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Parliament's role is not to pursue and punish individual citizens - it's to make laws for us all

This is a terribly important column from Henry Ergas.

I've published an extract below - you can read Henry's excellent commentary in full here.


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...senator Jonathon Duniam, supporting the motion on behalf of the government senators, stressed the independence of the Council for the Order of Australia, and underlined that “it’s important that this motion is not seen as directing the council of the Order of Australia, whose independent deliberations must be ­respected”.

But it is undeniable that the motion’s purpose was precisely to urge the council to strip Arndt of the Order of Australia.

And it is equally undeniable that losing the Order of Australia is a severe and humiliating form of punishment that is typically inflicted by the council only when a member of the order has been found by a court to have committed a serious offence.

To that extent, the motion came perilously close, in spirit if not in legal effect, to a bill of attainder, seeking to impose, by legislative means, a punishment on a specified individual for an action committed in the past.

Bills of attainder are prohibited by the US constitution as an indefensible attack on individual liberties; and while the Australian Constitution lacks similar protections, the High Court found in Polyukhovich v Commonwealth (1991) that such a bill would contravene Chapter III of the Constitution, which requires judicial powers to be exercised by courts, and not by the legislature.

Arndt was not represented in the Senate when it debated and passed the motion; she was not given a reasonable opportunity to argue against the punishment with which she was being threatened. Nor did the Senate carefully consider the motion’s possible ­implications, instead falling into a troubling near-unanimity.

Proposed and accepted in the heat of the moment, the Senate process was far removed from any notion of prudent and responsible deliberation. The result is that the Senate has placed the Council for the Order of Australia in an extraordinarily difficult position: whatever decision it comes to will inevitably be tainted by the pressure that motion puts on it.

To make matters worse, Arndt’s offence was plainly that she expressed views that are widely (and rightly) considered to be appalling.

Now, there may be occasions on which it is appropriate for the Senate to condemn particular opinions; but very few decisions should be regarded with greater suspicion than those that use the machinery of parliament to brand individual citizens as heretics. Pushed, as they so readily are, to the point of making conformity with the opinions of the majority both a duty and a necessity, those decisions risk destroying that margin of freedom that gives democratic life its substance and its endless possibility for advance.

At a time when the true believers are everywhere on the march, demanding that any opposing ­voices be suppressed, one might have hoped a party that calls itself Liberal would, before setting so dangerous a precedent, remember the biblical admonition that the sword of power, once it is unleashed, “devours sometimes one way and sometimes another”.

That none of that seems to have troubled the overwhelming majority of senators merely highlights the deeply illiberal spirit of the age.



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