Freckelton, Ian --- "Civil libertarianism: challenges and opportunities" [1999] AltLawJl 23; (1999) 24(3) Alternative Law Journal 132

This conduct consists, first, in not injuring the interests of one another; or rather certain interests, which, either by express legal provision or tacit understanding, ought to be considered as rights; and secondly, in each person’s bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society of its members from injury and molestation.[5]

He maintained that as soon as any part of a person’s conduct prejudicially affects the interests of others, society has jurisdiction over it. He asserted that the question of whether the general welfare will or will not be promoted by interfering with it thereby becomes worthy of utilitarian analysis.

Integral to Mill’s approach to civil liberties was the recognition of the existence of difficult conflicts amongst rights and the need for balancing individuals’ rights and obligations against the needs of society generally. It was a discourse that he sought to establish and a pragmatic balancing that he wished to orchestrate. He maintained that interference with individual rights was justified but only to the extent made necessary by the impact effected by upholding certain rights on the rights of others or on the ‘general welfare’ of the broader community. He argued vehemently against the overweening exercise of power by government, insisting that individuals are superior decision makers to government, that the exercise of power by individuals promotes ‘mental education’ and that government power is dangerously prone to be abused:

Every function superadded to those already exercised by the government causes its influence over hopes and fears to be more widely diffused, and converts, more and more, the active and ambitious part of the public into hangers-on of the government, or of some party which aims at becoming the government.[6]

Notions of what constitute civil liberties are largely a product of cultural and environmental context. Mill pointed out that they are framed by the form of government that exists at any particular juncture. Today we would generally acknowledge that rights and responsibilities are differently identified and interpreted at different times. The era that generated the establishment of the American Civil Liberties Union (the ACLU) in 1918, the English National Council for Civil Liberties (the NCCL) in 1934 and the Australian Council for Civil Liberties (the ACCL) in 1935, and a series of affiliated State and Territory Councils for Civil Liberties around Australia, was considerably different from our own. However, many similarities and resonances can be found at the close of the millennium with the post-Depression years that spawned organised civil libertarianism in Australia and England, and even with the post-Great War years that gave birth to organised civil libertarianism in the United States. A surprising number of the issues that preoccupy civil libertarians today are the same, or substantially similar, to those that generated concern in the 1930s. In such comparabilities a way to the future for civil libertarianism and a continuing identity may be able to be pinpointed.

The first ACCL publication in 1935 proclaimed that the Council offered ‘a means of expression to those people in all parties who believe that social progress may be achieved only in an atmosphere of liberty’.[7] From the start, the stance of the Council was non-party political, and socially progressive, not surprisingly emphasising the importance of rights and liberties, especially those of ‘underdogs’, people unlikely to be able to assert their entitlements because of factors such as socio-economic disempowerment or unpopularity. The Organising Committee listed a fascinating litany of grievances that it said were deserving of civil libertarians’ attention. They included the abuse of municipal by-laws in curtailing freedom of speech and assembly, the abuse of immigration and deportation laws, book censorship and repressive amendments to criminal law. In an era before the existence of legal aid, the Council campaigned in favour of people being provided with a financial means of enforcing their rights; it sent observers to demonstrations, especially when they included the Communist Party; it argued against the application of the ‘dictation test’ to exclude the immigration of people suspected of being subversive; it lobbied against criminal law provisions that allowed the prosecution of members of the Communist Party and Friends of the Soviet Union; it opposed steps taken by government to stop the visit to Australia of a Nazi apologist in 1938; and shortly before the outbreak of war in Europe it lambasted requirements for wharf labourers to be licensed or face a 12-month cancellation of their right to work. The echoes with our own time are remarkable. They highlight the extent to which issues concerning rights and liberties of minority and socially disdained groups recur in common ways.

The pattern of the Council was set from its early days: it was a thorn in the side of government, not so much by dint of its integrated and fully fledged alternative policies, or its involvement as an intervener in litigation, but on an ad hoc basis as a critic, nuisance and conscience. Its stances were not always popular, particularly in the strident nationalism of the lead-up to the Second World War or during the Cold War, but it spoke consistently and stridently in favour of people who were disadvantaged by the popular politics of the day. In his biography of the ACCL’s long-running secretary, Brian Fitzpatrick, Don Watson comments:

From the beginning the Council was to be an instrument of resistance guided by circumstance more than ideology. The social theories of its various supporters, which ranged from the liberal left to the radical right, and sometimes the eccentric, were subjugated by consensus on immediate imperatives.[8]

In the 1930s it was a mutual attitude of resistance to the forces of reaction, nationalism and parochialism that bound together members of the ACCL. The Council provided a forum for a range of people disaffected by the actions of government, with members of a social credit movement opposed to armaments, as well as dissident women’s groups giving it early support. It sought a broad base of interest, its members addressing groups as diverse as the Young Nationalists, the YMCA, the Students Christian Movement and the Business and Professional Women’s Club.

