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.





“They’re selling drugs to our kids!!11!1!1!!”

1 05 2009

Okay, so I’m going back to basics.  My original intention for this post was to attack the root of government with whatever logic I can muster, but I will admit that I’ve been redirected to attack a more prevalent strain of statist thought in our lives.  Something that runs global, no matter whether your from Australia or Timbuktu.  It’s a pandemic, once that has existed long before swine flu, bird flu, SARS or theocracy or any other disease out to find us and destroy us — and something that caught my attention today.

Drifting around the city between the university and the various other tasks I had to perform, saw my path impeded by a protest conducted by the Rebels, a bikie group looking to combat legislation enacted by the South Australian parliament that has been termed  the ‘anti-bikie’ legislation.  The legislation attacks freedom of association of an organisation when its members have been branded ‘criminal’.  But the protest itself meant nothing at the time, it was only after that it had any significance.

After getting home that I turned on the news and the farce played out.  As it turns out, during the protest the rebels had submitted a petition to a senator for the Democrats.  In a true show of journalistic integrity, the reporter narrating the scene of the handover described the document as ‘bizarre’ before explaining that it referenced the Bible and the Magna Carta while calling for a Bill of Rights.  There was a pause in the narration while the report cut to a seen of Mike Rann, talking to reporters who was making a deliberate attempt to lead the media by referring to the groups’ call for a Bill of Rights as absurd, on the basis that they ‘live outside the law,’ and, ‘are selling drugs to our kids.’  And then it hit me, like a diamond bullet through the brain (thank you, Apocalypse Now) the true disease is not this swine flu scare that’s sweeping the globe.  It’s this unrelenting faith in the powers at be, even when we know the bastards are out to screw us.

Take Obama, or ‘super-jesus’ as I’ve come to call him in conversation.  He’s very good.  Very photogenic, very eloquent and the main thing he has going for him is that whole, ‘he’s not Bush’ thing.  He’s go the Charm of Clinton and his slight-of-hand is better than Houdini.  People have this amazing faith in Obama.  It’s almost unquestionable.  Never mind that he is a politician and by the nature of his profession he is a professional liar.  He can continue bombing campaigns in remote Pakistani regions, exercise state privileges secured by Bush to cover his tracks, run up 12.8 trillion in debt in order to ‘combat’ a bad economy and even manage to piss of the island of Manhattan with his happy-go-lucky antics — and is still beloved by all!  Hell, in a world where wars are waged and people are dying of some misfortune or another, the fact that the Obama family adopted a new dog makes international headlines.

Then, to come a little closer to home, there’s Rudd.  Like Obama, he was swept into office on a mantra calling for ‘change’ while talking about ‘working families’ –the very same people who he’s going to have to tax in order make up what his government now owes.  The guy has managed to maintain, despite a bad PR rap recently, something like a 74-75% popularity rating.  No politician is ever that popular — the only possible explanation is that he’s decided to give away all the money he’s collected from everyone.  And I barely need to go through the list of stupid things this guy has done, but I will mention that his politics certainly makes me raise an eyebrow.

And now to bring it closer to home, there’s Rann.  He loves the media, the PR spin and you’ll see him in the centre of the action, talking to journalists, making absolutely outrageous claims about whomever his opposition happens to be.  If there’s anything to be known about Rann, he’s about as in touch with your common man as a lunatic is in touch with his sanity and that he sure as hell doesn’t give a damn about the individual liberty of South Australians.

Where ever you’re from, I’m sure you can relate to the caricatures of the political elite I’ve given.  After all, politicians of all shapes, makes and models, seem, at least to me, something akin to that dirty old uncle who makes you feel uncomfortable every time he comes over for dinner.  People know they’re creepy and what goes on behind closed doors is wrong.  Yet they still do as  they’re told when they’re threatened with the bogeyman.








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