Last night, I went to the Liberty Victoria Voltaire dinner. The Voltaire Award winner and keynote speaker was Waleed Aly: academic, news presenter, guitar shredder and all around cool dude.
He gave a thoughtful and engaging lecture on the importance of examining the philosophical underpinnings of human rights law. It’s a topic I am very much interested in, have lots of thoughts about and have been meaning to do a blog on this area for some time. So here’s my excuse!
And because I am going to refer back to Waleed’s points, I do dedicate this blog to him. Cheers mate!
Waleed Aly’s speech… the Twitter recap!
Unfortunately, I do not have a didactic (photographic) memory and can’t recall Waleed’s speech word for word. However, these are the tweets I made during the speech, or other’s tweets that I retweeted, to give you a sense of the vibe.
I’m the kind of law nerd who reads jurisprudence texts for fun, so Waleed’s riff on the philosophy of human rights and why it needs to be reasserted really hit home with me.
Waleed started by noting that it was difficult to even count how many horrible things occurred even in the last couple of weeks: black kids shot by cops in the USA, terrorist attacks in Nice, attacks that may or may not be terrorist related in Munich and Merrylands (Sydney), US Presidential candidates (Trump) promising to bring back waterboarding “and much, much worse” as though there is no customary international legal prohibition on torture, the failed coup and subsequent purge of media, academics and political opposition in Turkey. It is difficult to believe that things can get better right now.
He then suggested that if we want to understand what is driving these violations of human rights, it’s more useful to ‘zoom out’ – look at things in a more esoteric, philosophical manner. Why do people think that human rights apply to people like them, and not people not like them? (e.g. racist Australians who think that the human rights to seek asylum, or be free from torture and ill treatment don’t apply to refugees who arrive by boat)
Waleed noted that many politicians and rights abusers rely on utilitarianism to justify what they are doing. If you think about torture: the US and others who engage in torture claim that it’s justifiable to torture one person if that results in information that can save thousands. Except… we know from multitudes of studies that information obtained through torture is unreliable, and there’s the moral or ethical angle – can torture ever be justified? So we don’t make decisions on a wholly utilitarian basis of the greatest good for the greatest number. Our utilitarianism is limited by ethical principles, such as human rights.
Waleed’s example here was organ donation: if our society was completely utilitarian, and did not believe in the liberalist ideal of individual freedom, then organ donation would not be an opt in system. Every person’s organs would be available for donation at the time of their death, because that results in more people being able to recover from illnesses requiring organ transplant – the greatest good (health) for the greatest number is achieved best through compulsory organ donation. If we were being really utilitarian, without any limits on that utilitarianism, then healthy living people could have their organs taken for transplant without worrying about consent, if those people were designated as undesirable for some reason.
But we don’t do this, because our society has prioritised individual freedom and choice. People are encouraged to be organ donors. We don’t arbitrarily decide to harvest the organs of criminals to help people suffering from organ failures that require transplants. We have an ethical decision making framework that stops us from achieving a ruthless “greatest good for the greatest number”.
Where does that ethical decision making framework come from? Human rights law.
It is very, very easy to be righteous about human rights, and to fall back on this idea of natural law (which I will go into more detail about below.) But that misses the point hugely. Natural law, when all is said and done, relies on a religious view of the world that implies that there is something inherently sacred about humanity, that human rights are magically imposed on each human because of our divinity as being made in the image of your chosen God.
So how does that work in a secular society, with a Western legal tradition of secularism driven from the Enlightenment onwards to reject natural law or divine rights?
Waleed suggests you have look more deeply at the difficult questions: why is humanity “sacred” enough to justify human rights? Because if we can’t answer that question, then it’s all too easy to not apply human rights when things get tough, or the subject of the right is someone you dislike or fear.
