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'Kangaroo Court': Family Law in Australia
by John Hirst, in Quarterly Essay, Issue 17, 2005. Black Inc., $13-95
ISBN 186 395 3418
Reviewed by Barry Maley
You need to be a good scholar, a good writer, as well as brave, to launch a long-overdue critique of the Family Court. La Trobe University historian John Hirst fills the bill with this curial J'accuse probing the Court's injustices. The unending stream of anger directed at the Court since its inception has honed the public relations and polemical skills of its judges. So, on cue, they have responded quickly to Hirst's analysis. The former Chief Justice of the Court is reported as describing the criticisms as 'emotional and unbalanced…grossly irresponsible, and just plain wrong', with the Acting Chief Justice joining him in dismissing the charges. Hirst has replied in the press, showing that the judges give no evidence rebutting his central criticisms about the deficiencies of the Court and the family law it administers. The sources supporting his claims are fully referenced in this Quarterly Essay.
This is a sensible, informative, balanced and fair book. It breaks the silence and secrecy that have surrounded the multiple injustices inflicted on so many of the 50,000 or more men and women who divorce each year. It is a passionate book, but nothing more than the justified indignation of one who has seen wrongs inflicted and is driven to speak. Yet it remains thoroughly objective in identifying problems in both family law and in the Court's interpretation and administration of the law.
Hirst's main focus is on the Court's handling (or mishandling) of custody of children and access to them following divorce—or, in official parlance now, 'residence and contact'. Public opinion, tradition, parents themselves, and the Court favour mothers as the prime carers of children—especially young children. Custody settlements may be agreed between divorcing parents or decided by the Court when parents can't agree. Either way, somewhere between 70 and 80% of children end up with the mother. Hirst says: 'The burden of this essay has not been that the Court has been necessarily wrong to choose the mother as custodian. It is very hard to argue against the mother as the best primary carer of a baby and a very young child. But having given the mother custody, the Court allows her to do what she likes. She can shut out the father, change the kids' names, make false allegations, defy the Court—all more or less with impunity'. His concern, then, is to demonstrate in case studies and otherwise that such things happen quite frequently, and the outcome has been the anguish, and worse, of thousands of fathers either excluded from or marginalised in the lives of their children.
Passed by only one vote with the support of the two main parties, the Family Law Act 1975 establishing the Court was an inititiative of the Whitlam government and Attorney-General Lionel Murphy. As well as removing marital fault as a ground for divorce and substituting 'irretrievable breakdown' of the marriage, the Act was seen as a progressive step in avoiding the trauma and cost of divorce by discouraging litigation and establishing a 'caring' or 'helping' court.
In its early days the Court took a severe view of parents—particularly fathers—who disobeyed its custody orders by abducting children from the custodial parent, or mothers who refused legitimate access to a non-custodial father. Before long, however, the Court began to undermine its own authority by abandoning the use of its contempt-of-court powers in such cases. The overriding principle became what the Court believed, in its discretion, to be in 'the best interests of the child'. Accordingly, a parent (usually the father) who had been allowed regular access under the terms of a divorce settlement, but who was effectively denied access by the behaviour of the custodial parent, could no longer depend upon the Court to protect that access if the custodial parent was determined to deny it. If the Court believed it would not be in 'the best interests of the child' to fine or gaol the offending custodial parent, the access-denying behaviour would be ignored. So the principle of 'best interests' and its absolutist interpretation and use has since been employed by the Court as the justification for failing to uphold the Court's own access rulings. Thousands of parents, in the main caring and decent fathers, have effectively lost their Court-determined entitlement to keep in regular contact with their children because the Court will not insist on the implementation of its orders. Hirst quotes from the reports of various bodies, such as the Law Council of Australia, the Law Reform Commission, a Parliamentary Committee, and the Family Law Council, lamenting the failure of the Family Court to act against non-compliance with its orders.
In doing so, the Court retreated from its own, early precedents which had firmly declared that its authority should be upheld, and that there were other considerations that should be taken to account in conjunction with the 'best interests of the child'. For example, considerations broadening the scope and content of the 'child's best interests' by acknowledging the importance of fathers in the emotional life and long-term socialisation of children and the inhumanity that might be visited upon fathers if severed from their children. Hirst, in agreeing with this latter approach, says: 'This is not to suggest that the best interests of the child should be overlooked in enforcement; rather that they should not be the paramount consideration… '.
The difficulty, of course, is that allowing, say, a father's interest in having time with his children to be included as a criterion that must be taken into account, could conceivably lead to a reduction of the child's welfare while enlarging the father's. Should the Court accept 'father's time' when it believes that this will not reduce the welfare of the child? Or should the Court countenance some reduction in the child's welfare if it believes that this is balanced, or more than offset, by the benefit to the father? To accept either of these propositions would be contrary to the Court's present practice. It may come as a surprise to many conscientious fathers to learn that, under the law as interpreted by the Family Court and the High Court, non-custodial fathers have no legal right of post-divorce access to their children. Again, the principle of the 'best interests of the child', as interpreted in particular cases by the Court, prevails. To quote from Hirst: 'The principle on which the Court operates is, "access by a non-custodial parent will only be ordered where access will advance and promote the welfare of the child" ' (emphasis added).
A strength of the book is the introduction of some individual case studies of men, fighting for contact with their children, who have suffered injustice under the Court's implementation of the law. They make sad but fascinating reading. In introducing the first of these cases, Hirst makes an important point elaborated in the case study:
'Sometimes defenders of the Court cite the low 5% trial figure [of contested divorce settlements] to show that most people are satisfied with how their cases are settled. This is far from the truth. People settle because they run out of money to pay lawyers (and haven't got the time and energy to conduct their own case) or they face an allegation that is too hard to fight or they are told they have no hope of winning what they might want. Fathers who might want to see more of their children than every second weekend have little hope unless they can argue or allege that their wife is somehow unfit.'
