Terror and the Tyranny of the Majority (Week 9)
'In politics, what begins in fear usually ends in folly.' - Samuel Taylor Coleridge
Several of the tools described thus far contemplate the complex political task of winning support from the majority of voters. The study of inequality is an important reminder to politicians that they do not govern solely for the benefit of the majority. Wayne Morgan made the point that democracy means more than the tallying of votes every three years. It also entails a system of checks and balances towards such ends as the protection of the minority against the tyranny of the majority.
The judicial branch has an important counter-majoritarian function. Sandra Fredman has described how courts seek to balance the letter of Parliament’s laws with the spirit of minority rights.* It would be wrong to imply that politicians ignore their responsibilities for social welfare. However, because our judges are unelected, they are free to focus on individual fairness above the whims and misperceptions of the voting majority. Such freedom is important when courts help to enforce measures which address inequality but can appear to afford unfair privilege. Unfortunately I missed our tutorial, but in my ticket I wrote about the importance of selective discrimination in hiring practices for sensitive positions. This discrimination extends to such situations as having female counsellors in women’s refuges.
The criminal law is another field where judges and politicians alike must reconcile individual rights with social demands. Politicians can reap significant capital among the majority of voters by taking tough stances on law and order. Since 9/11 there has been a particular social impetus towards strengthening national security. However, legislation directed to our collective security can often impinge upon individual liberties. There have been a number of valid prosecutions under Australia’s anti-terrorism laws but notoriety has attached to several cases of unjust and overzealous treatment of individuals such Jack Thomas and Mohamed Haneef.
The judicial branch has an important counter-majoritarian function. Sandra Fredman has described how courts seek to balance the letter of Parliament’s laws with the spirit of minority rights.* It would be wrong to imply that politicians ignore their responsibilities for social welfare. However, because our judges are unelected, they are free to focus on individual fairness above the whims and misperceptions of the voting majority. Such freedom is important when courts help to enforce measures which address inequality but can appear to afford unfair privilege. Unfortunately I missed our tutorial, but in my ticket I wrote about the importance of selective discrimination in hiring practices for sensitive positions. This discrimination extends to such situations as having female counsellors in women’s refuges.
The criminal law is another field where judges and politicians alike must reconcile individual rights with social demands. Politicians can reap significant capital among the majority of voters by taking tough stances on law and order. Since 9/11 there has been a particular social impetus towards strengthening national security. However, legislation directed to our collective security can often impinge upon individual liberties. There have been a number of valid prosecutions under Australia’s anti-terrorism laws but notoriety has attached to several cases of unjust and overzealous treatment of individuals such Jack Thomas and Mohamed Haneef.
In addition, the drafting of our federal anti-terrorism offences has been subject to great academic criticism. Our terror offences are sui generis among Australian crimes in their departure from the usual principles of establishing criminal guilt. Most notably, several offences operate under the precautionary principle derived from sustainability thinking. This principle holds that if a risk is known but uncertain, it is better to pre-empt it than to respond once the consequences become clear. There is some logic in a precautionary attitude to terrorism because the human and social costs of terrorist acts are vast and irreversible. However, the precautionary principle has led to the criminalisation of behaviour at such an abstract and preparatory level that it would not be acceptable within the bounds of normal criminal jurisprudence.
Finally, I would have liked to ask Morgan about the repercussions of traditional approaches to identity in the criminal law. There are obvious political issues around the sensational popular perception of the culpability and identity of potential terrorists. Legally, identity is relevant to the criminalisation of conduct in support of or in association with terrorist entities. For individuals, peripheral involvement can be punished in a way that it could not with regard to drug or other organised crime syndicates. For law enforcement agencies, the nebulous identity of terrorist entities must be nailed down according to the rules of evidence. Al Qa’ida is a proscribed terrorist organisation in Australia but many commentators, including Scott Stephens and the ANU Law School's Miriam Gani, believe it to be more a philosophy than a rigid association of people.
* Sandra Fredman, 'Providing Equality: substantive equality and the positive duty to provide' (2005) 21 South African Journal on Human Rights 163.