Should Australia Have a Bill of Rights

¶ … Australia Have a Bill of Rights?

Australia is the last remaining Common Law country without a Bill or Rights or Human Rights Bill. It is important to note that the Australian variant of liberalism differs from the Anglo-American model in two important ways. First, the establishment of Australia as a series of British colonies under authoritarian governors and the absence of any political revolution has meant a lesser stress on the idea of individual rights vs. The state. There has been no one in Australian history to shout 'Give me liberty or give me death', no real pressure to incorporate a Bill of Rights into our Constitution (Rowse, 1978).

Second, these factors combined with the problems of economic development in Australia and the generally inhospitable nature of the land, a staple theme of Australian literature, has meant an absence of any real laissez-faire tradition. 'Socialism' may be abhorred in the vacuum, but there is a general consensus on the need for a strong interventionist state to guarantee basic economic welfare and promote development. Liberal governments accept, albeit reluctantly in some cases (e.g. Medibank), social welfare measures, and Labor governments enthusiastically seek economic growth (and even foreign investment in the case of the state governments). Thus the seeming contradictions of Henry Albinski's remark that Australians are more ambivalent than Americans to authority: 'there is more rubbishing of authority figures and on the other hand more reliance on government than here' (i.e. The U.S.A.).

The Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter of Rights') is a milestone in Australia's constitutional and political record. Despite the fact that it is not the nation's first bill of rights, that one is the Human Rights Act 2004 (ACT) ('ACT Human Rights Act'), (Campbell, 2006) it is the primary apparatus in an Australian state. Like the Australian Capital Territory law, it is a ground-breaking, if humble, change to the Australian system of government in the type of an unentrenched Act of Parliament that defends a range of civil and political rights.

The Victorian Charter of Rights symbolizes a decisive removal, at least in Victoria, from the long-held conception that the best defense for human rights is the first-class sense of our parliamentary legislature as forced by the doctrine of responsible government and the common law as useful by the judiciary. This view was promoted at the conventions brought up in the 1890s that created the Australian Constitution (Campbell, 2006) and in writings for example those of 19th century English legal theorist, AV Dicey (Patapan, 1997). The view has integrated supporters such as past Prime Minister Sir Robert Menzies, who considered the doctrine of accountable government as being the definitive guarantee of justice and personal rights' in Australia. (Campbell, 2006) He disputed that the doctrine preordained that Australia had no necessity of the 'formality and definition' of rights in a tool like a bill of rights. (Patapan, 1997) In current years this outlook has come under dispute as people have inquired whether the conventions concerning to responsible government, for example ministerial answerability, hang on to the same force.

The ratification of the ACT Human Rights Act and Victorian Charter of Rights also disputes the analysis that Australia has a tough record of protecting human rights which does not require enhancement through improved legal protection for such rights. In 1967, Sir Robert Menzies, just withdrawn as Prime Minister, commented that 'the human rights of individuals in Australia are as sufficiently cosseted as they are in any other country on the earth.' (Debeljak, 2007) In the same way, current Prime Minister John Howard held in 2000 that 'Australia's human rights standing in comparison with the rest of the world is fairly magnificent' (Conway, 1978).

While Australia unquestionably has an improved human rights testimony than a lot of other nations, the vision that our record could not be considerably enhanced is no longer as willingly accepted. Both the historic and modern weaknesses of the Australian evidence have been uncovered, counting the federal government's own Human Rights and Equal Opportunity Commission in regard to the compulsory elimination of Aboriginal children from their families (the 'stolen generations'), and the imprisonment of children looking for asylum and refuge and their significant growth of a range of mental health problems (Conway, 1978). Expansion after September 11, 2001 has also lead public to inquire how well human rights are sheltered in Australia, mainly since the acting out of new laws on sedition; the arrest of non-suspects by the Australian Security Intelligence Organization; control orders that facilitate house arrest; and anticipatory detention whereby an important person can be held without charge or trial. As Brian Burdekin, a previous Australian Human Rights Commissioner, said in 1994: 'It is away from question that our present legal system is gravely insufficient in shielding many of the rights of the most susceptible and underprivileged groups in our community.' (Debeljak, 2007)