Perhaps many will also be surprised to learn that the law requires that children's names can be changed only with the consent of both parents. Nevertheless, the Family Court will allow a change of name against the wishes of one parent if it considers that the change of name will be—you guessed it—in the 'best interests of the child'. Hirst gives us a case study on this matter where the Court refused an application by a father to restore the family surname of his children which had been changed without his consent by the remarried mother. Hirst comments: 'The Court is committed to ignoring wrongful behaviour in a custodial parent unless it damages the best interests of the child. This makes it hard for non-custodial parents to see it as a court of justice'.
A further source of injustice, yet to be remedied, is the effect upon fathers and relations with their separated children of custodial mothers' unsubstantiated allegations of abuse of the children by the fathers. Abuse of children is, of course, a serious issue and the need to protect children is unarguable. The trouble is that accusations of abuse without foundation may be unscrupulously used in battles over custody or simply as part of the malice that is not uncommon in divorce proceedings.
As Hirst notes, an allegation is not investigated by the Court but passed over to the state welfare departments who report either that it has been substantiated or not substantiated—not that it has not occurred. The victim of the 'unsubstantiated' allegation has not been declared innocent and continues to wear a stigma that cannot be removed unless a criminal charge is brought and shown to be false. In the meantime, so far as the Family Court is concerned, accused fathers have to prove their innocence. The burden of proof and the costs of doing so have shifted to them.
Without such proof, and bearing the slur of an 'unsubstantiated' accusation, the father stands as supplicant for justice before the Court. Hirst summarises the way in which the Court has developed principles removed from the established civil law test of determining the truth or falsity of allegations on 'the balance of probabilities' to adopt instead the quicksand tests of 'lingering doubt' and 'unacceptable risk'. This has meant that the Court has evaded its responsibility to establish whether or not abuse has in fact taken place and to assess risk. In other words: 'Now the Court was assessing whether something that might or might not have happened might happen again' in response to an unproven allegation that abuse had taken place. In using the tests of 'lingering doubt' and 'unacceptable risk' the Court stacks the odds against the father. The unjust outcome for many fathers is lingering stigma and denial of free access to their children. Perjury by mothers may go unpunished and an unsavoury corollary in some cases of unfounded allegations has been mothers instilling in their children repulsive falsehoods about their fathers.
Towards the end of the book, John Hirst devotes a few pages to discussing no-fault divorce and observes that the usual practice of the Court is to award custody to the mother unless there is clear evidence that she is unfit. No-fault divorce (which may be unilaterally invoked) and the usual mother-custody that follows bring the prospect of reduced or lost contact with their children for unblemished fathers, irrespective of the fact that the wife may have seriously misconducted herself during the marriage. For example, a fit mother who has been an adulterous and divorce-invoking wife need have no fear that her conduct in the marriage will prejudice her custody of the children; or lessen the obligation of the father to financially support the children, to be prepared to see less of them, to yield possession of the family home to the mother and her lover, and to find another home for himself.
Hirst finds such a scenario morally disturbing and unjust; not on the score that the mother has custody, but because of the consequent and unjust damage to the material and emotional interests of the father when the circumstances of the marriage and divorce are ignored. A survey by The Centre for Independent Studies which Hirst quotes shows that 75% of Australian adults agree. It is a scenario made possible by the legal irrelevance of marital misconduct to the terms of a divorce settlement. But Hirst believes that public opinion would not support a move to allow the Court to take serious marital misconduct into account in determining the terms of a divorce settlement. The Court, he says, 'embodies the contradictions of our age…' and we are not likely 'to supply new instructions that will rescue it from the no-fault morass.'
Recently, the question of legislating for a rebuttable presumption of joint custody has been the subject of inquiry by the House of Representatives standing committee on Family and Community Affairs. During its deliberations the suggestion was attacked by the Chief Justice of the Family Court and others. Hirst supports the proposal. The standing committee, for reasons that are not clear, did not recommend legislating for joint custody.
Hirst comes out in favour of introducing the inquisitorial method to the Court's proceedings, whereby the judge gathers the evidence in the absence of the usual rules of evidence, rather than the traditional adversarial method. This conforms with the federal government’s own acceptance of the principle following such a recommendation in the report of the House of Representatives standing committee. Hirst says little, however, about the possible objections and difficulties that this might involve, except noting that lawyers could not be excluded from advising clients involved in such proceedings.
Returning to his main theme and summing up his charges, Hirst focuses on the perverse results of using 'the best interests of the child' as an overriding principle in guiding judgements. He says that despite attempts by the federal government and committees of inquiry to induce the Court to ensure as far as possible the full involvement of both parents in the child's life, it has not done so. Since the principle remains, it continues to be used by the Court to:
*abandon the enforcement of contact orders;
*deny even a presumptive right in a parent to see a child;
*allow custodial parents to change their children's names without permission;
*keep parents accused of child abuse from seeing their children though no offence has been proved against them.'
He concludes gloomily that he 'cannot see the way by which the Court can be rescued', but in the meantime he recommends the following changes to improve it:
*The Court must uphold its authority when it has been deliberately and persistently defied.
*Fit parents should have the right to see their children.
*If access is refused to a parent entitled to it, child support should not have to be paid.
*Accusations of abuse should be resolved by a clear finding of guilt or innocence,
they should be made in open court on oath, and false accusers should be charged with perjury.