The eastern suburbs respectability of many of the ACCL’s Melbourne committee members and its mainstream focus soon attracted critical attention from more radical groups such as the Trotskyists and left wing branches of the Australian Labor Party. It took some years until the initial mistrust of the ACTU was assuaged by the personal lobbying of influential members of the ACCL, such as Brian Fitzpatrick. The attack on civil libertarians on the basis of their lack of ground-roots involvement in the union movement and other such institutions has emerged again in latter days in the era of well-heeled lawyers providing the main public face of civil libertarianism. There has been occasional co-operation between Councils and the ACTU but there has not been a close working relationship. In this though, Australian civil libertarians are not alone. The same tensions have characterised the ACLU in the United States. Its prime mover in early days, Roger Baldwin, was a scion of an entrenched Massachusetts family that traced its ancestors back to The Mayflower.[9] He was a social eccentric who cut his civil libertarian teeth on opposition to conscription during the involvement of the United States in the First World War. While many of the ACLU’s early members were former or continuing anarchists and pacifists, a key component of the ACLU core came from the upper middle classes. In more latter times, support for the ACLU has been broad-based, stimulated by the respect of Americans for the amendments within their Constitution that articulate and protect the rights of citizens. However, the involvement of lawyers remains disproportionate to that of other parts of the community.

Civil libertarians

Councils for Civil Liberties around Australia have enjoyed varying levels of interest and support. The core of civil libertarianism in the early years was in Melbourne and has remained in that city, in Sydney and in Brisbane with periods of activism from branches in other jurisdictions. Similarly, the profile of leading members has fluctuated at different times.

While there have been phases during which academics, historians and philosophers principally, have been to the fore, the past 20 years have seen the sustained involvement of lawyers, many of them with a high profile and a series of them Queen’s Counsel, later to become members of the judiciary. As indicated previously, the role of lawyers in the ACLU in the United States has also been prominent, fanned especially by the activist role of the Union as an intervener in the courts, not subject to cost penalties as are more likely to be imposed in Australian courts against interveners which prolong the duration of proceedings.

The last two decades have also seen the evolution of Australian Councils identified by many as very much part of the establishment, an irritant for government to be sure, but hardly bodies likely to launch a fundamental critique of the state or the powerful forces within it. As noted above, though, this is not a significant break from the past. In Victoria the Council even received legislative recognition, being permitted under the Mental Health Act 1986 (Vic) to nominate representatives for the Psychosurgery Review Board, the practice of lobotomies and leucotomies having particularly aroused the concern of the Council and the general community during the 1970s and 1980s.

In general, Councils for Civil Liberties in Australia have aggressively proclaimed themselves to be non-party political, although they are generally regarded as part of the ‘progressive’ side of politics. Some of their members have gone on to successful and not so successful political careers. Councils have provided a welcome source of critique for opposition parties, and an unwelcome source of independent assessment of respect for liberties on the part of incumbent governments. Such a non-aligned stance has generally been regarded by Councils as important to their long-term survival and has been jealously guarded. Any consistent alignment between civil libertarians and a political party, other than on particular issues or genres of issues, would erode one of the greatest assets of Councils, their independence, and reduce them to bit players in the party political system.

From their earliest days, civil liberties organisations this century have attracted curious bedfellows and unusual colleagues in adversity. Partly, this results from civil libertarians’ recognition of the importance of the rights of the individual and their mistrust of centralised, inadequately accountable institutions of government. The ACLU defended the rights of Nazi organizers attempting to march in the Jewish suburb of Skokie, Illinois, and supported Colonel Oliver North in appealing from his conviction on perjury charges stemming from the Iran-Contra hearings. In Australia, similar support was given in early years to the right of members of the Communist Party of Australia and of the Nazi Party to espouse their views publicly. Civil libertarian views continue to find supporters on the conservative side of politics, Liberal and National Party members frequently calling for government to reduce its level of intrusion into the affairs of members of the community and to become smaller and less able to violate individual rights. This is in fact a key part of small ‘l’ liberals’ contemporary philosophy.

