Australia needs a Bill of Rights
Australia is at a crossroads. The decade of Coalition government showed how vulnerable our rights and freedoms could be in the face of a political party radicalised by anti-democratic and illiberal ideas. The Republican Party in America is displaying how quickly rights can be destroyed, even after it was removed from government; we need to protect vulnerable groups within our nation from copycat attacks.
After the Albanese government fulfils its campaign promises to institute a collection of federal integrity measures, it should tackle drafting a Bill of Rights for Australia. The protections such legislation would afford are crucial.
The measures taken over the nine years of Coalition rule were such that Andrew Wilkie MP described the country as moving towards being a “pre-police state” in 2015 and “becoming a police state” in 2018. When courts objected to illegal steps by the Coalition, the government changed the law. We need to have stronger protections in place and even treaty obligations, before another government that shows such cynical disregard for Australian norms is elected into power.
There are a number of actions by the Liberal governments of the 21st century that must never be repeated. The indefinite administrative detention of refugees and the endless cruelties perpetrated upon them by Home Affairs and their contractors are a stain upon our reputation. We returned refugees to their persecutors, despite non-refoulment being at the heart of the Refugee Convention. Australia has sunk a long way since we stood as one of the original signatories in 1951.
The growing crisis of state capture over the last decade led to a government that was intent on keeping its secrets. The persecution of Witness K and Bernard Collaery, his lawyer, are only two of the star chamber trials of whistleblowers in an egregious and secretive abrogation of citizens’ rights. The Coalition’s dedication to unpopular policy, echoed in state governments, has led to laws aiming to suppress peaceful protest. Without protest, democracy is crippled.
Scared of its voters, the government stepped up surveillance. The police need a warrant to inspect people’s electronic devices. Border Force, by contrast, has taken 40,000 electronic devices from people entering Australia over the last five years in a fishing exercise surrounded in secrecy.
The overturning of Roe v Wade last week in America pointed out that rights not encoded in laws are vulnerable. Now reproductive rights groups are preparing for cases where women who have miscarriages are arrested, their phone and internet history searched. Adversarial partners could be asked to testify to the criminality of the loss of a pregnancy, and the bounty system would reward them financially for the accusation.
Pregnancy tests in small towns are being put behind the counter to block privacy. Doctors are dangerously refusing to treat women miscarrying until they contract an infection, and pharmacists are refusing to issue the prescribed medication to hurry a miscarriage safely to its conclusion. Women’s bodies have ceased to be their own in Republican states, the very states where the maternal death rate is by far the worst in the industrialised world. Pregnancy is being criminalised.
The former Vice President has repeated the proposal that the abortion ban should be implemented nationally when the Republicans next take the other two arms of government.
This is not a decision supported by many Americans. Roughly 80% support abortion in some cases. Approximately 60-70% support abortion in the first trimester. The unpopularity of state bills allowing women or doctors to be charged with homicide for any intervention from the moment of conception does not prevent their passing. America’s democratic processes at all levels are compromised to enable this minority rule.
It is not just unwillingly pregnant people that stand to suffer. Justice Thomas’s concurring opinion outlined the fact that he saw all privacy protection precedents as “demonstrably erroneous” and that none could stand. Not only is marriage equality likely to be reduced to a state matter in America, but also the re-criminalisation of homosexuality. Some Republican figures have begun discussing banning contraceptive access in their state.
The Supreme Court’s attack on rights took place because three increasingly radical figures were named to the court under one President. It was not an armed coup that is depriving Americans of their freedom and equality but judicial appointments by a single elected leader. He functioned as the key to implementing decades of unscrupulous strategising by those using him.
There are two main cultural forces at work in America shaping these minority decisions being imposed on the public. One is the growth of the Religious Right, expressing extremist Christian positions on sexual morality that must be universally enforced to allow Christ to return. The other is a “social conservatism” deployed by Republican strategists and their media allies in “culture war” campaigns. The two overlap: the former depicts homosexuality as a grotesque sin, the latter depicts it as a grotesque and unmanly aberration.
Both forces are at work in the Right in Australia. Under the Morrison government, Australians saw the Religious Right come to the fore. The long Coalition procrastination on marriage equality made the debate bitter and harmful. After the passing of the marriage amendment, the backlash from religious conservatives was embraced by Morrison who worked to pass a parallel bill legalising religious discrimination.
Morrison accompanied this with attacks on trans youth and sportspeople, an echo of a key Republican strategy in America. The embrace of Katherine Deves, whose campaign was apparently run out of his office, illustrates the inclusiveness of the strategy. Right-wing feminists who have been encouraged to deploy white supremacist talking points are brought into the fold to broaden the appeal. In America, hundreds of laws have been implemented to limit both teachers’ ability to talk about the existence of LGBTQI+ people and the actions of trans people.
This Religious Right pressure on government hasn’t disappeared with Morrison. Extreme religious groups are stacking Liberal and National Party branches. In South Australia, the leader of the Liberal opposition David Speirs, three of his shadow ministry, and Labor MP Clare Scriven are attending an anti-choice training day on the same weekend as rallies against anti-choice legislation take place around the country.
The same (substantially fossil-fuel funded) culture war battles are being fought in Australia as in America. We have echoes of their Critical Race Theory battles in our “history wars.” Senator Hollie Hughes just reported to the Sydney Institute that “Marxist teachers” were to blame for the Morrison government’s defeat. This parrots lines in America where Republicans are trying to break the public school system in favour of religious education. Sky News both echoes and prompts the culture war battles that swirl in the internet sewers. The Religious Right has shown it is as unscrupulous as the socially conservative Right in the tools being used to reverse the achievements of the civil rights era.
