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Monday, 14 August 2000
Page: 16255


Senator BRANDIS (4:59 PM) —Since the Senate last sat, we have marked an important anniversary. A century ago, a small delegation, led by Edmund Barton and Alfred Deakin, journeyed to London to secure the passage by the Imperial Parliament of the Commonwealth of Australia Constitution Act.

They arrived in London as colonial politicians. But when they returned to these shores, 100 years ago almost to this very day, they returned as the founding fathers of the Commonwealth. They brought back with them not just a Constitution, but all of the hopes, the aspirations and the ideals of both a new nation and a new century. Today, as we mark that centenary and as we stand at the dawn of our second century, it is appropriate to reflect on the achievements of our first.

It is appropriate to remember and to celebrate the fact that, although Australia may be one of the world's youngest nations, it is now one of the world's oldest democracies. And not only that—unlike most democracies, Australia has been a democracy from the moment it became a nation. There are very few countries which can make such a claim. We can be proud that, for Australians, it was never necessary to achieve our democracy by violence; that from the time this nation was founded, not a drop of blood has been spilled by Australian fighting Australian in civil conflict.

We can be proud that for 100 uninterrupted years, the public business of our nation has been conducted decently and openly; that governments have been chosen peacefully and democratically; that our institutions have maintained the respect and confidence of the people; and that, all the while, despite enduring the suffering of depression and war, our country has continued to grow in prosperity, while fulfilling its social obligation to all of our citizens.

I know that in some circles it is regarded as fashionable to be cynical; to affect a world-weary contempt for traditional institutions and verities; to regard the expression of patriotism as philistine. At the risk of incurring the scorn of a deracinated intelligentsia, allow me to declare, Madam President, my firm belief that, when over the next few weeks tens of thousands of foreign visitors come to Sydney to see the Olympic Games, they will find themselves in one of the greatest cities, and the most successful nation, in the modern world.

The success of any nation depends upon many things. It depends upon the spirit of its people. It depends upon the wisdom of its governments. But not least of all, it depends upon its constitutional foundations. We should be slow to change that which has served us so well. At the very least, there lies a heavy burden of persuasion upon those who seek to displace our Constitution, to demonstrate that any replacement will work as well. The Constitution whose centenary we celebrate can, at least, make two claims that no other model can make: that it has stood the test of time; and that it has been the foundation of a great and prosperous nation.

I come to this place as a representative and an advocate of the liberal democratic tradition. There are, I believe, two great political traditions in Australia: the social democratic tradition, represented by our opponents, and the liberal democratic tradition, represented on this side of the chamber. Before I speak of our differences, let me dwell for a moment upon what we hold in common: the shared commitment of all sides of politics to the democratic form of government. We do well to remind ourselves from time to time that, as the Prime Minister once famously said, the things which unite us as Australians will always be more important than the things that divide us.

The things that divide us are, of course, two fundamentally opposed philosophies about the role of government in a democracy. As a liberal, I believe that one of the most important things a government can do is to understand its own limitations. There is a great temptation among some who seek to gather political power into their hands, to use that power to right every wrong—whether the wrongs be real or imagined—to create a perfect society—to build a new Jerusalem.

Surely, if the 20th century has taught us anything, it has taught us the folly of utopianism. It has taught us that the desire to impose an ideologically conceived, rationally perfect structure upon society leads, by a short and wicked path, to the belief that individual men and women are just building blocks in a master plan—and, like building blocks, they can be hewn, moulded, tortured into shape; that an individual person, or a family, or a child, is nothing but an integer in some monstrous calculus, able to be traded, or sacrificed, merely in the name of an idea.

And with the fallacy of utopianism has come that other great evil—the fallacy of utilitarianism. The belief in the greatest good for the greatest number, while it sounds anodyne—even commonplace—can also lead, by a short and wicked path, to the belief that the rights of the few can be sacrificed in the interests of the many; that the end justifies the means; and that men and women are just means, not ends in themselves. It finds form in the excuse of every tyrant since the dawn of time—Bassanio's advice to Portia: `To do a great right, do a little wrong.' How many innocent lives have been sacrificed upon that pretext?

As a student at Oxford in the early 1980s, it was my privilege to sit at the feet of the man who I regard as the greatest liberal philosopher of the 20th century, Sir Isaiah Berlin. This is what he said:

If the essence of men is that they are autonomous beings—authors of values, of ends in themselves, the ultimate authority of which consists precisely in the fact that they are willed freely—then nothing is worse than to treat them as if they were not autonomous, but ... objects ... whose choices can be manipulated by their rulers. To treat men in this way is to treat them as if they were not self-determined. `Nobody may compel me to be happy in his way,' said Kant. `Paternalism is the greatest despotism imaginable.' This is so because it is to treat men as if they were not free, but human material for me, the benevolent reformer, to mould in accordance with my own, not their, freely adopted purposes ... To manipulate men, to propel them towards goals which you—the social reformer—see, but they may not, is to deny their human essence, to treat them as objects without wills of their own, and therefore to degrade them.

It follows from what I have said that the first duty of any government is to protect the liberty of the citizen to choose his own ends—and that includes protecting the liberty of the citizen from government itself. Australia has been relatively free of the abuse of political power. Yet, as those of us who lived in Queensland in the mid-1980s well know and will never forget, civil liberty is a fragile thing and, even in a democracy, political power is a dangerous elixir for some.