The essence of civil libertarianism

What then constitutes, or is at the core of, modern civil libertarianism? Boaz has usefully captured the essence of latter-day ‘libertarianism’ as residing in the belief that each person has the right to live their life as they choose so long as they do not unacceptably interfere with the equal rights of others:

In the libertarian view, all human relationships should be voluntary; the only actions that should be forbidden by law are those that involve the initiation of force against those who have not themselves used force.[10]

John Stuart Mill’s philosophy remains the touchstone for civil libertarian analysis.

By their campaigns and public statements the Australian Councils for Civil Liberties have achieved a high public profile. Through what they have said and done, they have defined a public perception of contemporary libertarianism. By and large the positions of civil liberties bodies have been taken on an ad hoc basis as issues arise which have civil liberties ramifications. Councils have formulated little by way of manifestos, even in respect of notorious issues, relying instead on the application of Mill’s critique to emerging factual situations. On occasions, though, they have made data available on the basis of which members of the community could gauge governments’ performance in relation to matters involving rights and liberties. For instance, in the 1995 Victorian State election, the Victorian Council became actively involved in the electoral campaign, airing its concerns about the conservative government’s reduction in the integrity of the Victorian Constitution and providing a score-card in relation to parliamentarians’ respect for rights and liberties.

An organisation can be defined too by what it does not say and those issues on which it does not adopt stances. With the diminishing role of the ACCL, the national civil libertarian body, and the more pronounced role of its State affiliates Australian civil liberties organisations have latterly been relatively rarely heard in relation to federal issues. A notable example is immigration issues, by contrast with the early preoccupation of Fitzpatrick with the welfare of refugees and his determination to oppose through the ACCL anti-semitism, provincialism and xenophobia. In addition, civil liberties bodies have mounted disappointingly few campaigns in relation to industrial issues, although a range of legislative and other measures have eroded the union base, union powers and the right to withdraw labour.[11] This contrasts with the early activities of the ACLU in the United States.

Similarly, Australian Councils have been largely silent on health issues, other than those involving psychiatric disabilities, even though changes to health structures have resulted in impoverished health care in the public system, the encroachment by the United States and English model of managed care, and the continuation of few rights to treatment or to good quality treatment. There are few more important putative rights than those to sufficient and equal health care for those not sufficiently financially privileged to be able to take out private health insurance.

Civil liberties organisations consistently confront difficult conflicts of principle. An example would be the right not to belong to labour organisations and yet arguably the right to a fair wage for a fair day’s work, a notional entitlement which can be defeated by workplace arrangements which deprive individual workers of an ability to negotiate workplace contracts that protect their rights to fair remuneration for provision of labour. While understandably the focus of civil libertarians is on protecting the rights of the disempowered, there are other legitimate perspectives as well. The acknowledgment of the legitimacy of such perspectives is one of the features that distinguishes libertarians from socialists, utopians and left wing reformists. The general libertarian approach to such matters is against regulation unless it is necessary to protect the entitlements of people who would be adversely affected by the rights of others — often the powerful and the moneyed.

Rights and liberties debates are rarely straightforward. For instance, what of police wearing weapons? A civil liberties approach that focuses on ordinary members of the public might stress the oppressive aspect of the consistent show of force by members of police forces. However, a focus on the needs of police, respecting their rights to a safe working environment, might stress the need for police to be safe from attack and in face of unpredictable danger. It is a matter of perspectives and balances. It can also be an opportunity for a re-evaluation of the role of organisations such as police and a chance to attempt a reformulation of relationships, such as those between police and citizens, which might reduce the need for most police to require the levels of self-protection that they commonly assert to be necessary.

Frequently civil liberties bodies have been heard lamenting the provision of additional police powers, without concomitant obligations of accountability being imposed on police forces, the encroachment on rights of public access to information about government, the State’s assemblage of information about the private affairs of citizens; and the absence of legal process and representation for vulnerable members of the community. The Councils’ most effective campaign of recent years was that mounted in the early 1990s against the Australia Card, a document which was going to enable linked access by government departments to a range of sources of identifying information. More than any other recent public stance by Councils, this tapped into community mistrust of government activity. The normally meagre coffers of Councils were swelled with substantial public donations. Memberships came from groups not prominent amongst civil libertarians in recent years, including doctors, teachers and unionists.

