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(Image by liam.jon_d under CC BY SA 2.0).

Asher Moses reports that “The Government's plan to introduce mandatory internet censorship has effectively been scuttled, following an independent senator's decision to join the Greens and Opposition in blocking any legislation required to get the scheme started.”

This news has set the blogosphere and twitter alight with celebration. Unfortunately, that may all be a bit premature.

While it is true that a mandatory filtering proposal is likely to require legislation to implement (especially without the support of the Internet Industry Association and a voluntary code of conduct), it is not clear that any future legislation is dead in the water just yet.

The current makeup of the Senate requires either the support of the coalition or the support of all seven minor party and independent senators. Scott Ludlam, the Greens' spokesperson for communications, had already made it clear that the Greens will not support mandatory filtering. The Coalition has indicated that it has 'grave reservations' about Labor's mandatory filtering plan, with Senator Minchin releasing an op-ed criticising the plan as insulting to parents.

This leaves two other senators, Nick Xenophon and Steve Fielding. Fielding, representing Family First, has stated that he would support a mandatory filter, and would like to see its scope increased. Xenophon is now said to have 'withdrawn all support' for the plan, saying “the more evidence that's come out, the more questions there are on this”.

So far, this all sounds like pretty good news for opponents of the mandatory filter. However, the process is not over yet. As several commentators have already noted, the fate of any proposed legislation is still unclear.

It has only been a short time since we saw Senator Xenophon support the Government's stimulus package in exchange for an agreement to fast-track $900 million for water buy-backs in the Murray-Darling Basin. There is no guarantee (apart from a budget deficit) that similar deals will not be on the table in the future.

There is also no guarantee that Liberal or National Senators will not cross the floor in support of Labor's filtering scheme. A notable feature of Howard's last term was the the power of the small number of Coalition Senators who were prepared to cross the floor and vote with Labor on certain policies.

Finally, while on the subject of Howard, we have to remember that we will have a half Senate election in the next 18 to 26 months. There is a distinct possibility that Rudd, like Howard, will consolidate his position and gain a double majority by winning a few extra seats in the upper house. If this happens, the Government may not need the support of the cross-benchers to introduce mandatory filtering.

Until there is an indication that Conroy and the Labor party have dropped their ill-thought out proposal for mandatory internet filtering, there is still much work to be done.

I am in the process of selecting a theoretical model on which to base my normative analysis. Below, I explain my preliminary attraction to Radin's construction of partial inalienability and the pragmatic method of resolving tensions between conflicting interests. As always, comments are greatly appreciated.

Thesis: in choosing whether to apply any law in a virtual context, we ought sometimes to put aside a general law rule in favour of internal norms.

The project of this research is to provide a mechanism to assist in identifying conflicting and hidden interests in virtual communities, and to develop a framework for reconciling those interests in law. The first goal is to be achieved through a critical examination of the expectations of actors in virtual communities – the participants, the platform provider, the broader public, and the state. The second goal, building a normative framework, will depend upon a solid pragmatic reconstruction of the conflicting interests.

There is no simple mechanical way for states to make a decision about which interests should prevail in any particular circumstance. These decisions are always political decisions. The aim of this model, then, is to provide a framework to make these decisions in full awareness of their consequences. The normative basis that will be used for preferring one interest over any other will be the overriding presumption that we ought to choose the path which most promotes “our best current understanding of the concept of human flourishing.”¹⁾

After we have identified the internal norms of a virtual community, the biggest question is whether to uphold those norms which conflict with general law principles. In determining this question, we must consider which of these principles are modifiable and which are not – which basic entitlements are alienable and which entitlements may not be transferred. This analysis, however, leads us to a false dichotomy – it is more appropriate to consider these principles along a spectrum of alienability, where some entitlements may be given away or sold in certain circumstances but not others. Margaret Jane Radin's theory of partial market-inalienability provides a model of this spectrum, and provides some justifications for preferring a degree of alienability or inalienability based upon the interests of personhood.

A market-based analysis is appropriate because it addresses the concerns which are now emerging with large-scale virtual communities that are created as commercial ventures but which enable many aspects of personal life – including, but not limited to, personal relationships, personal identification, personal property, speech and communication. A key concern in these cases is what impact the commodification of these interests has on the personhood of the participants. A framework of partial inalienability provides the means for evaluating these tensions and partially protecting some personality interests from commodification, while recognising that the market is currently best positioned to provide the virtual communities upon which those personality interests depend.

The spectrum of market-alienability ranges from complete market-inalienability to complete commodification. Some examples of market-inalienable interests include freedom, body parts, and children – one is not allowed to sell any of these in any circumstances, although they are not strictly inalienable in that they can each be given away. On the other hand, goods which are wholly commodified are, in the eyes of the law, completely substitutable for one another and for their monetary value. In between these two extremes, we place limits on the alienation of interests which are only partly inalienable. For instance, labour is only partially commodified, as we place limits on the minimum wage and the ability of employers to terminate employment contracts.²⁾ In another sense, we place limits on the mechanics of transfers – imposing, for example, a requirement that transfers of real property be in writing.

In addition, there are interests which are fully inalienable – for example, the law will not uphold a person's right to consent to grievous bodily harm or murder, whether for a fee or not (although, in the context of euthanasia, this becomes a partial inalienability, where we can envisage scenarios where it may be permitted to consent to what would otherwise be an unlawful killing).