This point really resonated with me, because of the difficulties that I have experienced as an activist with Amnesty International in getting people to care about human rights. Many people will engage with Amnesty activism, but I’ve also experienced some negative engagements from people who want to know why I’m defending “terrorists” (the David Hicks campaign) or “queue-jumpers” (the refugee campaign) or “drunk blacks who beat their children” (the current Community Is Everything/Indigenous Rights campaign.) These people are focused in so much on the micro detail that they’re missing the bigger picture: human rights apply to everyone, not just people that you like or approve. This is precisely the reason why Adrian Bayley’s appeal was so important: something I will elaborate on below. (Disclosure: I did not work on Bayley’s case, but I did work at VLA when he was first arrested, and I know the barristers who continued the case pro bono after VLA refused funding for further legal representation, and am good friends with one of them.) In all of these examples, it is easy for people to ignore the human rights that apply to those undesirable people, because they don’t feel that the subject “deserves” that protection. Or as Waleed said, when things get too hard, it’s easy to pretend that human rights somehow don’t apply to people you don’t like.
More broadly, this is what we need Australia (and the world) to become engaged with: not just human rights as A Good Thing, but the philosophy that underpins the international framework of human rights law. Which is a secular, liberal tradition of legal positivism. (NB: Waleed didn’t use those exact words, that was my take away from his speech.)
It was a fantastic speech! Even more impressive: he did the entire 20 minutes without notes. I have plenty of experience in public speaking and advocacy, but I need at least a barebones framework of notes to work from, lest I go off into irrelevant tangents. To speak eloquently, persuasively and engagingly for a lengthy period without notes is seriously impressive.
Why can’t we just say human rights derive from natural law?
The easy way to explain the universality of human rights is through natural law. It’s easy, but it’s not accurate.
Natural law is the legal philosophy that says law comes from the natural order of things, that it is somehow inherent in every human without reference to any secular institution or worldview. C E Rice in 50 Questions on the Natural Law: What It Is and Why We Need It (Ignatius Press, 1999, page 51) describes natural law as
a universal character, that precedes and unites all rights and duties. The natural law “is nothing other than the light of intellect infused within us by God. Thanks to this, we know what must be done and what must be avoided. This light or this law has been given by God to Creation.” … This law is called ‘natural’ because the reason that promulgates it is proper to human nature.
Natural law believes that just and right laws are tied to moral reasoning deduced from religious belief, that law should “conform to permanent or higher standards of justice or morality.” (Augusto Zimmerman, Western Legal Theory: History, Concepts and Perspectives, LexisNexis 2013)
It is tempting to say that human rights law comes from natural law philosophy, because of the language of international human rights canon.
The Universal Declaration of Human Rights (UDHR) starts off with this:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world
The International Covenant on Civil & Political Rights (ICCPR) and the International Covenant on Economic, Social & Cultural Rights (ICESCR) both open with the same preamble:
The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person
It’s easy to see why natural law feels like an easy fit for human rights law: there’s a repeated notion of the universality and inherence of human rights that derive from the “inherent dignity” of personhood.
But human rights law isn’t really drawn from natural law. While we cannot ignore the influence of Christianity, Judaism and Islam on the early legal philosophies of Europe that eventually percolated through to the Enlightenment, Reformation and modern legal/political thinking, our conception of liberal democratic law is not tied to any particular religious doctrine. Individual countries may refer to particular religious moral principles in their constitutions (the US springs to mind here,) but the basic nuts and bolts of how and why we make laws are completely separate to religion.
Modern liberal democratic philosophy is inherently secular, and as such, we have to resist the temptation to say human rights are derived from natural law.
It is very, very easy to get righteous and sanctimonious about human rights – I’ve certainly been guilty of this! But so long as you remember that human rights law is a legal positivist tradition and not natural law, you’ll be OK.
Legal Positivism: international consensus of ethical principles in human rights law
Legal positivism is the ‘next step’ in most jurisprudence texts after natural law, as it rejects the natural law concept that law derives from God. Instead, positivists argue that “the only factor in determining whether a norm or legal system is legally valid are socially recognised facts and events.” (Zimmermann, page 54)
Frederick Schaeur in “Constitutional Positivism” (1993) 24 Connecticut Law Review 797 at page 801 says that
… law is not derived necessarily from fundamental moral principles, but rather is simply ‘posited’ by human beings and human institutions. The identification of law and legal systems, therefore, is a matter of identification of some social fact, a process not necessarily entailing moral evaluation… the central positivist claim about the separation of law and morality is not a claim about the existence (or nonexistence) of moral values, nor a denial of the preferability of moral laws and legal systems over moral ones, but rather simply a claim that the existence of law is conceptually distinct from its moral worth.