What can be discerned from such public campaigns and expressions of criticism (sought and brought into the public domain by journalists) is that modern civil libertarianism has remained reactive and relatively atheoretical, albeit still guided in general terms by Mill’s articulation of principles. Its membership still boasts a comparatively small amalgam of people whose unifying characteristic tends to be their concern about the behaviour of government and the institutions of state. The best known civil libertarians tend to be lawyers and academics but the membership of civil liberties’ organisations is much more diverse. Such a polarisation creates a risk identified usefully by Hayek:

The intellectual leaders in the movement for liberty have all too often confined their attention to those uses of liberty closest to their hearts, and have made little effort to comprehend the significance of those restrictions of liberty which did not directly affect them ... Liberty in practice depends on very prosaic matters, and those anxious to preserve it must prove their devotion by their attention to the mundane concerns of public life and by the efforts they are prepared to give to the understanding of issues that the idealist is often inclined to treat as common, if not sordid.[12]

A continuing and, by and large, unresolved issue for civil liberties bodies is how they can serve their constituencies democratically and responsively without succumbing to the temptation of paternalism and without sacrificing principle to populism.

At the heart of civil libertarianism in practice remains a preoccupation with the rights of people who may not be in a position to be effective advocates on their own behalf and a mistrust of the aggregation of substantial amounts of power in the organs of state, particularly when adequate checks and balances are not set in place to guard against abuse. In Australia, the focus for such positions that exists in the United States with its Bill of Rights is not available.

For the most part the work of Councils has been a relatively marginalised exercise driven by the energies of a handful of individuals, some of them charismatic and attractive ‘talent’ for the media. The function of Councils for members of the general community has most regularly been seen in quotations in the newspapers and ‘short grab comments’ on the television and the radio. The latter years of the Bjelke-Petersen regime in Queensland, the continuing corruption scandals in the New South Wales Police Force, the repeated efforts of the Kennett government to by-pass planning and other laws and the Victorian Constitution, and the establishment Australia-wide of private prisons have set in place as a reflex response for many journalists the making of contact with the local Council for Civil Liberties to obtain an ‘alternative’ or ‘provocative’ point of view. In some cases, this resulted in Councils functioning as self-appointed oppositionalists, critical of government measures but not always possessed of sophisticated alternative positions on the difficult issues on which they were asked to comment.

Marginalisation of civil libertarians

This status of civil libertarians’ perceived oppositionalism generated a term of contemptuous opprobrium in the 1980s from police: ‘armchair civil libertarians’, perhaps inspired by the predecessor, ‘armchair academics’ and later in the descriptor, ‘chardonnay socialists’. The tactic was intended to dismiss civil libertarians and their supporters as theorists, out-of-touch with the ‘real world’, always negative and with little by way of constructive suggestions to offer. They were lumped into the same reviled sociological categories as criminologists, academics, utopians and other social do-gooders, characterised as out-of-step with the new management efficiencies and the drive toward privatisation and outsourcing of the 1990s.

The tone and the vehemence of the abuse laid at the feet of civil libertarians and their organisations is open to various interpretations. One is that it is testament to their success in prompting anxiety in police managers, prison authorities, large corporations and representatives of government departments by reason of the adverse publicity that the Councils have generated. Another, and less palatable for civil libertarians, is that such criticisms on occasions have contained at least a kernel of truth and deserved to be articulated.

The future for civil libertarianism

There can be little doubt that the core concerns for civil libertarians remain remarkably similar for the turn of the millennium to what they were half a century before the Alternative Law Journal came into existence. There remains a need for civil liberties bodies to forge for themselves a comprehensive ideology. It cannot be one that embraces individualism as its defining principle, nor one that identifies an undiscerning alliance with anti-conservative political parties. It needs to be one that has at its centre a respect for people’s rights, poorly articulated as they are in Australia.

Undoubtedly, it will embrace a role as a watchdog over government, over privatised utilities and over super-corporations such as Microsoft which have more power than many governments. The activities of those entrusted with especial powers of coercion, such as police, immigration officials, protective workers, and prison officers, will continue to merit close scrutiny.

It will encompass the need to protect workers from the erosion of their rights to negotiate in strength with employers. It will recognise the need for citizens’ privacy to be safeguarded in ways never even contemplated as necessary in the era before the capacity for integrated collection of personal information by both government and corporations. It should encompass a monitoring of government’s erosion of citizens’ entitlement to an equitable provision of health services in the shadow of the onset of managed care.

It will include active lobbying on behalf of minority groups such as those with mental illnesses and intellectual and physical disabilities in face of a system less and less attuned to those with little by way of political muscle. It will involve support for rights to resources for new immigrants, for fair systems of appraisal of claims of refugee status, and for proper recognition to the past role and present plight of Australia’s indigenous people. It will incorporate opposition to racist disempowerment of members of the community and appreciation of the right to work in safety and for proper remuneration.