The crucial insight, for our purposes, is that a spectrum of alienability allows us to place limits on the manner in which certain entitlements may be given away or sold which are appropriate to the circumstances. We have certain limits built in to the law as it currently stands – conceptions of consent, consideration, acquiescence, waiver, reasonableness – which act to restrain the alienation of entitlements. A model with a spectrum of inalienability allows us to know when these limiting concepts should be interpreted strictly, and when we should deal with them more summarily. For example, this means that when we are considering whether a participant has consented to potential harassment or assault, we may hold a much higher standard of consent than when we are considering whether a person has consented to the 'theft' of a piece of virtual property within the rules of a game. This model shows that more value we place on the importance of insulating the interest from commodification, the greater the limits we can justifiably place upon the alienation of that interest. In accordance with this model, the riskier we determine a transfer is, the more caution we should exercise before finding that the transfer has, in fact, occurred.

The model also provides a scheme for identifying where the protections given by existing law do not suffice. Various concepts of consent can be used to provide adequate limits in many civil matters – disputes centred in contract, tort, and many statutory entitlements can be resolved by determining whether the interest has been transferred according to the norms of the virtual community. Greater difficulty arises where we determine that a certain interest should be protected, to some extent, from commodification, but there is no direct mechanism in the existing law to effect that protection. For example, we may agree on the partial inalienability of interests of free speech or due process, but while these rights may be protected to some extent against the state, they are not inalienable against private actors. If we determine that our conception of human flourishing requires some recognition of constitutional rights against private actors, the model we develop can be used to identify where these interests are not sufficiently protected from commodification. Once identified, a gap between our conception of inalienability and the protection we afford the interest will justify a change in the law.

This model does not aim provide a comprehensive empirical framework; the evaluation of the degree to which any given interest should be protected from commodification is not one which can be arrived at in isolation from a broader social discourse. Rather, the goal of this project is to provide the tools to enable this social discourse. The resolution of conflicting interests must be a continuing process, a pragmatic evaluation of what is possible and what is the best method to proceed given the current state of society. By exposing hidden interests and proposing a method of resolution which is dependent on our social goals, this project aims to provide a conceptualisation of how we can progress, rather than an imperative on how we must.

There's one week to go before the election. I just want to make two points:

It is pure arrogance for a government, any government, to believe it has all the answers and everything right the first time. We need a Senate which is able to review legislation and come to common sense decisions.

A working democracy needs real debate, not simple votes along party lines.

Andrew Bartlett has worked tirelessly for the last ten years to bring a voice of reason to the Senate. The Democrats have consistently been involved in the Senate Committees, where the real day-to-day work gets done. By comparison, the Democrats senators have been active permanent members of 21 different Committees, while the Greens have been active permanent members of only 2.

We need an independent voice in the Senate, but we do not need a hostile Senate. Andrew Bartlett has demonstrated over ten years a commitment to the legislative process and true democracy. He has been prepared to reach sensible compromises to make better laws, rather than simply blocking or not participating in the deliberative process.

The vote next week is much closer than the news would have you believe, and Queenslanders can't afford to lose Senator Bartlett's voice of reason in the upper house. Whichever way you vote in the lower house, please vote to re-elect Senator Andrew Bartlett.

In a recent vitriolic editorial, Philip Ruddock tells us that “Bills of rights do not protect freedoms”.

Regardless of whether we think an articulated Bill of Rights would be desirable, this piece is an overt attack on the independence and ability of our judiciary.

Ruddock argues that:

Bills of rights do not protect essential freedoms – all they do is present the very real risk of having judges imposing personal opinions as law, leaving everyone to guess about what the law might be.

This is where we start getting confused. Ruddock is still under the impression that law is neutral and value-free. In fact, what he's saying here, is that we don't want a bill of rights because we want judges who read the law very literally, and don't do nasty unexpected things like recognise native title or strike down workplace relations statutes.

Ruddock gives a number of Canadian and UK examples of shocking judicial activism, including:

• deciding that “all asylum seekers are entitled to an oral hearing”;

• recognising gay marriage;

• mandating remand for prisoners awaiting trial for over eight months;

• recognising that tobacco advertising is speech;

• police providing food (admittedly, KFC) and cigarettes to a criminal suspect;

• placing limitations on the ability of landlords to evict tenants who are behind in their rent payments, recognising the interest that tenants have in their homes.

The common law has always been concerned with developing legal principles to protect the interests of citizens. Judges do an excellent job of making rules where the legislature hasn't, and have a long history of protecting the people from the worst excesses of both the legislature and the executive. The examples used by Mr Ruddock above are examples of the common law at work. One of the dangers of popular representative democracy is that the rights of minorities are often overlooked. We depend on the judiciary to have the power to stand up for the rights of minorities, and to be able to place important checks on the exercise of legislative and executive power.

Australia has a record of having a strong independent judiciary, but this is something that Mr Ruddock has failed to uphold. One of the Attorney-General's functions has historically been to protect the integrity of the judiciary. Australian judges are reluctant to defend themselves in political contexts. In recent years, however, they have lost the support of the Government. The High Court and the Federal Court have been exposed to overt and often outrageous criticism for 'judicial activism'.

This is another facet of a systematic attack on the judiciary from a government which is terrified of having its policies and actions scrutinised. From immigration to copyright to industrial relations to prisoners' right to vote, the Howard Government has complained about the power of the courts to regulate and limit their power.

The real threat to democracy is not judicial intervention. To claim that a judge who takes a literal and conservative approach to the text of the law is not acting politically is mere legal fetishism.

The real threat to democracy here is the sustained attack on judicial independence that we have witnessed from a government which refuses to have its policies reviewed, either by the legislature before they become law, or by the judiciary afterwards.