*The Court should have its own professional body to investigate abuse accusations.
*Court proceedings should be inquisitorial.
*The Family Law Act should declare that the best interests of the child will be served by maximising the time and involvement each parent is willing and able to contribute in raising their children—unless the Court finds on good grounds that the parent is a danger to the child.
This timely and well-argued book shows how far the Court and family law have strayed from the delivery of justice in divorce settlements and child custody. The outcome is social disarray, loss of respect for the Court, more human misery than necessary, impotent rage, and sometimes suicide among its victims. After 30 years of the Court's operations Hirst is surely right in pressing for reform to establish that balance of legal rights and obligations, and their just enforcement, without which the institutions of a liberal society, including the family, cannot thrive.
Law and Order in Australia
By Don Weatherburn
Sydney, The Federation Press, 2004, 238pp, $37.95
ISBN 1 86287 532 4
Reviewed by Peter Saunders
Don Weatherburn, Director of the NSW Bureau of Crime Statistics and Research, has written a useful though flawed little book summarising what we know about the extent of our crime problem, its causes, and possible solutions.
It turns out that we do not know as much as we should, for crime statistics in Australia are woefully poor. Weatherburn complains that it is impossible to compile a consistent set of crime data for the last 40 years (the ABS only has reliable statistics from 1993, and police records for specific crimes during the 1970s and 1980s are incompatible with the ABS data). He also makes a strong case for more (and better trained) researchers, and for once, this does not look like academic special pleading.
Weatherburn is also irritated that so much public discussion of law and order ignores what little we do know about crime. Harried by the media, politicians commit millions of dollars to programmes they know are unlikely to work, and the police experiment with new strategies for combating crime without analysing what effect they have on crime rates. As an old-school social scientist, Weatherburn believes that research can give us useful and objective factual evidence, and that policymakers should make decisions informed by what the evidence reveals, rather than playing to the gallery.
All this is very refreshing. Equally refreshing is the way the book for the most part steers an impartial and even-handed course through this most complex and politically contentious of social policy areas. Even-handedness can, however, be taken too far, and sometimes Weatherburn leaves the reader straddling two incompatible positions rather than coming down on one side or the other.
For example, the book establishes that there has been a huge increase in serious crime in Australia over the last 30 years. One in 20 households is now broken into every year, and one in 60 has a car stolen. We rank second out of 17 countries surveyed on rates of crime victimisation (Weatherburn notes, ‘Australia is not a safe place’). Yet despite all this, Weatherburn cannot resist the familiar criminologist’s complaint that ‘public opinion’ and commercial radio ‘shock jocks’ are guilty of exaggerating the law and order problem. He concedes that we are ‘right to be very concerned about crime,’ yet he also asserts that, ‘Public concern about crime is way out of kilter with the facts.’
But which is it? Either we face a serious problem or we don’t. The statistics suggest the public and the ‘shock-jocks’ have it about right, and the criminologists who think the media have whipped us into a ‘moral panic’ have it wrong. It would have been helpful had Weatherburn been prepared to make the call.
Much criminal activity involves young males. The book shows that remarkably large numbers of young people get involved in crime of one kind or another for a short time when they are adolescents (23% of NSW secondary school students admit to receiving stolen goods, 15% admit to shoplifting, 9% have been involved in housebreaking, and 7% have been involved in vehicle theft). Most serious offences are, however, committed by a small number of persistent offenders who are often the products of bad parenting, come from low-income and/or welfare dependent families, and have low IQs and poor school records. Much of the book turns on what can be done to stop these young men from inflicting misery on the rest of us.
Weatherburn warns that many different factors contribute to crime, and that some of them are beyond the capacity of any government to control. He confirms that policing is important, but he thinks raising police numbers makes for ‘very expensive crime control’ (US research finds that a 10% increase in police numbers generates a 3% fall in serious crime). He believes that targeting known repeat offenders and cracking down on hotspots makes more sense than recruiting more officers, although he also notes that, ‘Some policing strategies that are known to be effective may require additional police.’ Again, therefore, the book prevaricates, resisting populist calls for more police on the one hand, acknowledging that more police may be necessary on the other.
When it comes to locking up the offenders that the police do manage to catch, Weatherburn is sceptical. He rightly argues that prison will always be a weak deterrent for as long as most offenders go undetected, for they will not be put off by the punishment if they gauge there is little chance of getting caught. But he also notes that the effect of penal policy on crime rates does not operate mainly through deterrence—its main impact comes by taking criminals out of circulation (it is unfortunate, incidentally, that Weatherburn attacks recent CIS publications for suggesting that prison deters criminals when we stated explicitly that it works mainly through incapacitating them).
Incapacitation certainly works. Weatherburn cites research on 267 NSW inmates which estimates they would be committing nearly 30,000 property crimes every year if they were free. But putting more criminals behind bars is expensive. The book suggests that in NSW, a 20% cut in crime would involve an additional $330 million per year in detention costs, as well as requiring more prisons to be built. Weatherburn accepts that ‘some readers might think these costs are worthwhile,’ but he believes the money would be better spent in other ways.
One way he would prefer this money to be spent is in reducing opportunities for crime, and he devotes an interesting chapter to policies like CCTV surveillance, better street lighting, introduction of car immobilisers and better regulation of pawnbrokers (making it harder to dispose of stolen goods).
He also wants more money spent on reducing the likelihood of young people turning to crime, and here he recommends policies like early childhood intervention (to improve parenting in lower class families), more spending on childcare, federally-funded maternity and paternity leave, action on truancy and early school-leaving, more generous welfare spending to reduce poverty, and (disregarding the crushing weight of OECD evidence suggesting they do very little good) expansion of government job creation programmes to tackle joblessness.
