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.

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7 responses

26 10 2009
A crash-course in Australian Constitutional Freedoms « .urbandissent | australianews

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27 10 2009
Mike Gogulski

The Al-Kateb thing is pretty sick, but as far as I know, it’s the case basically everywhere.

Just from looking over the Wikipedia entry about the judgment, most of the matter probably turned on the fact that Al-Kateb arrived in Australia illegally. The 1954 Convention on the Status of Stateless Persons binds signatory states to afford certain protections to stateless people — but only to those found lawfully present in their territories.

What this seems to mean in practical terms for someone like me is that the moment, say, my residence permit lapses, I could be detained indefinitely. Or worse.

What a fucking world.

11 11 2009
Royce Christian

No question. There would have been no case if Al-Kateb had entered the country ‘legally’, for he would not have been locked up in John Howard’s detention centres. But I think, at least in regards to the ‘rights and freedoms’ Australia grants to its inhabitants, it pretty much shows that people’s lives are immaterial across the board. It shouldn’t matter that the guy was an illegal immigrant; he is human. Not property, not some ‘lesser’ species, but human.

Legally, of course, this wouldn’t hold up in a court of law.

11 11 2009
Mike Gogulski

This is exactly the thing. Come to be in a place “legally”, that is, without transgressing some imaginary lunacy at a nonexistent line, and what happens thereafter gets subjected to one legal regime or another, depending upon what silly grand diktats were signed by the temporal overlords of that state or another. “Illegally”, on the other hand, and, well… you’re better off trying to claim status as recyclable waste: at least the trash cannot be held indefinitely by law or failure thereof.

27 11 2009
GT

Hi Mike,

You’re falling nito the American trap of thinking that rights only exist if they are enshrined in the latest iteration of the collective opinion of the tax-eating class. Americans are taught to believe that their rights exist by dint of the Constitution and amendments thereto, as if it was the State that brought them into existence.

Every man, everywhere on the planet (and outside it) has the right to freedom of speech, association and the right to live life unmolested: the fact that the tax-eating classes have not promulgated a rule that concords with natural rights, and/or have promulgated rules that explicitly violate those rights, is simply more evidence that ‘government’ has nothing to do with rights-protection and everything to do with gang rape.

As someone who has spent two stints (only two weeks each) in French concentration camps (I flouted the ‘all livestock must have ear-tags’ rule) I can seriously say that Christmas Island is superior to the Centre de Retention Administrative at Lyon – but that is irrelevant. ANY infringement of the human rights of ANY member of our species, by the tax-parasite class, should be met with (defensive) violence.

Kevin Rudd has already indicated that he is entirely supportive of extrajudicial assassination – his barely-concealed glee when the Indos killed some poor religious nutjob (without trial or any other pretence at due process) is the proof. Let him and his parasitic henchmen live their values, I say.

And lastly – do NOT support a ‘Bill of Rights’: as with the US version, the tax-eating classes will, over time, convert a specifically non-exhaustive, non-exclusive list to a list of the only rights that are deeemed to exist.

Again, to paraphrase Diderot: man will be free when the last politician is bludgened to death with the severed arm of the last police sniper.

Cheerio

GT.

28 11 2009
Royce Christian

GT

Thanks for taking the time to share your thoughts here, and while I certainly believe that Mike is more than capable of taking care of himself, I’m finding it hard to understand who it is you are addressing here. I don’t think Mike has ever expressed the view that,

“that rights only exist if they are enshrined in the latest iteration of the collective opinion of the tax-eating class.”

If anything he has said otherwise.

On the other hand, you could potentially be addressing me and the purpose of my post was not to suggest the American opinion that rights only exist where they are written down, but to point out how utterly insignificant rights are inside the Australian legal framework. The entire piece was intended to highlight the stupidity of the argument, ‘we’re a free country and just be glad you are given the right to free speech etc.’

I’m no longer 100% certain that ‘rights’ exist as such.

Royce

28 04 2014
theoldwiseman

What a crappy constitution! A ghost constitution. It’s as if those who wrote it just wanted to pretend that we were getting a constitution like the great American one. Just a semblance of freedom to keep the populace appeased.

Well from a christian libertarian perspective it doesn’t really matter too much anyway. I have only one King and one Lord (or in modern parlance; one Prime Minister and one Premier); God. It is His will alone that I follow.

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