The Victorian Charter of Rights is significant not only for the reason that it is an important change to the text of law. It is also vital for the reason that it needs a re-evaluation of these and other conventional views about Australian politics and regulation as they communicate the defense of human rights. The Victorian Charter of Rights demonstrates that it is probable to look again at a number of the most basic suppositions and beliefs that lie beneath our system of government, and consequently, to bring about legal transformation. This challenges the view that bills of rights are not politically attainable in Australia. While this illustrated strong support from the litany of letdowns to attain transformation around Australia, (Allan, 2008) it has now been removed away by the achievements in the ACT and Victoria, in addition to by new countrywide initiatives like that by New Matilda for a national bill of rights. (Campbell, 2006)

Why Is There No Australian Bill Of Rights?

Australia is at present the only democratic country in the world with no a national bill of rights (Debeljak, 2007). Some wide-ranging form of legal defense for basic rights is otherwise observed as an indispensable check and balance in democratic domination around the world. Without a doubt, I can find no illustration of a democratic nation that has increased a new Constitution or legal system in current decades that has not incorporated some form of a bill of rights, nor am I conscious of any such country that has done away with a bill of rights once it has been established.

Why then is Australia the exclusion? The response lies in our past. Even though many think of Australia as a young country, constitutionally speaking, it is one of the oldest on the planet. The Australian Constitution is still almost totally as it was when ratified in 1901, while the Constitutions of the Australian states can go back to the extent of the 1850s. The legal systems and Constitutions of the state and the Australian colonies (and then states) were envisioned at a time when human rights, with the well-known exception of the 1791 United States Bill of Rights, happened not to be protected through a solitary legal instrument. Without doubt, there was then no such commandment in the United Kingdom, upon whose legal organization ours is considerably based. This has altered, particularly after World War II and the opening of the Universal Declaration of Human Rights, (Allan, 2008) but by then Australia's system of administration had been in service for decades.

Not only is the Australian legal system old by world provisos, but it has opposed change. Ever since 1967 Australia was depicted by Geoffrey Sawer as '[c]onstitutionally speaking ... The frozen continent.' (Allan, 2008) This is yet more relevant today, with the last unbeaten vote to modify the Australian Constitution in 1977 when it was altered, in the middle of other things, to set a retreat age of 70 years for High Court judges. An additional eight unproductive proposals have been put to the people from that time. The period from the time of 1977 is now the longest without any transformations to the Australian Constitution (the next longest stage was from 1946 and 1967). The political party most repeatedly linked with constitutional improvement, the Australian Labor Party, has itself not thrived in having the people hold up a referendum from the time of 1946, with Labor governments putting 13 botched proposals in votes held in 1948, 1973, 1974, 1984 and 1988. By comparison, over 56 per cent of the member states of the United Nations made foremost changes to their Constitutions just among 1989 and 1999. Of the states constructing such alterations, over 70 per cent took on a totally new Constitution.

Liberalism in Australia and Human Rights

Liberalism in Australia implies support for parliamentary government, state-supported free enterprise and a certain amount of welfare measures; it does not contain the stress on individual rights and freedoms associated with liberal theory (though it may, as Albinski suggests, include considerable suspicion of authority). Thus Australian governments have traditionally imposed heavy restrictions on personal freedom in the areas of censorship, sexual behavior, gambling and drugs; no one seems very worried by compulsion to vote, to wear seat-belts, to belong to unions in the way these would not be acceptable in other liberal societies.

The very smallness of the Australian dream is an important part of our particular value-system: there is no vision of creating a society that can be a model for the rest of the world, as in the U.S.A., nor of upholding revolutionary ideals, as in France, nor even of traditional community, as in Great Britain. This lack of an idealist tradition, as reflected in the prosaic language of Australian politicians, is a particular disadvantage for those who would bring about change (Patapan, 1997).