Much of this adds up to the familiar social democratic agenda of pursuing greater equality through government spending and income redistribution. Weatherburn thinks that poverty, inequality and unemployment are ‘distal causes’ of crime, and that big government social programmes therefore offer long-term solutions: ‘The federal government has a key role to play in reducing the supply of motivated offenders because of its capacity through the tax and welfare systems to reduce the number of families with dependent children living in poverty.’
This is where the book is at its weakest and most disappointing, for at this point, Weatherburn’s commitment to evidence-based policy deserts him, and political ideology and intellectual orthodoxy takes over. He does admit that his evidence is ‘less than perfect,’ and that his arguments are ‘more speculative,’ but in truth, he ignores a lot of evidence and his speculations are driven by little more than social democratic faith.
If government social programmes offered a solution to crime, crime rates should fall as welfare spending rises. In fact, the reverse is the case. There is a strong positive association between higher welfare spending and higher crime rates in many countries including America, Australia, Britain and New Zealand. Moreover, when the US cut back on welfare in the 1990s, its crime rate fell at an unprecedented rate, yet Weatherburn’s thesis would have predicted it should rise. None of this evidence is discussed in the book.
Weatherburn does note that crime in the USA increased in the 1960s and 70s despite Johnson’s ‘War on Poverty,’ but he suggests American crime rates might have climbed even higher had welfare spending not gone up at that time. Karl Popper would immediately have recognised this as a classic example of an unfalsifiable hypothesis, and given his commitment to evidence-based social science, Weatherburn should have recognised this too. In the event, we are asked to take the claim on trust, for he offers absolutely no evidence to support it.
The unsubstantiated assertion that income redistribution and higher welfare spending can reduce crime is unfortunate, for it invites us to continue with policies that for the last 30 or 40 years have arguably been adding to the problem rather than solving it. In the Aboriginal community, for example, crime is rife (Weatherburn’s data indicate that a quarter of the NSW Aboriginal population appeared in court between 1997 and 2001 charged with a criminal offence), and many indigenous leaders now see a clear link between crime and social breakdown on the one hand, and high levels of welfare dependency on the other. This book would have done a real service had it begun to investigate this link, rather than continuing to deny it.
My other main concern about the book is that Weatherburn assumes the only objective for law and order policy is to reduce the rate of crime. In this view, if a punishment like prison does not reduce crime, it is a waste of money. But as the 19th century French sociologist Emile Durkheim famously argued, punishment does more than deter or prevent crime—it also plays a vital role in reaffirming the common moral rules by which we live. What Durkheim recognised (but what Weatherburn seems not to understand) is that ordinary citizens are emotionally offended by wrong-doers, and it is important that this sense of offence should be acknowledged in public policy. This is why ‘shock-jocks’ find a receptive audience for their law and order campaigns, and why politicians feel they have to respond to public sentiment with new policies that might turn out to be little more than gestures, for the gestures are important in themselves. They affirm the public’s righteous sense of indignation.
Weatherburn never really grasps this point. He thinks that if we only get a small reduction in crime from a hefty increase in law and order spending, the money should be spent on welfare instead. He thinks it is better to spend money on bolts, padlocks, alarms and immobilisers, rather than employing more police or building more prisons, because his calculations suggest that it is more effective if we lock ourselves into our own homes than if we lock burglars up in gaol. But what this cost-benefit approach to crime misses is the affront that those who obey the law feel when crimes are committed against them. We want offenders caught and punished, even if it does little to reduce the incidence of crime.
Weatherburn does recognise at one point: ‘It may sometimes happen that public demands for retribution are so strong they overwhelm any consideration of whether the punishment being demanded is the most cost-effective response to crime.’ But he sees such demands as essentially irrational. They are not based in evidence, and he thinks law and order policy is better determined by ‘experts’ than by an emotional public with their shock-jock media spokespersons. Warning against bending to the public will, he writes: ‘Judges might as well shape their sentencing decisions on the basis of a popular vote or the roar of the crowd.’
Which raises the very interesting question: why not?
The Anglosphere Challenge: Why the English Speaking Nations Will Lead the Way in the Twenty-First Century
By James C. Bennett
Lanham, Md, Rowan & Littlefield, 2004
352pp, US$39.95
ISBN 0742533328
Reviewed by Arthur Chrenkoff
On the morning of September 11, 2001, three hijacked airliners struck the twin towers of the World Trade Center and the Pentagon in the most audacious declaration of hostilities since the attack on Pearl Harbor almost 60 years before. Australian Prime Minister John Howard happened to be on an official visit to Washington that day; Great Britain’s Tony Blair was one of the first leaders to call President George W Bush and offer his country’s support. So was born the Coalition of the Willing, a group of countries that over the next three years would forge ahead in the war on terror and the subsequent grand project to liberate Iraq and, more broadly, ‘drain the Middle Eastern swamp’ that for too long has bred and nurtured the pilots of the ill-fated airliners-turned-battering rams.
It did not take the observers long to notice that the core of the Coalition of the Willing consisted of three English-speaking liberal democracies: the United States, the United Kingdom and Australia. The fact was most famously celebrated by the ‘Three Anglos’ cover of America’s premier conservative magazine ‘National Review’. Suddenly, journalists and pundits world-wide—or at least those wanting to appear to be on the cutting edge of the debate—were forced to take note of the work of American entrepreneur and amateur political philosopher James C Bennett. Bennett has been for years bandying about his theory that the future belongs to the Anglosphere, a loose network of free market democracies sharing the heritage of English language and the Common Law tradition. The aftermath of September 11 made Bennett’s theories sound suddenly relevant.