This makes sense to most modern people. Think about it: the Nazis did many, many horrible things that grossly violated human rights – but all these acts were legal, because the Nazi government passed laws to enable concentration camps, purges of Jews, academics, homosexuals, the disabled and unionists, and further and further restrictions of liberty.
The laws are immoral against our ethical yardstick of human rights, but the laws were legal in the sense that they had been validly passed through the Reichstag by the government. The political argument, about how the Nazis restricted all opposition, and how this taints the legitimacy of laws in a democratic system – that’s all a totally different argument.
Human rights law, as body of international treaties and customary law, gives us the ethical yardstick to stop such objectively bad laws from being legitimate. Using Waleed’s example about organ donation and utilitarianism: human rights law about informed consent, individual freedom and choice stop us from forcibly extracting organs from a deceased person for the benefit of others.
Human rights law is our ethical guidelines, or morality, for law making that prevent us from enacting horrific, rights-abusing laws through valid legal processes. It’s the buffer to legal positivism – the moral principles that stop us from doing whatever we want no matter the cost.
We see this in the international legal system. Go back to the first major modern treaty, the United Nations Charter. Look closely at what it says:
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
- to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
- to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
- to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
- to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
- to practice tolerance and live together in peace with one another as good neighbours, and
- to unite our strength to maintain international peace and security, and
- to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
- to employ international machinery for the promotion of the economic and social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
A shorter version would be:
We, the peoples of the world, agree that we do not want another World War, or to continue to do horrible things to each other. Accordingly, we agree that we will set up international systems and laws to act as a series of checks and balances against totalitarian power and abuses of human rights, to promote and protect universal human rights, because it is the right thing to do and our history shows us that we need some kind of universal yardstick or ethical framework to shape our behaviours. We also recognise that we have to work together to make this happen. There is no one world power leading the way.
Essentially, human rights law is about doing the right thing because it is the right thing to do. Picking and choosing when to apply human rights goes against the universality principle (that human rights apply equally and without distinction to all people.) Unlike with natural law, or religious law, we cannot intellectually justify a legal system that denies rights to “others” (however that is defined: race, ethnicity, religion, disability, gender or sexual identity.) Waleed’s point is that we need to get people thinking again about the idea of universal human rights as our modern ethical framework – applicable to all, in all circumstances, in all cases, without exception. That’s how we overcome the contradiction of utilitarianism in liberal tradition.
An example of doing the right thing because it is the right thing to do, AKA human rights in action
Human rights are not something we can pick and choose when to apply. Human rights apply to all people, by virtue of being people, in all circumstances, without distinction.
Waleed’s point that if you don’t think of human rights in this way, it becomes easy to justify ignoring them when convenient is really well demonstrated in the controversy over legal aid funding for Adrian Bayley.
There is no doubt that Bayley is a terrible, awful, no good, despicable human being. He has done disgusting, horrific things: rape, murder, assault, false imprisonment. He is currently serving a life* sentence with a minimum period of 35 years before he will be eligible to apply for parole. In all likelihood, he will die in prison, justly serving time for heinous offences.
* friendly reminder that in Victoria, “life” means life – unlike other jurisdictions, such as Tasmania, where there is a statutory maximum limit to prison sentences, Victoria has gone for the “truth in sentencing” model where life literally means ‘for the term of your natural life.’
However that doesn’t make him a person that should be denied legal aid funding.
The test for a grant of legal aid is twofold: means and merit. As a long term prisoner, who was in receipt of welfare when released and committing offences, Bayley easily met the means test. The question of merit was easily satisfied for his trials and plea hearings: would a reasonably prudent person spend money on their legal representation if in that situation? Yes.
Controversy came when Bayley and his legal team wanted to appeal several of the convictions and sentences he received. Let’s be clear: the sentence he received for the rape and murder of Jill Meagher was not amongst the matters appealed. However, there were serious legal concerns about the sustainability of the guilty verdicts in a series of three rape trials held after his conviction and sentencing for Meagher’s murder.