In such tasks and with such perspectives, Councils for Civil Liberties have many fellow travellers. A concern with the above missions is not unique to civil liberties bodies. However, it may be that civil libertarians will approach their role in respect of such matters differently from the way in which other organisations do. The conundrum for Councils is that the issues with which they grapple are almost never straightforward. They involve the complex balancing of different rights and responsibilities, focusing on whether the arrogation of rights to some constitutes unacceptable derogation from the rights of others. The dilemma that faced Councils during the debate about whether Australia should pass racial and religious vilification legislation is a good example. The growth of anti-semitism in many places at different times has been characterised by unregulated expression of incitements to violence, discrimination and hatred. The failure to check the expression of such sentiments has led to the infliction of physical and emotional harm. And yet Councils are especially sensitive to the need to eschew censorship and restriction on free speech. Civil libertarians can take, and legitimately have taken, different approaches to whether racial and religious vilification legislation should be passed by Parliament.

Ultimately, civil libertarianism is a philosophy that values and recognises rights and responsibilities. Often it will not have a clear answer to complex conflicts between different rights and duties. Libertarians may have different emphases in the difficult balancing exercises amongst entitlements and responsibilities. However, what civil libertarianism can attempt is to ensure that government and other powerful sectors of the community which make decisions that affect rights and liberties are taken in an informed, rational environment, sensitised by community involvement to the impact that enactments and decision-making will have on the lives of individual people. On some occasions, such as where the balance between a proposed measure and the abuse of rights is clear, civil libertarians will speak with one voice. On other occasions, libertarianism must be sufficiently tolerant and broad-minded to acknowledge that more than one approach, consistent with a sensitivity to rights and duties, is legitimate. What then distinguishes civil libertarianism from many other philosophies and movements is its inclusiveness, its humanity and its recognition that legislation, regulation and decision-making by the empowered in respect of the disempowered, when it is heedless of the consequences for the individual, is prone to be abusive and unacceptable. Where the line is to be drawn will often not be susceptible of precise delineation for the civil libertarian, while it might be, for pragmatic reasons for the politician.

A Bill of Rights

The greatest obstacle in the way of clarity and consistency amongst civil libertarian responses to given scenarios of conflicting rights in Australia is the difficulty of articulating values and rights in the absence of a Bill of Rights. If there is to be one task that has the potential to give to civil libertarians a self-defining and influential role in the Australia of the early third millennium, it will be to persuade the general community of the utility and viability of a Bill of Rights and then of the fundamental principles, inspired by the analyses of John Stuart Mill, that should underpin such an instrument. With the move toward a symbolic and real emergence of Australia as its own nation, a century on from its federation, comes the chance, 25 years on from the urgnings of Gareth Evans,[13] to revisit debates about rights and liberties that 100 years ago proved too difficult for the self-interested agendas of Australia’s founding States. The opportunity is present for civil libertarians to nail their distinctive perspective to the masthead of a sophisticated and socially acceptable document that articulates the rights and responsibilities of citizens, corporations and government in the multicultural and diverse environment of the Australia of the third millennium.

References

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[1] Evans, G., ‘Civil Liberties’, (1974) 1 (4) Legal Service Bulletin 99.
[2] In Victoria the Council for Civil Liberties has latterly reinvented itself as ‘Liberty Victoria’.
[3] Pagone, T. and Wallace, J. (eds), Rights and Freedoms in Australia, Federation Press, 1989.
[4] Mill, J.S., ‘On Liberty’ in M. Warnock (ed) Utilitarianism, On Liberty, Essay on Bentham, Fontana Library, London, 1962, ch iv, p.205.
[5] Mill, J.S., above.
[6] Mill, J.S., above, ch v, p.244.
[7] Untitled booklet, c1935, quoted by D. Watson, Brian Fitzpatrick: A Radical Life, Hale & Iremonger, Sydney, 1979, p.78.
[8] Untitled booklet, c1935, quoted by D. Watson, p.79.
[9] See Garey, D., Defending Everybody: A History of the American Civil Liberties Union, TV Books, New York, 1998.
[10] Boaz, D., Libertarianism: A Primer, The Free Press, New York, 1997, p.2.
[11] However, see the coverage of issues discussed within D. Kinley (ed), Human Rights in Australian Law, Federation Press, 1998.
[12] Hayek, F.A., The Constitution of Liberty, University of Chicago Press, Chicago, 1960, p.7.
[13] Evans, above.