A crash-course in Australian Constitutional Freedoms

26 10 2009

So many exchanges in the past have involved someone telling me I should shut up and be thankful for the freedoms provided in this country that I think it’s time to take a quick look at the basics to see just how thankful I should be.

  • There is no right to basic human equality

Human Rights were deliberately left out of the Australian Constitution because the draftees sought discrimination. British Nationalism and racism were the dominant attitudes at the time of drafting the Australian Constitution.  The draftees of the Constitution did not want to entrench Human rights into the Australian Constitution because it would prohibit them from effectively discriminating against minorities they disagreed with and would prevent racial purity.  As well as the clear intent to disregard and decimate Indigenous Australians, the draftees also sought to discriminate against Chinese and Pacific migrant workers from entering into Australian shores.

  • Australia has no right to freedom of speech

Australian’s have the implied right to free speech only in regards to political communication within the Australian Constitution.  It only exists as something absolutely necessary to allow the Australian government to function as a democracy, but even still, the implied freedom is strictly limited and may be rebutted in application.  The freedom has been limited, to include those communications that will influence an individual’s choice at elections.  In short, the use of the freedom is tenuous at best; you are only offered limited protection from it.  Where the legislation unreasonably burdens the freedom, it will be struck down.   Where a political communication becomes slanderous and the one making the communication has not taken reasonable steps to verify the content, the defence of political communication (encapsulated as Qualified Privilege in defamation law), will not be available.  The freedom will not work against private individuals.

In fact, attacking the validity of the Constitution may even amount to Sedition (which is possible given that the legal reasoning for the validity of the Australian Constitution is not that it was accepted by referendum, but that it was passed as an act by the British Imperial Parliament, evidenced by Covering Clause 5).  Artists and writers may be subject to charges of Sedition where their work deliberately or accidentally leads to seditious action.

To emphasise just how limited political communication may be, in the past it has been an offence to instruct voters to fill out a ballot in a manner not preferred by the Australian Electoral Commission.

  • There is no separation of church and state enshrined in the Australian Constitution

Australia has no Separation of Church and State.  The Australian government is only prevented from ‘establishing’ a national religion by s 116 of the Constitution that limits the Commonwealth’s legislative powers.  State governments, however, are perfectly capable of ‘establishing’ a religion.  What Australia has is a policy of neutrality in regards to the treatment of religious practitioners.  The Commonwealth Government cannot unduly interfere with your right to practice a particular religion and it cannot favour one above another, although a little discrimination against all religions is tolerated.

  • The indefinite detention of stateless persons is lawful

Thanks to the wisdom of the High Court ruling in Al-Kateb v Godwin, the Commonwealth government is perfectly able to imprison a stateless person indefinitely i.e lock them up for the rest of their lives.

  • There is no right to freedom of association

It is thought that the right to freedom of association may exist in tandem with the implied right to political communication, as a necessity to facilitate that communication.  However, such a right has not been extended by the High Court.  Freedom of association has been enshrined in legislation in various acts at State and Commonwealth level, such as in the ability to strike in areas relating to Industrial Relations.  But even these are limited, while State and Federal Governments have often attacked freedom of association which may be highlighted in the legislation targeting Bikie organisations around the country by attacking their freedom of association.  The South Australian Act, which has been declared partially invalid by the South Australian Supreme Court had the effect of criminalising association with an individual belonging to an ‘outlawed’ organisation more than 6 times in a year, although the legislation expressly prevented it from being applied to political organisations and contained exceptions for family members.

Yes, Australia does have express rights within the constitution, trial by jury and right to a fair trial being two of the most prominent.  It is even said that many rights and freedoms are protected better through legislation, and some are, to be sure.  However, what needs to be remember is that the Australian Constitution is light of the ‘biggies’, those rights and freedoms we tend to refer to when talking about how great our country is.  Additionally, it is a fundamental legal principle that whatever the parliament legislate on, it can repeal, meaning that even if parliament does provide us with rights, it is well within its power to remove those rights if needed.

In conclusion, you can forgive me for not being as ‘thankful’ as some would like.





Reality Check on the Refugee Debates

25 10 2009

Xenophobia and Nationalist sabre rattling take up most of the debate about refugees.  All to often these people, who for whatever reason have decided to uproot and leave their homes for greener pastures, are portrayed as sub-human, without the appropriate paperwork, they have no soul.  Every Australian should be aware at the outrage and shock horror our most patriotic citizens have felt at the recent arrivals of boat people, the positions our politicians are taking, the cries against this horrible crime made by mostly Conservative, wealthy members of the community and the shear amount of rhetoric being used to score a few political points.

