: Shrinking democracy with law

Shrinking democracy with law

David Ritter and Jessica Panegyres

The Australian federal government — and several state governments — are currently seeking to use law to reduce the democratic space available to Australian citizens and even future governments. Legal realist theory tells us that law follows power, in contrast to the legal positivist view that law’s development follows its own internal rules of logic.

In Australia today, the realist thesis is evidenced by several laws currently being pursued or considered by the Australian government, acting under the influence of corporate pressure. Four particularly striking examples illustrate this illiberal and alarming trend.

The first is proposed changes to so-called ‘secondary boycott laws’. Secondary boycotts are prohibited under the Competition and Consumer Act 2010 (‘CCA’) — with an exception for conduct related to ‘environmental protection or consumer protection’. Some federal MPs have, however, publicly vowed to make market-based campaigns by consumer and environment groups illegal, through changes to the CCA being considered by the Australian Government Competition Policy Review. Market-based campaigns — that is, campaigns that highlight harmful business practices by companies in order to change those practices — are an effective form of advocacy and an important contribution to democratic debate. While the Review’s September Draft Report re-affirmed that free speech should not be threatened by CCA changes, it also warned that:

where an environmental or consumer group takes action that directly impedes the lawful commercial activity of others (as distinct from merely exercising free speech), a question arises whether that activity should be encompassed by the secondary boycott prohibition.

The possibility remains that the government will use CCA provisions to outlaw peaceful protest by citizens directed towards changing harmful business practice.

The second is another means of chilling dissent: the anti-protest laws passed recently by Tasmania’s parliament. Aimed primarily at forest protesters, the laws initially included mandatory imprisonment for repeat convictions. While those provisions failed to pass the Upper House, the new version of the Workplaces (Protection from Protesters) Act 2014 still includes mandatory sentencing (penalties for indictable offences), and awards new powers to police and the DPP to stop protest, broadly defined. The law’s wide-ranging scope provoked Australian Lawyers for Human Rights to urge Tasmanian MLCs to reject the amended Bill as ‘clearly inconsistent with International Human Rights law.’

The third is moves being made to overturn the charitable status of some well-established Australian charities. Already, the Liberal Party’s Federal Council has unanimously passed a motion that eco-charities, ‘should not be eligible for deductible gift recipient status when advocating political issues.’ This follows the government’s move to abolish the independent Charities Commission, a statutory body with authority to determine which organisations should have charitable status, and its decision to remove any government funding for organizations which engage in ‘advocacy’.

The fourth is the Trans-Pacific Partnership (‘TPP’), a trade agreement currently under negotiation — in secret — by twelve governments including Australia and the United States. Highly controversially, the TPP may include Investor-State Dispute Settlement (‘ISDS’) clauses, which enable corporations to sue governments that regulate in a way that affects their business’ profits. Currently, the tobacco company Philip Morris is suing the Australian government for its plain tobacco packaging laws using an ISDS clause in an existing trade agreement. A broad range of civil society groups are calling for the government to reject ISDS clauses outright, including health workers concerned the TPP may affect the Pharmaceutical Benefits Scheme, and environmentalists worried the government will become unable to enact environmental laws. Beyond any single issue, ISDS clauses raise the perennial democratic issue of the degree to which one parliament should be able to bind future parliaments: a topic it is impossible to discuss openly due to the closed nature of TPP talks.

What unites these four proposed legal changes is whose interests they serve. The reforms operate to benefit business corporations in four ways: by making it illegal for citizens to protest against them; by prohibiting organisations to run market-based campaigns against them; by harming advocacy charities that oppose them; and by constraining governments to make laws that affect business profitability. The legal realist proposition that law follows power is rendered all too evident with these developments, reflecting the breathtaking power that Big Business commands over current governments in Australia. These measures damage the fabric of our society and political community. The democratic space in Australia is under attack; it is incumbent upon us all to decide where we stand on these matters and to act in accordance with conscience.

DAVID RITTER is CEO, and JESSICA PANEGYRES policy adviser with Greenpeace Australia Pacific.

(2014) 39(4) AltLJ 212
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