A crash-course in Australian Constitutional Freedoms

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.