Soon, and predictably, the Anglosphere has joined the esteemed company of ‘the end of history’ and ‘the clash of civilisations’, having quickly gone from an intellectual novelty to a subject of scorn, ridicule, derision and conspiracy-mongering, while skipping altogether the in-between stage of understanding and rational debate. Some critics saw the concept as another unhealthy example of Anglo triumphalism at best, or barely disguised racism at worst. For others it seemed an ahistorical attempt to revive the British empire with a healthy dose of IT hogwash thrown in for good measure.
Now, James C Bennett himself finally joins the fray with the first book-length exposition of his theories. The Anglosphere Challenge is a multi-faceted work; an apologia and a blueprint for Bennett’s theories, but also, since they have been in the public domain for quite some time already, a much needed correction of many common misunderstandings surrounding the term. Part Gingrichian futurology, part historical journey in the footsteps of Fukuyama (as well as McNeill, Macfarlane, Landes and many others) to discover what makes the Anglophonic civilisation so successful, The Anglosphere Challenge is an ambitious project for all of its 290 pages.
Boiled down to its basics, Bennett’s thesis doesn’t seem particularly controversial, and all its individual elements will have a familiar ring to any reader who has been following major intellectual debates of the last 20 years. Moving from the general to the specific, the argument is as follows: Bennett sees the international political alignment of the future as neither the continuation of the world of nation-states, nor the advent of the vaguely utopian borderless world of dissolved sovereignty and transnational governance. Instead, he foresees the rise of what he terms ‘network commonwealths’:
The network commonwealth would consist of overlapping sets of institutions, alliances, agreements and standards aimed primarily at easing and facilitating the interchange of information and information-related goods and services among political communities.
Network commonwealth is not a nation-state (nor indeed, a superstate), Bennett writes, but a way of communities coming together to find alternative means of fulfilling traditional state functions. To the uninitiated, the European Union might sound like one such ambitious attempt to construct a continent-wide network commonwealth. Not so, or at least not quite, as Bennett says:
‘A network commonwealth [of the future] would resemble the EU in promoting free movement of people, ideas, and capital throughout its internal area. It would seek to promote cooperation in all areas where existing commonalities permit greater cooperation between similar cultures. It would seek, as far as possible, to create a common economic, informational and residency space for the citizens of its member nations. It would differ from the EU in not attempting to dictate the social policies of its members, not attempting to relocate executive agency power in community-wide bodies, and not maintain large cross-community subsidies to help member of governments resist needed restructuring.’
Thus, a network commonwealth emerges not as a megastate or a federation—and not quite an alliance—but more of a loose network of cooperation between states and communities sharing common interests.
How would such networks be created? Bennett, an Information Technology enthusiast, thinks that a necessary ‘self-assembly protocol’ can be supplied by shared cultural affinities: communities which share common values or common heritage will find it easier to coalesce together into network commonwealths, a process which will be further advanced by the explosive growth and penetration of internet and other communication technologies. This is essentially a Huntington Lite argument without all the blood and gore.
The Anglosphere is one international community—arguably the most developed one—out of which a network commonwealth could emerge in the future. According to Bennett,
‘The Anglosphere is more than the sum of all persons who have learned the English language. To be part of the Anglosphere implies the sharing of fundamental customs and values at the core of English-speaking cultures: individualism, rule of law; honouring of covenants; in general, the high-trust characteristics described by Francis Fukuyama… and the emphasis on freedom as political and cultural value.’
As Bennett is at pains to stress, the Anglosphere is not a racial or ethnic concept; one does not have to be a certified Anglo-Saxon in order to sign up. What matters is the commitment to a set of ideas and common culture (Bennett, after Dawkins, calls it a memetic, rather than genetic, identity). Thus, some of the most successful Anglospheric societies, like Australia and the United States are also the most ethnically diverse, and historically have been the most successful at assimilating migrants from all corners of the world to partake in the Australian or the American Dream.
In addition to the Anglosphere Bennett sees many other communities which could eventually build on their cultural and linguistic ties to form their own network commonwealths, including the Francosphere and the Arabian network to name just two (Here Bennett differs from Huntington who sees only seven basic civilisations. For Bennett a ‘civilisation’ is too broad and general a category to usefully work with).
The last aspect of Bennett’s argument is perhaps the most controversial one: just as the 19th century was the British Century and the 20th century the American Century, so will the Anglosphere remain the leading international force throughout the current century, as its very advanced civil society continues to provide vitality and high levels of trust and openness essential for sustaining growth and innovation in the future.
This brief summary does not do justice to The Anglosphere Challenge. There is much more in this book to stimulate a wide-ranging debate, as it boldly charges from distant past into the future, spins around the whole globe, and through numerous disciplines (where else can you find techno-futurist jargon like ‘Political self-assembly protocols: a tool for the Singularity Revolution’ next to a discussion of the origin and influence on the Magna Carta). As Bennett himself admits, ‘I am not presenting this book as a work of scholarly research, but rather in the nature of a connected series of essays suggesting some new perspectives and their consequences,’ which is why the book sometimes feels disjointed and unstructured.
Is The Anglosphere Challenge worth reading? Yes. Will his vision be realised? Certainly, common ties of history, language, culture and tradition facilitate economic and security cooperation, in part by reducing some of the transaction costs. However, while the developments in communication and transportation technology have made it easier for the cultural kin to get together, even if only virtually, they also made it possible to break down barriers between different cultures as well. Thus, Australia might have free trade agreements with the United States and New Zealand, but most of our major trading partners are still in Asia.
