Home > Corporation > The Corporation and Australia’s Human Rights Debate

The Corporation and Australia’s Human Rights Debate

The human rights debate in Australia is deeply flawed. The terms of the debate have been set by the well known report of the Human Rights Consultation Committee, chaired by Father Frank Brennan. The Federal Government has yet to formally respond to the report, especially with respect to its key finding. The report recommended that a statutory human rights charter be adopted to weigh the human rights implications of government acts.

The debate is flawed because the debate concerns itself with the rights of the individual with respect to the state only. This has been quite deliberate. The Brennan proposals, let us call them however unfairly, expressly excluded social and economic rights, even though such rights are a critical part of the United Nations Human Rights Convention. Brennan has acknowledged that such rights should be promoted but “nonetheless in light of advice received from the Solicitor-General, we don’t think the courts have a role to play in the progressive realisation of these rights”.

So on one side of this limited debate we have those who argue that recent high profile cases, especially in relation to counter terrorism, demonstrate the limitations of the “rights revolution” in Australia. A more robust system of protections is needed to protect the individual from capricious legislation that seeks to restrict liberty.

On the other hand, conservatives argue that human rights is being used to cloak an agenda being pursued by Australia’s cultural-intellectual elite to advance their preferred ideological whims. It is understood that these elites lack public support, so they naturally seek to enshrine their policy preferences by bypassing the ballot box. The purpose and affect is to subvert democracy. On the latter point it is argued that a human rights act will hand too much power to the judiciary, thus undermining parliament.

In focusing on the state a very important and powerful collectivist institution is being neglected, namely the corporation. Large corporations are able to violate the human rights of the individual just as much as the state, and for pretty much the same reasons.

Corporations have overwhelming resources and power. The asymmetry between the resources that the corporation is able to command and that of the individual is vast. Moreover, unlike the state the corporation is an unaccountable tyranny. It is a top-down hierarchical institution which functions very much akin to the fascist ideal, as pointed out in a classic study by the political economist Robert Brady. It is also concerned with little else other than profit, and if trampling over the rights of the individual, both within and without the organisation, advances profit maximisation then so be it.

In our legal system corporations are recognised as being persons, this is known as the organic conception of the corporation. The recent judgement by a reactionary, not conservative, US Supreme Court on campaign finance legislation has brought this largely unrecognised facet of Western society to relief.

The political philosopher, Ronald Dworkin, who should have recognised this long ago, stated that the “nerve of the argument” used by the Court, “that corporations must be treated like real people under the First Amendment” is “preposterous” because “corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.”

Notice that Dworkin is referring to one of the bill of rights to the US constitution.

The organic view of the corporation was enacted through late 19th century judicial activism, not primarily by way of legislation. The underlying philosophical conception used to justify this position, neohegelianism, does not place ontological primacy upon the individual. Furthermore, these ideas are at variance with other staples of enlightenment thought, such as rationalism. They are also quite popular within the academic left.

The primacy that has been accorded the corporation in society is founded upon a thorough rejection of classical liberal ideas. The notion that the pro corporate policies of the past 30 odd years, known as “neoliberalism”, somehow have something to do with classical liberalism is a fiction just about shared by all.

Governments can be defeated at election time. Mechanisms exist to advance the public interest in the policy making process. That these mechanism are meagre does not obscure their existence. On the other hand corporations are unaccountable in the absence of regulations. Yet deregulation has been central to neoliberal policy making. We now even have, with Lindsay Tanner, the absurdity of a professly socialist minister for deregulation.

The controversial statements on the nanny state by Formula One driver Mark Webber are relevant here. We have seen increasing regulation and red tape being extended over the individual. Yet at the same we have witnessed progressive corporate deregulation. It follows that ours is not a society that places the rights and interests of the individual at its core. Nothing can be allowed to trump the rights of the corporation.

One can observe this in many a court case, with listings such as, say, Joe Bloggs vs Acme Corporation or such. The title itself implies neutrality. Yet we have two competing rights systems. On the one hand we have the right of the individual. On the other we have the right of the corporation to pursue profit. We also have the asymmetry of power.

It is improper to suppose that the corporation be treated as a person, with rights equal to that of the individual, nor that the right of the corporation to pursue a profit is somehow on a par with the right of the individual. The rights of the individual outweigh the rights of the corporation. The corporation should have rights, if any, not for itself but to the extent that it contributes to the social good, just as liberal theory recognises with respect to the state.

But what is called “liberalism” today mostly concerns itself with ensuring that corporations can do as they please.

Corporate hegemony has been allowed to proceed because of the tight linkages between corporate power and the state. Corporations have privileged access to policy makers and are able to use a variety of techniques, owing to an asymmetry of power relative to the individual, to ensure that their interests are “peculiarly attended to”, as Adam Smith had it, in legislation.

The individual does not enjoy such privileged access. This leads to a rights asymmetry between the individual and the corporation. The individual still has the power of the ballot box. However, this occurs in a money driven political system and where corporations control the media. The result is that we have a managed political system that is largely in tune with corporate power.

If opinion does not cater to advertisers then it won’t become a part of public discourse, absent publicly funded media. Surely the American philosopher, John Dewey, was on to something when he pointed out, as corporations were being granted the rights of persons, “politics is the shadow cast on society by big business.”

Given this asymmetry it is necessary that some form of enshrined human rights protections exists to check the power of corporations to subvert our democracy in ways detrimental to the rights of the individual. In fact this problem is deep seated given the provisions on commerce in the Australian constitution, doubtless deliberately framed to protect the then emerging corporate shadow over society.

By far on any given day across the length and breath of Australia the rights of living and breathing human beings are being infringed more by corporations than they are by the state.

Any human rights act or other similar mechanism that purposefully neglects corporate dominance with respect to the individual is extremely limited, indeed highly flawed. So we have two elites engaged in debate. One cultural-intellectual based. The other economically based.

The people of Australia, whose rights and interests should be at the forefront, are neither here nor there. They remain voiceless although both elites claim to know their sores. If the Liberal Party were truly a party of liberalism and if the Labor Party were truly a party of the working class then both would seek to advance the rights of the individual with respect to the corporation.

That both place greater priority on tending to the needs of big business tells us a great deal about both the theory and practise of Australian democracy.

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