Thursday, February 2, 2012

The Constitution, it is not that good a place to reconise the First People.

I am the first to admit that Australian treatment of indigeonous people has been abhorent and disgraceful. However, unlike Peter Lewis, I do not believe that the Constitution is a good place to address recognition of the Aboriginal people.

First of all, the Constitution is not an Australian document. The Constitution of Australia Act 1900 is actually legislation fully debated, passed and given royal accent by the Parliament of the United Kingdom of England, Scotland, Wales and Ireland. That icon of Australiana, Queen Victoria of the House of Saxe-Coburg-Saafeld consented for the union of English colonies in Australia and New Zealand to form into a new nation of the Commonwealth Of Australia as a dominion of the British Empire.

Secondly, if you read the Constitution, you will find such gems such as
  • it is optional that the colonies of New Zealand and West Australia to join the Commonwealth, while no authority for the Northern Territory to join.
  • The Governor General is the most politically powerful role in the government of Australia, while there is no mention of the Prime Minister nor of the Ministry.
  • Many of the functions of Federal Government we take for granted are in fact specificly barred by the Constitution, the Commonwealth is restricted to only the powers given to it by s51 of constitution.

I am the first to aurgue as Constitutions go, The Commonwealth of Australia Act 1900 is one of the better documents that has survived 111 years of challenges. As a vessel of reconciliation? Not so much. Since we recognise that Aboriginals are citizens of Australia (well technically the Crown) in the 1967 referendum, we have done what we need to do to fix racial problems of the act.

And while I think a Treaty between Aboriginals and the Crown would be great symbolism, any treaty would be dubious at best and illegal under international law at worst.

Take the Treaty of Waitangi. Under strict international law, the treaty is illegal. Because the treaty is only binding on the Maori tribes who signed the actual document. There was no Maori representative for the whole of the Maori Nations, and the Treaty was not included into Statute Law of either New Zealand or the United Kingdom. This does not weaken the document as the basis of New Zealand today, but recognition on the power and validity of the treaty only became de juer in the 1970's, and was generally ignored or nullified by the courts prior to that.

If there was a universally recognised representative of the First People, authorised to negotiate and sign on behalf of all the Australian Aboriginal tribes (and Torres Strait Islanders), and the resulting treaty is passed by both house of the Australian Parliament, we have a binding treaty. Anything else is not worth the paper it is written on.

Mabo did more to fix the right the wrongs of the past. By recognising traditional land use, it removes the Terra Nullis label which allowed colonial Australia to seize land. I would like to see somehow using Mabo v Queensland become the basis of a reconciliation document. Orations like the my Redfern Speech and Kevin Rudd's parliamentary Apology do more to highlight the issue, especially since a constitution change will no doubt devolve into a polarised farce given the political makeup of all major parties.

We have mishandled our fellow citizens for over two hundred years, lets not exasperate it with a half arsed symbol.   

Monday, January 2, 2012

Libertarianism, a good idea that fails the reality check

Libertarianism, a nice idea, doomed.

There is a lot of discussion regarding libertarianism, but it is being confused by Ron Paul saying stuff. So your old pal, Uncle Paul Keating is here to set things straight.

Libertarianism is like Pure Communism and Pure Capitalism. A nice thought experiment for ivory tower types. It is based on the assumption that every person is sane and sensible.

A libertarian is someone who knows that his or her decisions are the best, and any regulation is a personal affront to their liberty.

So, using a scenario, lets explore one aspect of Liberty. The right to use fireworks.

In a libertarian world, every person has the right to own and use fireworks in any way they see is appropriate. If anyone gets injured using fireworks will be able to fund their own recovery because they have saved money or have personal healthcare.

In the real world, this has some major issues. Firstly, people find new and novel ways, generally with the assistance of alcohol or drugs, to injure themselves or others with fireworks, which are in reality controlled explosives. Secondly, people are often unable to fund their recovery due to the fact they chose not (or are unable) to pay for health insurance.

And more importantly, many of the injuries are on children. Children are more susceptible to make stupid decisions like staring into a lit firecracker (or to use them as projectile weapons and so on) because even libertarians will have to agree that children are unable to make sensible or sane decisions like not staring down a lit firework.

So fault one with Liberty, is people make stupid decisions.

To continue, we now have a small group of people who find the number of people injuring themselves and/or others distressful. They do not have to be a majority. They do not even have to make sensible suggestions. They just have to be able to communicate effectively. So these people now say “we must do something about fireworks”. The situation become more charged politically if children are affected. After all, how many of our liberties are sacrificed to “protect the kiddies?”

Hence there is a demand to regulate. A libertarian will argue that the people who injure themselves or others only have themselves to blame. However people do get injured when watching fireworks conducted by professionals using best of breed safety procedures (admittedly rare, but an fatality in Parramatta during a NYE firework display springs to mind).

Even if there was no vocal group demanding to stop fireworks, a sane and sensible government will need to weigh up the risk of people having access to fireworks versus the cost in injury and death they cause, as well as property damage.

And here is a second issue regarding libertarianism. Many regulations are created because people can not make sane or sensible decisions.

While people may decry the “nanny state” mentality or the cost and hindrance regulations cause, generally regulations are a response to a problem, real or imaginary.

Now lets expand our thought experiment to markets, something libertarians hold dear the market. Economists believe that a market is the best mechanism to regulate price. In a perfect market, a supplier will supply a product dependant on cost plus reward (called profit) and a buyer will either chose to buy or not to buy at the set price. The lower the price offered by the supplier, the higher chance a buyer will elect to purchase a good.

This is all well and good. However again this is again working off the assumption that every person in the marketplace is making sane and sensible decisions that do not impact negatively upon others.

And history has shown that this rarely, if ever, happens. Given the market model, suppliers are encouraged to reduce cost while avoid risk to profit. So while there is some economic gains like economies of scale, reducing cost can have some intended or unintended consequences.

Like people dying. Industrial accidents, using unsafe materials, using violence and intimidation to reduce labour costs, destroying the environment to extract materials cheaply, dumping waste in dangerous or harmful ways. Cheating customers and other companies. Or even manipulating the market in dangerous ways (and yes I am looking at the current Global Financial Crisis). The list is endless.

Economists have a term for this. Market Failure. Governments are often forced to regulate market s to protect people and companies and sometimes this regulation is to protect said people and companies from themselves. Sometimes regulations are over the top or even inappropriate (the loud effective communicators problem), but generally they are implemented to protect people or companies from unsafe or unfair practices.

People may feel that regulations are not appropriate. But there are many mechanisms available to affect change. The easiest way is electoral, that is, remove a government who inappropriately regulates. However, the cost of elections (and in the USA, the strange decisions to allow unfetted donations and allowing companies to have the same standing in the political system as individuals) are moving the power from the voter to the companies with money. Libertarians like these decisions for the general principle of regulations are bad, however we are seeing an already money fueled electoral system being hijacked by SuperPACS and big money.

The irony, I believe, that in a push to remove regulations, Libertarians risk having their liberty stolen by people and companies with money, as election spending not electoral votes, becomes the currency of politics.

So to summarise, Libertarianism only works when everyone can stick their eye over a lit firework, but chose not to.