The liberal view of society demands respecting the right of citizens to choose, so long as they respect the equal rights of others, how they live their own lives. It demands respecting their right to hold and to express unpopular opinions. While society is entitled to require its citizens, in the sphere beyond their private lives, to conform to certain elementary norms of conduct, it has absolutely no business requiring its citizens to conform to any norms of belief or attitude.

I do not think that the argument of John Stuart Mill, when he wrote the second chapter of On Liberty 141 years ago, has ever been refuted: that a liberal society is only worthy of the name if its citizens enjoy an absolute right to hold, and to express, opinions which other members of society find outrageous. Any attempt to limit that right, whether by actual censorship of opinions or by the insidious new cultural tyranny sometimes called `political correctness', is a fundamental violation of a free society. For as long as I sit in this place I will defend the absolute right of all citizens to the free expression of their opinions—no matter how unfashionable, ignorant or offensive those opinions may seem to others.

I have spoken so far of the need for governments to be conscious of their limitations, to circumscribe the use of political power even for what seem to them to be benevolent ends. But conservatism about the use of public power is not the same thing as minimalism, for there are some things which only governments can do, and do them they must.

All parties in this place accept that one of the fundamental obligations of government is to secure equality of opportunity. To speak of a society based upon the liberal ideal of freedom to choose entails the opportunity to make that choice worthwhile. Liberty is not an abstract notion. It is only in a society based upon equality of opportunity that the fruits of liberty can fairly be enjoyed by all.

But of all the obligations of government, perhaps the most fundamental is this—the obligation to protect the weak from the strong. It is a need as old as government itself—for men first formed themselves into civil society to protect themselves from predators without. They enacted the earliest of all types of law, the criminal law, to protect themselves from predators within.

In every age, in every society, the need to protect the weak from the strong manifests itself in new ways.

All of us who come to this place come shaped by the experiences of our own lives and careers. In my own case, as a trade practices barrister, I have seen many times at first hand the abuse of economic power and, in particular, the use of commercial and industrial power by monopolies, both of capital and labour, to damage or destroy small businesses.

No-one has made the case for free markets more persuasively than Adam Smith. But even the intellectual progenitor of modern capitalism was moved to write, in The Wealth of Nations:

People of the same trade seldom meet together, even for merriment or diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.

My own professional experience has taught me to share Adam Smith's cynicism, even in regard to some of the most powerful boardrooms in modern Australia. It has also convinced me that an absolutely essential condition of any market based liberal democracy is the existence of strong laws to protect competition, enforced by a regulator with the powers to make that enforcement effective. We are fortunate, in Australia, to have such laws in Part IV of the Trade Practices Act and to have in the Australian Competition and Consumer Commission—which I have represented on many occasions—such a regulator.

It is not, in my view, merely the role of the Trade Practices Act to regulate market power. It is the role of the Act to protect against all forms of abuse of economic power, whether commercial or industrial, whether by companies or by trade unions. In that regard, I view with unconcealed horror the policy of the opposition to strip from the Act the protection given to innocent businesses by section 45D.

How can it be right that a business—invariably a small business, often a business upon which the livelihood of a family depends—should be able to be taken hostage in an industrial dispute in which it has absolutely no interest? How can it be right that if that business is wrecked—the livelihood of its owners destroyed, the jobs of its employees lost—they should be denied the protection of the law? How can it be right that it is unlawful for two companies to conspire with one another to damage the business of a third, but it is not unlawful for two trade unions to conspire with one another to damage that same business?

By threatening to emasculate section 45D of the Trade Practices Act, by depriving innocent people of the protection of the law against economic bullying, the Australian Labor Party have declared themselves willing to abdicate the most fundamental and ancient obligation of government—the obligation to protect the vulnerable from the powerful, to protect the weak from the strong.

Finally, I want to say a few words to my own party. At the beginning of this speech I described Alfred Deakin as one of the architects of this nation. But he was more than that. When on 2 June, 1909 he formed his third government, the `Fusion Ministry' of liberals and conservatives, he joined with many who had been his lifelong opponents to create the basic architecture of liberal democratic politics in Australia. A generation and a half later, Sir Robert Menzies achieved a similar feat, putting bitter personal and ideological differences behind him to fuse the so-called `fourteen fractions' into the modern Liberal Party.

History remembers Deakin and Menzies as the two great architects of Australian liberalism because they were uniters, not dividers; because they had the personal largeness to put past conflicts behind them; because they grasped that the fundamental obligation of political leadership is not to cower in a ghetto of like-minded souls but to embrace the widest constituency it can possibly reach; because they had the vision to devise, and the skill to summon into being, a new and greater political structure; and because they had the wisdom to see that the liberal democratic tradition in Australia rests upon two pillars, not one—the liberalism of Mill as well as the conservatism of Burke—and that its capacity to draw its intellectual capital from both of the great traditions of modern philosophy is not a weakness, but its enduring source of strength.

With those remarks, I conclude by expressing my gratitude for the confidence of those who sent me to this place, my profound awareness of the privilege of representing the people of Queensland, my deep respect for this institution, the Senate, and my pledge to serve the public good of this nation to the best of the my ability.