To sum up: Australia is, indeed, a conservative country if by this is meant that there is a highly developed consensus on basic values, but these values seem more accurately described as liberal. (Louis Hartz has characterized them as radical, (Hartz, 1964) which is misleading because of the particular way that word is used today.) In any case what is clear is the extent to which Australians have by and large accepted and acquiesced in the institutions and ideologies of liberal capitalism. Over the past thirty years or so Australia has experienced relatively little political turmoil, and those issues that have excited passions -- communism in the 1950s, Vietnam in the 1960s, even the sacking of Whitlam in the 1970s -- have been fairly easily dealt with by the existing political process (Rowse, 1978).

The single most significant way in which the triumph of liberalism reveals itself in Australian thought is the manner in which Australian society is almost universally depicted as classless. Tim Rowse has written a whole study of Australian intellectuals between the 1920s and the present day around this theme, summed up by A.D. Hope's remarks in 1956 that: 'Australians now for the most part form a homogeneous middle class. It [sic] has little in the way of a real proletariat or a wealthy leisured class' (Rowse, 1978). This view has been echoed by almost all popular commentators on Australia -- Donald Horne, Craig McGregor, John Pringle, Ronald Conway -- by a large part of our social scientists and, above all, by the media who constantly decry appeals to 'outmoded class politics'. The constant use by politicians of the term 'the community' is part of the attempt to deny that there are any significant divisions in Australian society (Patapan, 1997).

The role of women in consolidating this bourgeois hegemony was central: denied a chance to participate equally in political and industrial life, and resented by men who found a common radicalism in the mateship of work relations, women became dominant in the home where they firmly established the hegemony of middle-class values. In his study of mateship, Harry Oxley has suggested that men can behave in an egalitarian way together and 'safely leave the defining and symbolizing of [their] status position to [their] wives'. Thus the subordination of women -- perhaps greater in Australia than other Anglo-American countries -- became a way of enforcing the allegiance of men to the dominant middle-class order. This has been argued by John Power, who identifies a particularly strong division in Australia between public and private life, and sees the dominance of women in the private sphere as 'surely the most effective of all supports for cultural conservatism' (Rowse, 1978).

This argument may well be overstated; by and large men have remained dominant in Australian families where they both reproduce the authority structures of the larger society and compensate for their own powerlessness in the wider world. Observers have often stressed that Australian families are less participatory and place more emphasis on discipline and obedience than do American ones. (The same comment is even truer of our schools.) The evidence of domestic tyranny, bullying and often wife -- and child -- abuse is quite considerable.

But equally it is true that the heavy emphasis on the familial ideology is an important restriction on men and women alike. I have heard stories of strikes that have been ended because of pressure on the strikers from their wives and even children. Belief in the centrality of the family is a crucial part of Australian values, and it acts, more perhaps than in other Western societies, to maintain political life as an almost entirely male activity.

The problem with such assertions is that we do not have any real evidence that Australians are more sexually repressed than are other Western cultures, and without a huge research team of psychoanalysts I am not sure how such evidence would be collected. Indeed, the rapid decline of rigid moralism in Australia over the past ten years or so, so that, for example, our television seems less encumbered by censorship than that of the U.S.A., Great Britain, or France, suggests we should reconsider the stereotypes of Australian Puritanism. It may be that Australians are in practice freer in their sexuality than many comparable peoples. The dominant cultural values do, however, promote a sense of guilt, a feeling that sexual expression outside the framework of marriage -- whether it be outside because it is homosexual, adulterous or without emotional commitment -- is inferior. And it is certainly a frequent observation that Australians are particularly inept and ignorant sexually; libido is too often redirected into sport, alcohol or general dissatisfaction (Conway, 1971) (all, by the way, conservative and acceptable -- if not very satisfying -- means of sublimation).

The existence of a comparatively well-off working class, the early creation of a suburban life, and the influence of notions of respectability and the church combine to create a paradox in Australian culture, namely that this is a society which exhibits a constant contradiction between a very conservative, privatized and home-centered life-style on the one hand and a strong radical tradition on the other. (The organization of large parts of the working class into unions and the founding of the Labor Party occurred very early, and by and large our unions remain comparatively strong and militant even today.) The latter is the basis for the radical interpretations of Australian history, of which Russel Ward The Australian Legend is the best known; the former explains why despite this radical tradition our political, social and cultural life has been dominated by conservative forces (Patapan, 1997).