Which for many is just as well, since there is a good universalist argument that overemphasis on what unites us with some can all too easily lead to focusing on what makes us different from others. Most observers would agree that replacing the rivalry between traditional nation-states and alliance with rivalry between network commonwealths would not be much of an improvement on the 20th century.
Conversely, one should not underestimate contempt bred by familiarity. For a variety of historical and political reasons, not all birds of a feather flock together, which exposes some of the limitations of the idea of an Anglospheric (or any other) network commonwealth. The members of the Anglosphere might indeed share common heritage, but that should not disguise significant differences both between and within the countries in question. But for the Liberal government being in power in Australia over the recent years, there would only be two, instead of three Anglos, and the shared language and legal tradition did not prevent Canada and New Zealand from largely staying away from the Coalition of the Willing. In fact, these two countries, as well as large sections of the ‘blue America’ seem to feel far greater comity with continental Europe than with other parts of the Anglosphere. This, in essence, is the political limitation of the idea; one that we are unlikely to ever remedy due to Bennett’s insistence on undesirability of any overarching political authority within a network commonwealth. Thus, when all is said and done, a network commonwealth essentially emerges as a glorified free trade area, and not surprisingly ‘The Anglosphere Challenge’, while written after September 11, in many ways reads like a blast from the 1990s past, with its techno-optimism and economic exuberance.
Writes Bennett:
This book started out as a look at what the Internet and subsequent technologies would do to the world economy. It began as an exercise in imagining a ‘borderless world’ and an investigation into ‘the end of nation-state’ and similar themes. However, my research on the issue convinced me that this was not what was happening at all. Yes, there is going to be a borderless economy in the sense that obstacles to flow of capital and technology and goods will continue to diminish. But even though this process will lead to the end of the economic state, it’s not going to be the end of the nation-state, because nations—in the sense of cultures and institutions—will count more than ever in this environment.
Bennett’s book shows us how and why we should get there. Only time will tell if we will, and if we do, if it has been worth it.
Conversations with the Constitution: Not Just a Piece of Paper
By Greg Craven
UNSW Press, Sydney, 2004, $34.95
ISBN 0 86840 439X
Reviewed by Michael Walsh
Is it possible to write a readable book on the Australian constitution? My housemate certainly didn’t think so. When he came across my copy of Conversations with the Constitution on the coffee table, he shot me a disgusted look and remarked, ‘That must be riveting.’ I turned away shamefaced; defending myself almost seemed hopeless. However, my housemate would have been surprised if he turned a few pages of Greg Craven’s latest book. It’s a lively and entertaining read.
Above all else, Conversations is a defence of the Australian Constitution. Craven argues that the Australian Constitution has produced a century of safe, stable, democratic government, and in a world riddled with failed states the success of the Australian Constitution should not be treated lightly. Craven clearly loves the Australian Constitution. It may not have been born from a dashing revolution or contain a fashionable bill of rights, but it does have a rare moral authority stemming from its democratic origins. Moreover, Craven says it is interesting, alive and quirky - the sort of constitution you could imagine having a beer with.
In introducing a mass audience to the Australian Constitution, Craven employs his considerable wit. He is particularly good on the attack, satirically mocking those who inhabit funky shoe shops in Brunswick and attend rallies for a solar-powered Tibet. If nothing else, reading Conversations is a great way to improve your witty insults. Judicial activists are one group that comes under the Craven blowtorch. He likens the way they interpret the constitution to the way Attila the Hun rampaged through Italy. He thinks that some of the ‘rights’ and ‘limitations’ judicial activists have found in the text are logically as spurious as a Confederate bond. So I was surprised to find that Justice Kirby, a relic from the activist Mason High Court, spoke at the Conversations book launch. What could Justice Kirby see in a book that is as alien to his views of the Australian Constitution as Phillip Ruddock is to Amnesty International? Kirby praised Conversations for getting Australian citizens thinking about their constitution. But he was disappointed in the lack of balance. In Justice Kirby’s opinion, there are heresies and outrageous opinions in every chapter. Craven’s skilful rhetoric can be dangerous if taken at face value.
In chapter 2, Craven describes constitutional debate as a war between ‘old constitutionalists’ and ‘new constitutionalists’. Craven is an old constitutionalist. He gives precedence to Parliament, defends federalism, dislikes judicial activism and is suspicious of constitutional change. New constitutionalists, in contrast, are irreverent of tradition and bullish about constitutional change. The distinction between the warring tribes resurfaces in chapters dealing with Federalism, the High Court, the debate over an Australian bill of rights and the possibility of an Australian republic.
Federalism is a key feature of the Australian Constitution. Craven defends it on several levels. He says the States are different and should be governed by locals rather than remote heartless governments. He argues that Federalism ensures that one government cannot exercise total control across Australia, an inherent good in the eyes of liberals like Craven who view unrestrained power with suspicion. And he points out that State governments provide a forum for testing new social and economic policy before it is inflicted on the entire population of Australia.
Traditionally, it has been Labor governments clambering to tear down federalism and put in place a more efficient central government. Labor leaders from Billy Hughes to Gough Whitlam would have liked nothing more than a centralised system which enabled them to implement radical nationwide change. In contrast, the conservative side of politics has generally stood for federalism; not only because it frustrated Labor’s agenda, but also because of the link between federalism and conservative’s preference for balanced power and contained government. When Craven wrote Conversations he listed John Howard as a like-minded old constitutionalist. However, Howard’s fourth term agenda runs against old constitutionalists’ beloved Federalism because it further centralises government, particularly in industrial relations, health and education. Craven is clearly frustrated by Howard’s change of heart, recently writing in The Australian that Howard closely resembles an old leftist social engineer.
