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June 18, 2008 | by  | in Online Only | [ssba]

Dishonest Legislation

Back in April, the Public Health Bill caused a minor stir when the Commonwealth Press Union’s Media Freedom Committee said it was afraid Section 81 of the Bill could be used to restrict media reporting of suicides and alcohol and food issues. Section 81 grants the Director-General of Health the power to “issue a code of practice or guidelines to a sector on a particular activity that the sector undertakes if the Director-General has reason to believe that the sector can reduce, or assist in reducing, a risk factor associated with, or related to, the activity.”

Commonwealth Press Union chairperson (and Dominion Post editor) Tim Pankhurst told the health select committee that although he believed the Bill had been drawn up in “goodwill”, it had been formulated in such a way that the Director-General could interpret his powers to include substantial restrictions on creative freedom. Pankhurst’s argument was based on the following belief:

“Good law is law that is clear in its intent and as we are seeing with the Electoral Finance Act it becomes shambolic when the legalities are confused.”

The issue of legislative transparency that Pankhurst promotes is also behind the current debate over abortion law. The central law regarding abortion, Section 182 of the Crimes Act 1961, states that the killing of an unborn child is a crime punishable by up to 14 years imprisonment. However, Section 182.2 adds the caveat that “No one is guilty of any crime who before or during the birth of any child causes its death by means employed in good faith for the preservation of the life of the mother.”

This law has actually remained unchanged since the sixties, even though abortion was effectively legalised in the late 70s and early 80s. The liberalisation of abortion law was effected not by changing Section 182, but through the addition in 1977 of Section 187A, which adds a number of exceptions to Section 182: when the pregnancy is the result of rape or incest, when the child would be born “seriously handicapped”, or when the mother is “subnormal”. More importantly, Section 187A defines the various situations in which abortion is “for the preservation of the life of the mother” to include concerns for the mental health of the mother. By the early 80s, doctors and judges had come to interpret this definition liberally: if a woman says her pregnancy could harm her mental health, the abortion is regarded as legal. 98% of abortions are now carried out at least nominally for the sake of the mother’s mental health.

Last week, Justice Miller of the High Court found that the Abortion Supervisory Committee has “misinterpreted its functions and powers” for allowing such abortions to go ahead. Anti-abortion charity Right to Life had taken the ASC to court and expected the judge to order an immediate change to the enforcement of abortion law. However, while Justice Miller has argued that the law and its interpretation should be closer together, he has not asked for any change to enforcement, leaving parliament to decide whether to bring Section 187A into line with current practice.

Last November, the Solicitor General David Collins QC raised the importance of legislative transparency when he called the Terrorism Suppression Act “unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the Police in [the October 15 raids].” When the Act was passed back in 2002, it was largely intended to prevent the support of international terrorism networks. However, because it was sloppily formulated the police believed they could apply it to domestic criminals, and put this to practice during last year’s raids on activists. Because the Act was not clear about its application to domestic suspects, it was used in a manner not intended by its legislators. At the same time that this erupted, the Electoral Finance Act was also coming under fire for indirectly banning political placards unless they contained the holder’s name and address.

The Benefits of Dishonest Legislation
It seems obvious that legislation should be written in the statues exactly as the legislators intend it to be applied in case law, to avoid confusion. But things aren’t always done this way in the Westminster system. In 1806, after a decade of unsuccessful attempts to ban the slave trade, William Wilberforce instead passed a motion banning Britons from participating in the slave trade with French and hostile colonies (including the newly independent USA). Since this route constituted almost the entire British slave trade, it allowed Wilberforce to sneak abolition in by proxy. A positive public response then allowed abolition proper to finally make it through parliament the next year. Thus it was by using dishonesty that the abolitionists were able to end a disgusting, inhumane practice.

Just as our judiciary take a liberal interpretation of our abortion laws, so the police of Amsterdam and Vancouver take a liberal interpretation of their nations’ drug laws, with the tacit consent of their governments. Prejudice towards drug users still frightens legislators from legalising cannabis, but they understand that strict enforcement of the law is neither possible nor desirable, so they have instead allowed a fairly obvious misinterpretation to go ahead, to the benefit of pretty much everyone.

Transparent legislation, which is written out exactly as it is both intended by legislators and actually interpreted by the police and judiciary, is ideal, and we should strive to make all legislation transparent. But because politics does unfortunately get in the way of sane social policies, dishonest legislation is often the only way to pursue justice. So dishonesty can be an acceptable compromise.


About the Author ()

Tristan Egarr edited in 2008. He threw a chair once.

Comments (3)

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  1. James Malthus says:

    I’m getting pretty sick of (and very worried by) this government’s sloppy law-making.

  2. Howdydoody says:

    It is a worry… Interesting to see how law and order is going to be a hot election topic yet again… And lets not forget the anti smacking bill…

  3. Sam C says:

    Once again you ruin a perfectly good argument by bringing drugs into it. You may care about drugs Tristan, but not too many other people do. I was expecting the ending to be about something that actually really matters to people, you know about how police officers can get away with assault and murder, about how the transport bill sneaks in all sorts of hidden ways the government will be able to tax us, about how “dishonest legislation” is being used to the detriment of people (who don’t use drugs as often as you obviously do).

    Maybe draw a conclusion like: we need a longer parliamentary term, or better vetting of legislation by some body, or a supreme court than can strike down legislation.

    Was I really expecting too much?

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