About a week ago I was with some friends and a few others.  People were talking and the subject of refugees came up.  I couldn’t believe my ears as I listened to these others talk of refugees as if they were sub-human.  The conversation had quickly become polarised between two positions; a Conservative and a Liberal.  The Conservative started smiling while announcing to the rest of the group that these refugees should all just be turned back in their boats.  I asked why, and he happily explained that the more we let in, the more our lives would become, ‘shit’.  I wanted to explore this thought further, but I could already guess the answer, ‘we only have so many resources and so much space, not to mention that these refugees will all, immediately, start taking Centrelink cheques’.  In other words, ‘my million dollar house in an exclusive suburb will be at risk if we allow too many to enter and they’ll live on welfare’ — which was surprising coming from an Italian whose own ethnicity faced the same discriminatory responses when they began arriving in this country.  I didn’t even know where to begin to tackle this absurdity that is just one step away from ‘they’re destroying our nation’s identity!’  It more or less relied on at least two basic assumptions; refugees are here to mooch and they have nothing to offer society. Never mind that the forces which make a person uproot and risk life and limb to relocate themselves and their families somewhere else means that they want to work because they want to live.  They are leaving their homes because it was so bad that they can no longer live as they wish.  Refugees, at least the ones I’ve had the pleasure of meeting, have never wanted to live off welfare, precisely because they want to live.  And again, all this makes me wonder about whether or not the same criticisms would be levelled against a large number of white refugees.  Would they be welcomed with open arms, or would they be round up and sent back home?

Then there was the Liberal, who otherwise lived in a fantasy world.  Granted, she took a position defending the refugees against the Conservative, but it was the manner in which she did so; she argued that the Australian economy was big enough to allow anyone in.  In short, she made such a weak argument against the Conservative that she was shot down in seconds and made it impossible for the Anarchist in the room to point out not only the intrinsic racism in the arguments of the Conservative but also the particularly arrogant assumption underlying all calls for increased, ‘hard-line’ border security that the world will get up and move to Australia if we just open the borders.  After all, people can’t resist coming to Australia even when there’s no reason to ‘begin again’ in their own country — and it should be well known that the energy and time needed to begin life over again, from nothing, is huge.  It’s a huge commitment but that only becomes absolutely necessary when your world collapses around you and prevents you from providing that better world for your partner and your children or your Self.

And so I woke up this morning, ate my cereal, started making myself coffee and turned on the TV. The glow bathed the living room and the familiar breakfast TV voices echoed in my ears. The presenters are interviewing a 60 Minutes reporter on a piece that will be aired tonight regarding refugees and they all seem to be talking, in depth about the business operations of those that bring the ‘boat people’ to our shores.

The Reporter was smiling and talking while the presenters asked him questions.  In short, he pointed out that the ‘boat people’ are ‘genuine’ refugees and he talked about those that bring the refugees to Australian shores.  He explained that these were mostly fishermen who found they could make a better profit by taking people to Australia instead of fishing.  It was pointed out that these people do not expect or even want to get to Australia; it is too dangerous.  They hope to be picked up by the Australian border guards so the people they are transporting will be taken to Christmas Island, they will be given a decent meal, kept warm and then given a plane ride home.  Are these people the evil monster’s that Kevin Rudd called them back a few months ago?  Are they profiting of human misery?  Sure, if you look at it from the perspective of, ‘Poor refugees, but they should wait in line while their world collapses around them instead of being goaded into doing something stupid be evil monsters’.  But this perspective doesn’t quite sit well with reality.  People want to get out and they want to get out now.  For whatever reason, they are willing to take the risk of coming by boat to Australia because they need to leave.  The ‘evil monster’ they turn to is a fisherman, just trying to make a living meanwhile the people, those poor refugees, are able to avoid much of the bureaucracy that may endanger their lives.  What these refugees are doing is something courageous and what the people who take them are doing is something heroic.

Then there is the fact that most people miss.  While crying ‘poor exploited boat person refugee who should have waited in line’ they ignore the fact that most of Australia’s refugees arrive by plane.  I would even go so far as to hazard the assertion that all those who treat ‘boat people’ as subhuman (evidenced in the very titled afforded them), should really think twice about their position on the basis that it may, one day, come back to haunt them.  After all, what happens if the lifestyle enjoyed in most of Australia suddenly goes to hell and many Australians look to escape?  Will they want to wait in line?  Will the rest of the world accept them or turn them back?

Borders and Border Protection are just codewords for xenophobia and do nothing but increase human suffering.  The more people call out for ‘regulation’ and ‘tougher laws’ to ‘combat’ the arrival of ‘boat people’, we will be helping to increase human suffering and misery.

EDIT:  Less than five minutes after posting this, I found the following:

Greens leader Bob Brown has told Channel Nine that if the Government wants to pursue a so-called “Indonesian solution” to deal with asylum seekers, it must seek assurances from the Indonesian government.

“I hope that Prime Minister Rudd will be calling on his Indonesian counterpart in Thailand to sign the international refugee conventions which guide basic ground rules for fast processing of asylum seekers,” he said.

Mr Brown says the Federal Government should be trying to improve detention conditions for asylum seekers in Indonesia.