The demise of federalism, and with it the states, has been a long process. It began only five years after federation when the Commonwealth exercised its discretionary power to distribute surplus revenue to the states by not distributing any revenue whatsoever. While fiscal castration has been primarily responsible for the decline of the states, the process has been aided by a compliant High Court and a Senate that operates on party lines rather than state lines as originally intended.
Conversations packs in a huge amount of information, but it does so in an engaging and humorous way. While Craven has a strong political bias, he has made the Australian Constitution more accessible and lifted the standard of debate about the structure of Australian government.
Why Globalisation Works
By Martin Wolf
Yale University Press, New Haven, CT
2004 (hb), 2005 (pb) US$18
ISBN 0300107773
Reviewed by Malcolm Roberts
Groan. Another dense book on globalisation to add to already crammed shelves. With a surfeit of books attacking or applauding globalisation, should we bother reading Martin Wolf’s Why Globalisation Works?
The answer is yes. Martin Wolf has not written an original book. He does not unveil groundbreaking research or advance a startling new synthesis. But he does offer a novel approach to familiar questions. For a passionate free market liberal, Wolf takes the unusual step of writing a book focused on the contrary case.
Why Globalisation Works begins with a conventional explanation of how market economies sustain democratic and prosperous societies. The arguments are well known but not well understood. In any event, Wolf knows that explaining basic concepts such as comparative advantage is not sufficient to persuade readers. Sadly, masterful expositions of economic theory, supported by ample data, can leave readers cold. The striking fact for many people is not the incremental progress made in recent decades but the continuing tragedy of more than a billion people living in poverty. For many people, an analysis which accepts that this situation will only gradually change seems complacent or callous.
No one desires to be seen as so heartless. Some liberals over-compensate by dwelling on those instances where market reforms have failed (such as premature liberalisation of capital markets in developing countries). This clears them of the charge of being ‘market fundamentalists’. Others actively seek the approval of their critics. The World Bank opens its doors to non-governmental organisations. Jeffery Sachs invites Bono to write the preface to his latest book. Martin Wolf does not succumb to this pressure. He makes a robust case for globalisation and then, for good measure, dissects what he sees as the fuzzy reasoning and dangerous naivety of the anti-globalisers.
While criticisms of globalisation take many forms, the core proposition is simple. In a global free market, states must discard anything which inhibits their capacity to compete. The global market is a zero-sum game which cannot tolerate indulgences such as social welfare programmes, environmental protection and civil rights. Liberals will immediately recognise the flaws in this caricature of markets. For many other people, this ‘race to the bottom’ argument is intuitively right.
Opting out of the global market has a natural appeal to industries facing strong import competition. Losing the economic battle, these interests turn to the political panacea of protectionism. Often concentrated in regions, uncompetitive industries can tap public anxieties and wield disproportionate political power. Wolf cites the familiar examples of European and Japanese farmers.
The consolation is that protectionism has a tendency to be self-defeating. Public subsidies and tariffs rarely make industries competitive. Output and employment in decaying ‘rustbelt’ industries usually continues to fall despite rising levels of assistance. As costs rise, the political support for protectionism is strained. Wolf sees these producer interests as powerful, and having a disastrous impact on developing countries, but also as gradually waning. The self-interest of such industries in opposing open markets is simply too obvious to inspire many people who do not benefit directly.
The greater danger to globalisation stems from the evangelism of activists. Anti-globalisation is being propelled by single-issue non-government organisations who appeal to the consciences of comfortable people in rich countries. Focusing on various injustices, these groups usually explain these problems as inescapable consequences of the laws of the market. Activists aspire to ‘replace capitalism with something nicer’. Wolf devotes his attention to the arguments advanced by such small but influential groups. Unlike rustbelt protectionists, these groups make a virtue of forgoing economic benefits. It is on this high moral ground that the battle for hearts and minds is being fought.
In five well argued and researched chapters, Wolf demolishes many of the myths cherished by activists. Across a range of indicators, Wolf shows that the problem is in fact too little globalisation. Developing countries are not being impoverished by foreign investors. Regrettably, while capital may flow more or less freely, it tends to flow between rich countries. In 1999, 74% of foreign direct investment went to high income countries. Africa received just 1%. States have not shrunk. A survey of most OECD members shows that, in all but one case, the public sector expanded from 1980 to 1996. The best available research indicates that social spending (and taxation) in developed countries continues to rise. Many countries, including Australia, show that it is possible to have high taxes, high public spending and high regulatory standards without jeopardising international competitiveness or discouraging foreign investment.
On other points, Wolf and the anti-globalisers clash because of different standards. Anti-globalisers judge globalisation a failure because the gap between rich and poor is widening. Wolf judges globalisation to be more than a partial success because incomes in even poor countries are rising. Activists stress relative inequality; Wolf welcomes rising life expectancies and living standards for a growing majority of the world’s population. Activists measure progress against the quality of life enjoyed by the privileged few in rich countries. They prescribe policies which seek to transpose these conditions to developing countries. Wolf points out that the consequences of such good intentions are usually to stifle economic development.
Martin Wolf has written an invaluable book exposing the weaknesses of anti-globalisation rhetoric. He shows that compassion for people struggling to escape poverty in developing countries requires clear thinking about policy options rather than ‘wrong but romantic’ sentiments. At times, such as when summarising swathes of other people’s research, Why Globalisation Works may be ponderous but it is consistently well-argued and informed.