Bayley, through his lawyers at VLA, applied for legal aid funding to cover the appeal to the Court of Appeal. Despite a decision by the specialist Appeals team at VLA that there was merit in running the appeals, because of a number of legal issues such as the reliability of identification evidence following a high profile trial where the accused’s image has been splashed across every news outlet on TV, print and online, VLA decided not to fund the appeals because of a vague “public interest” test.
Apparently it is not in the public interest to fund serious criminal appeals where the accused is A Very Bad Man.
That is not the correct test. Saul Holt QC and Paul Smallwood, two barristers who used to work at VLA, took VLA to the Supreme Court over this, pro bono. For the un-legal, pro bono means without being paid. They did this because it was the right thing to do: Bayley had a right to appeal his convictions for trials where there was a significant doubt that because of the other high profile trial, the three rape trials were tainted by a collective understanding that Bayley was guilty of everything, ever.
(This is a very simplified summary by the way. Look at at the judgements in more detail if you want the full nitty gritty.)
We know that Mr Holt and Mr Smallwood, and the firm of James Dowsley & Associates, who picked up the case pro bono after VLA lawyers were prevented from continuing because of the senior management decision to refuse funding, did the right thing because we as an Australian and a global community have agreed that there is a right to legal representation, and a right to legal aid where the matter has substance and is serious.
Stripped of all the official waffle, VLA’s decision to refuse legal aid funding was basically that it did not want to be accused in the media (again) of providing free legal help to Very Bad Men. VLA has been constantly criticised for appropriately funding appellate cases for the likes of Peter Dupas and Tony Mokbel, and it was very clear in the submissions made to the Supreme Court in the case about funding that VLA’s decision to refuse funding was based on this idea that Bad People shouldn’t get legal aid.
Let’s look at the facts: (taken verbatim from Justice Bell’s decision in the Supreme Court)
1 In three trials before a judge a jury in the County Court of Victoria, Adrian Ernest Bayley, who is aged 44 years, was convicted of several offences, including rape, against three female victims. He was sentenced for these crimes on 28 May 2015. At that time, he was serving a sentence of life imprisonment with a non-parole period of 35 years imposed by Nettle JA in this court on 19 June 2013 for the rape and murder of Gillian Edie Meagher. For the offences of which he was found guilty in the County Court, her Honour Judge Pullen sentenced Mr Bayley to imprisonment for 18 years (to be served concurrently with the life sentence) and imposed a new non-parole period of 43 years. In setting that new non-parole period, her Honour acknowledged that, having regard to Mr Bayley’s age, it most likely extinguished any hope of him being released from prison on parole.
2 Supported by advice from senior and junior counsel representing him at the trials in the County Court, Mr Bayley has sought leave to appeal to the Court of Appeal against the convictions imposed in the first and third trials and the sentences imposed in all three trials. He also applied to Victorian Legal Aid, the second defendant, for legal assistance under the Legal Aid Act 1978 (Vic) in relation to those appeals (he received legal assistance for the trials). When his applications for legal assistance for the appeals were refused, he exercised his right under s 35(1) of the Legal Aid Act to ask for the decisions to be independently reviewed.
3 The review was conducted by John Nixon, the first defendant, who is an experienced retired judge of the County Court. The decision of the independent reviewer was that it was likely that the Court of Appeal would allow Mr Bayley’s appeals against the convictions recorded in the first and third trials and, in consequence, that the convictions would be quashed. He also decided that the quashing of the convictions would result in a new and lower non-parole period being set. He considered that the appeal against the sentence imposed in the second trial would fail.
4 Despite being of those opinions, the independent reviewer confirmed the decisions to refuse to grant legal assistance to Mr Bayley. In relation to the condition in s 24(1)(b) of the Legal Aid Act that it must be ‘reasonable having regard to all relevant matters to provide the legal assistance’, he referred to observations by an independent reviewer in another case that ‘there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited’. The independent reviewer in the present case did not expand on his reference to this observation or explain its relevance to Mr Bayley’s case.
Section 24 of the Legal Aid Act, which VLA relied upon as did the independent reviewer who confirmed VLA’s refusal to grant aid, sets out the basic guidelines that govern the granting of legal assistance: people who cannot afford legal representation, have limited means and minimal assets, who are facing serious criminal charges or serious legal issues, and in the case of criminal appeals, whether the appeal is likely to succeed.