“We’ve looked at the Australian-funded holding place in Indonesia, it’s got no power, it’s got none of the amenities we would expect for a decent jail, let alone a decent holding place,” he said.

“Some people are being held there for many years – five to 10 years – and that’s not acceptable.”

Communications Minister Stephen Conroy has also defended the move, amid claims of extremely harsh conditions and beatings in Indonesian asylum seeker camps.

“We have carried out all of our obligations and continue to carry out all of our obligations,” Senator Conroy told Network Ten.

He says Australia has contributed almost $8 million this year towards improving conditions for asylum seekers being held in Indonesia.

So we’re taking people who have escaped one hell and thrown them into another.  Three cheers for Nationalism!





Folk Singer attacked in Greece

4 10 2009

When Greece erupted into riots after the shooting of a 15 year old by a Athenian cop, I was amazed at the nonchalance quite a few self-labelled ‘Libertarians’ took to the events.  Amazingly, some ‘Libertarians’ argued that the 15 year old brought the shooting on himself and claimed the riots were entirely unjustified.  There was something insulting about the tone of such people.  Apparently, it was propaganda to correct statements made by the Greek Government and Mainstream Media that slandered the victim by claiming that he (and thirty others wearing hoods and armed with molotov cocktails) attacked the cop first, despite the eye witness accounts and video footage that showed no violent crowd.  It was more or less asserted that ‘the Greeks reacted unreasonably‘ to an incident that the ‘kid brought upon himself’.

That being said, much time has passed since then.  Lest people forget, what I want post here was an article picked up by LibCom.org and reported in the Athenian Indymedia about an attack on a young Greek Folk singer.  I want to repost this story because it illustrates, perfectly, what the Greek Anarchists and others who took part in the unrest are tasked with opposing and how ill-informed (to put it politely) those critics were.

Athens Indymedia:

Greek neonazi fascists para-state thugs used extreme sexist violence against a defenceless young lady in Athens, spraying her face for refusing to read their flyers, while the nearby police car did not intervene. The woman is still in hospital.

At 1 Octover 2009 in Greece, midday, about 30 neonazi thugs, members of the Chrysi Avgi para-state fascist organisation, gathered around the Katechaki Metro station in Athens to distribute their propaganda and put up hate-speech banners, all handling Greek flags.

A young lady, singer and artist Sofia Papazoglou, happened to be at that Metro station and the fascists forced her to get one of their flyers, which after she recognised as racist she threw it away in a trash bin a few metres away from them, without provoking them. Immediately, however, 10 (ten) para-state neonazi sexist thugs attacked the defenceless woman using extreme violence and spraying her face, in front of Metro employees.

The nearby police car did not intervene at all, allowing the neonazis to finish their sexist attack against an innocent artist. The defenceless young woman was taken to a hospital after Metro employees called an ambulance, and she is still being taken care of there. Her vision is still not completely resumed.

The ANTARSYA and EEK(Trotskyists) political parties immediately published communiques in support of the victim of this sexist attack by para-state fascists.

LibCom.org:

Sofia Papazoglou, folk singer

Sofia Papazoglou, a popular folk singer was attacked by members of the Golden Dawn neo-nazi party in Athens after throwing election leaflets handed to her in the garbage. The singer remains hospitalised with serious burns from use of unidentified acid spray and with impaired vision.

Sofia Papazoglou, a popular folk singer of the “entehno” genre known for her progressive politics was attacked on Thursday 1st of October outside the metro station of Katehaki, in Athens, by ten members of the neo-nazi party Golden Dawn when she threw election leaflets handed to her by the thugs in the garbage. The Golden Dawn was created in the 1980s by the convicted neo-nazi bomber Mihaloliakos at the orders of the imprisoned head of the military junta of 1967-1974 Colonel Georgios Papadopoulos. Since, the Golden Dawn has been waging a campaign of terror against the left wing and anarchists as well as immigrants, people of color and jews. Nevertheless, as it comes under the explicit protection of EYP, the greek secret services (the daily eleftherotypia has published a pay-sheet of Mihaloliakos by EYP), the neo-nazi group has never been persecuted and is allowed to participate in national elections. As a clear indication of the above patron-client relation with the secret services, the election campaign booth of the neo-nazis was placed this year directly under the headquarters of the EYP, in Katehaki avenue, a few meters away from the main riot police camp of the greek capital. When Ms Papazoglou threw the racist leaflets in the bin, ten thugs attacked her with a still unidentified acid spray in the eyes and then proceeded to beat her up savagely. The police did not intervene and the folk singer was taken to hospital after the intervention of metro workers. Half an hour later the neo-nazis were dispersed by anarchist who arrived at the spot upon hearing the news of the new vicious attack.

Ms Papazoglou remains in hospital with impaired vision and serious burns and bruises on her body. The Golden Dawn denies involvement in the incident, decrying it as “rumors spread by dirty jews and freemasons” and “protectors of ecologists and greens”…









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