Us and Them: Anti-Elitism in Australia
Edited by Marian Sawer and Barry Hindess,
Perth, API Network, 2004
286pp. $34.95
ISBN 1920845097
Reviewed by Rafe Champion
The purpose of Us and Them, an academic edited collection, is to expose and criticise the conservative, neoliberal ‘big end of town’ elites who have mobilised populist rhetoric to discredit the left wing ‘new class’ elites and their programmes.
John Higley and Jan Pakulski write on anti-elitism as a political strategy; Marian Sawer reviews the record on populism and public choice in Australia and Canada; Tim Dymond sketches a history of the new class concept in Australia; Damien Cahill describes new-class discourse and construction of the left wing elites; Steve Mickler addresses the ‘anti-elitists’ on talkback radio; Carol Johnson notes the international influences. Sean Scalmer and Murray Goot describe the contribution of News Limited; Shaun Wilson and Trevor Breusch pursue the linkages between various groups and some of the contested issues in public policy; Michael Pusey explains why we feel let down by economic reform; James Walter argues that anti-elitism is driven by the need to defend an unpopular economic reform program; and Barry Hindess claims that there is a neoliberal push to undermine the traditional humanistic and civilising function of the universities.
The book arose from a colloquium of the Academy of the Social Sciences in Australia in November 2002. With financial support from the Academy and also the National Institute for Social Sciences and Law the papers were extensively discussed at a workshop in July 2003. The editors acknowledge that ‘This workshop provided an invaluable opportunity to exchange ideas across a wide range of social science disciplines’.
By the usual academic standards this is a reasonably presentable product. It includes a nice mix of history of ideas, international comparisons and local evidence. But a caveat has to be inserted, along the lines that something has gone seriously wrong in the profession so that ‘the usual academic standards’ are not good enough. This is a heavyweight production because most of the contributors are of professorial or senior research associate rank. However practically every chapter has the tone of a party political pamphlet, with the implication that anyone who dissents from their negative view of economic rationalism, the classical liberal agenda and their political opponents, is uninformed, or acting in bad faith or pursuing some sinister ideological agenda.
This bias results in unsustainable claims. For example Damien Cahill writes that ‘…the Liberal-National coalition government, in demonising large sections of the population, such as trade unions, welfare recipients, Indigenous Australians and migrants, has pursued a two-nations hegemonic strategy’. Steve Mickler refers to ‘sectionally socially oppressed groups, such as women, gays, and Indigenous and ethnic minorities…genuine candidates for emancipation’.
Apparently it is beyond the ken of these ideological warriors that neoliberals and conservatives can be perfectly well disposed towards trade unionists, people who are unable to work, Indigenous Australians, migrants, women and gays, not to mention the environment, while at the same time being concerned about the abuse of trade union power, the problem of poverty traps in the welfare system, the failure of Indigenous policy, and without seeing the need for social engineering or aggressive affirmative action to assist women, gays and ethnic minorities.
One could take the book at face value and examine the various chapters to check out the methodology, the evidence and the detailed claims and conclusions that are drawn. This will be pursued briefly with one chapter. It is more interesting to speculate how is has become possible for what is effectively an extended political pamphlet to pass as an addition to scholarship, with the blessing of the Academy of Social Sciences and the National Institute for Social Sciences and Law.
Three factors appear to be at work: first, the lamentable standard of scholarship in much of the social sciences and humanities; second, the politicisation of large tracts of the social sciences and humanities; third, a shift in the progressive political programme from economics and equality to a wider range of issues.
The first factor is an international phenomenon which was dissected in some detail by Jacques Barzun in the 1950s, by C Wright Mills in The Sociological Imagination (1963) and by Stanislav Andreski in Social Sciences as Sorcery (1972). Their critiques made no noticeable difference. It appears that people read them to enjoy the dissection of rival schools without paying attention to the chapters addressed to themselves.
The second factor, politicisation, is also international and it occurred in Australia between about 1965 and 1975. It occurred so long ago that people need to be over 50 years of age to have any recollection of a different state of affairs. It seems that the nature and significance of this change has not been explored and documented in any detail because nobody in the profession has anything to gain by doing so.
The third factor was identified by Andrew Norton, writing in the weblog Catallaxy. He noted a shift in the left wing social reform program from a class-based critique of capitalism to a suite of progressive issues. There is a new set of theoretical critiques-- radical feminist, queer, postcolonial, Deep Green etc. Norton suggested that ‘from the 1960s on [the left] increasingly defined themselves against a majority who held the wrong attitudes. Instead of attacking the rich, they attacked ‘society’. Consequently moral snobbery became an important element of left culture, and this is apparent in most of the statements that are made with regard to current affairs.
The contribution from Barry Hindess exemplifies the mix of moral snobbery and erroneous analysis that pervades the book. He argues that the primary function of the modern university was to produce people who believe that ‘at least in certain respects, their capacities for political and ethical reflection are superior to those of most of their fellows’. That is to say, to produce people with left-progressive tendencies.
However the neoliberals see this as a cover for the self-interest of the progressives and so they want the universities to abandon the aim of making people more civilised and instead to focus on training in identifiable skills related to success in the commercial marketplace. This is supposed to be the rationale for the university reforms in recent times. A more realistic account would ascribe these to a somewhat schizophrenic mix of two objectives, one being financial viability and the other being increased efficiency and accountability. The first is pursued by HECS and cognate reforms; the second is dogged by absurd expectations of the gains to be made by bureaucratic interference with the work of academics.
In conclusion, some chapters convey useful background and some contemporary information but the book as a whole cannot be recommended for its insights or its analysis. Instead, it represents a phenomenon that calls for investigation in its own right.
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