Nowhere does section 24 refer to the personal moral fortitude of a person as a relevant consideration for deciding whether to grant legal aid. Deciding to refuse legal aid to A Very Bad Man is a seriously concerning precedent.
VLA strenuously deny that this is what their reasoning was, but when you push past all the bluster and PR, that’s really what it was about: they abandoned VLA’s convictions to uphold human rights for all in the face of negative public opinion about the desirability of providing legal assistance to Bad Men.
Despite Justice Bell finding in favour of Bayley and vindicating his legal team’s view that legal aid should be granted, VLA still refused to fund the appeals which were ultimately successful. In the joint judgement of Chief Justice Warren, Appellate Justice Weinberg and Appellate Justice Priest, their Honours noted that the function of an appeal against conviction is to assess (at paragraph 136)
… whether it was open to the jury to be satisfied of guilt, the court must make its own independent assessment of the evidence. Indeed, it is wrong for the court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’. But for the applicant to establish that a verdict is unsafe or unsatisfactory, it will not be sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about guilt. The relevant enquiry is whether the jury must, as distinct from might, have entertained a reasonable doubt as to guilt.
I strongly recommend that you read the full decision of the Court of Appeal before commenting on this or any other piece about the Bayley trial. There were serious problems with the trials that occurred after the intensely high profile murder case. The Court of Appeal was right to quash one conviction.
Do these appeals make it any more likely that he will ever be released? No.
But is that question, or the question of whether his conduct was immoral, bear any weight on his right to legal representation or right to appeal decisions that are unsustainable in law? Absolutely not!
Mr Holt and Mr Smallwood, and the firm of James Dowsley who continued acting despite the refusal of legal aid funding, are to be commended for their decision to keep acting for Bayley. They did the right thing because it was the right thing to do – because all involved firmly believe in human rights as a universal ethical framework.
This dedication was noted by the Court, which is significant (as usually the Court has nothing to say on how the legal representatives came to be before them)
196 We wish to acknowledge the assistance given to the Court by senior and junior counsel who appeared pro bono on the applicant’s behalf, as did their instructing solicitors. Legal aid was, we were told, declined for the preparation and presentation of the applications in this Court. We were not told why that was so.
197 In our opinion, that decision was regrettable. The applicant’s case required the assistance of experienced and competent counsel. He was in no position adequately to represent himself. Any proper appraisal of the available material would have made it abundantly clear that, at worst, the applicant had a strongly arguable case for acquittal in relation to the convictions that he sustained in the first trial. As regards the third trial, his application, though ultimately unsuccessful before this Court, was at least arguable.
We cannot pick and chose who gets to benefit from human rights: it is all or nothing. That isn’t a natural law stance, I’m not suggesting that there is some divine aspect to human rights. But since 1948, our society has firmly held to human rights legal principles with a steadfastness of conviction in legal positivism.
These are the standards that we have agreed to be held up to. And they apply to everyone – not just the convenient or easy.
I strongly urge everyone to take to heart Waleed’s recommendation that we think more seriously about the philosophy of how we came to agree that human rights are our ethical principles, to better overcome our current chaos and fear.
As a final tribute to the awesomeness that is Waleed Aly, here he is busting out amazing guitar solos in the Reclink Community Cup’s tribute to Prince: Purple Rain.
also here’s his Gold Logie acceptance speech. For my non-Australian followers, the Logies are this weird kind of popularity contest – awards for TV that are dished out on the basis of a popular vote coordinated by a trashy tabloid magazine. For a person of colour, a Muslim, an academic to win a popular contest like this is pretty spectacular.
Like the class act that he is, Waleed made a funny and poignant acceptance speech that demonstrates what a fundamentally good bloke he is in truth.
Also for my non-Aussie followers, this is an editorial piece that Waleed and the producers of The Project won a Walkley Award (Australia’s highest award for journalism quality and integrity)
They have also received commendations and awards for other editorial pieces, like this piece on renewable energy and political failures
… or this piece on a major election 2016 issue, negative gearing
… or this much shared and highly commendable blast against Islamist terrorism.
Waleed Aly is a man who knows his stuff, cares about people, and excels in communicating.
Also, he’s just a nice bloke! (And thanks for letting me geek out last night and shake your hand.)