp the judicial power by demanding mandatory sentences.
You can see how the principle of the separation of powers protects individual citizens from capricious legislatures and power-hungry executives.
It is precisely at the time when the unpopular, the down-trodden, the ugly, the offensive and the excluded – rather than the respectable members of the majority — face unequal treatment before the law that right-thinking people must protest.
Campbell Newman’s anti-bikie law is offensive to principles of the rule of law and justice. Bikies who commit crimes should be treated in exactly the same way as anyone else and the existing criminal law should be used for the task. Murder, assault and speeding are murder, assault and speeding whether committed by a member of a motor-cycle association or anyone else and deserve equal punishment according to circumstances, not according to personal attribute.
The answer lies in better policing not in scare-mongering and grand-standing.
I hope the High Court strikes down the law and people see it dangers.
for the dangerous instrument that it is.
Who knows when your son or daughter might in a moment of folly join a bikie gang.
CRISPIN HULL
This article first appeared in The Canberra Times on 19 October 2013.