Already, a Bill of Right’s protections is going to be difficult to define in Australia. Disinformation makes a fact-based discussion challenging. Anti-vaxxers would argue that the community’s need for mass vaccination to keep hospital systems functioning is a plot meant to poison them. Shaping a line for the protection of protest in regular times as opposed to pandemic eras is fraught. The Deves position and its “alternative facts” are being filtered out through women’s chats and gender-critical feminist journals disseminating illusory threats and breeding a demand for the persecution of a minority.
This debate will be complicated and require a delicate hand so that the provisions are clear enough to prevent excessive judicial license to interpret. They must be comprehensive enough to prevent a group from being harmed by its interests’ omission.
America is showing us that the combination of religious extremism and disinformation-based culture war radicalisation can create a dangerous voter bloc. A disengaged majority can be overwhelmed before it knows what hit it.
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Great piece, Lucy. Well done. Brilliant stuff.
Completely agree, Lucy !
With the religious right both here and in America believing that The Handmaid’s Tale is a template for the future we need to act now.
It’s probably asking too much, but with our Constitution creaking with age and obsolescence it is probably time to consider a complete overhaul which will incorporate a Bill of Rights.
It has always struck me as complete bullshit that protesters need to get a permit from the police in order to demonstrate and protest. Really? The Police State arrived a long time ago. Yet, Australians dutifully follow the rules and get their permit. Or not.
A timely and well-argued piece. You would hope that Labor can act swiftly on this imperative. There are plenty of models available to kick-start the process. Victoria has a Charter. Then there are many pieces of legislation to be repealed. Four years ago, Bernard Keane took stock of ways we were approaching a police state. Thank you, Lucy.
‘Debate” whether to have a bill of rights or over contents???
The septics have ten amendments, are they a bill of rights? The 10th give the supreme court’s justices the power of interpretation.
Our supreme court decided that a foreign government could legislate to determine the nationality of people born in Australia.
So if a bill of rights keeps the courts at bay, go for it.
Personally a new constitution is preferable to this old duck.
I have being saying this for years!!
The only problem will be trying to get the Conservatives to support it!!!
How can Australia be a progressive country while we have got this outdated Conservative members in the LNP!!??
At present this will only be a wish!!??
I will be a very young progressive 71 years old at the end of August so I wonder if I will see it!!??
Well said Lucy. Bring on whatever makes this country more fairer and egalitarian.
Hi, Consume Less. For some unknown reason your comment was held for moderation. We apologise for that.
All good Michael
I found out what caused it.
People commenting on this site for the first time have their comment placed in moderation while we check out if they’re a troll or a spammer. There was a spelling ‘mistake’ in your email address so the system thought you were a newbie. After 0.005 seconds I knew you were one of the good guys. 😁
It’s annoying, I admit, that email addresses have to be included but I haven’t found a way around it.
Very timely article, and very well argued. I don’t know whether a Bill of Rights would cut it, though. Possibly a new Constitution may be preferable. After all, the American Bill of Rights seems to provide people with the right to be murdered, and it’s hard to see what other benefits it provides.
A more pressing issue is the firm separation of Church and State (which you discussed in a previous piece). The Oath that new ministers and senators take (if not the affirmation) still concludes “So help me god”. I might be overly idealistic, but in my perfect world the membership of any church or religion should automatically exclude anybody from being a minister or senator. We have seen it time and again that there is always a conflict of interest, and the person involved always takes the line of her/his church, not the line of reason and humanity. There should be no religious influence in parliament.
We only have to look – as you argue so well – at the rise of the Christian Far Right in America to see what happens when religiosity runs amok. It’s just terrifying.
So far the government is going well.
Albanese has visited Ukraine and provided support.
Western democracies have to stand against the brutal Putin regime
Don’t dismiss our courts too lightly.
The High Court have just smashed the coalition government in one of their more contentious legislative acts.
Without going too deeply into the legal weeds of Alexander v Minister for Home Affairs
 HCA 19 the coalition in 2020 amended the Citizenship Act to allow the minister for Home Affairs a discretion to strip the citizenship of an Australian citizen.
The High Court have said, enough is enough of the Executive taking over powers that are more correctly those of the courts. The court have adopted the ‘separation of powers’ a valuable safeguard in our constitution – in effect it is the role of the courts and our judiciary to impose punishments on a citizen and not at the whim of a politician.
This is an important decision by our High Court at a time when the US Supreme Court is twisting itself in knots trying to overturn its own prior decisions (Roe Wade) based on dubious religious and political leanings.
In my view, we have a very good judicial system that so far has not been contaminated by politics as has occurred in the US – let’s hope it stays that way.
In the meantime, we as citizens can rest assured that our citizenship cannot be stripped at the whim of a politician – one in the eye for Spudley Dutton.
New Constitution or a Bill of Rights – why not both?
Yes, a well thought out enlightened article Lucy Hamilton. Congratulations. My thought for a long time is that Australia needs a charter of human rights/bill or rights, call it what you will. We do have legislated human right laws in Victoria, the ACT and Queensland too, I believe. We also have an Australian Human Rights Commission/Commissioner. We have Administrative Appeals Tribunals. We have Citizenship laws. We have ‘Freedom of Information’ regulations (many would say Freedom From Information). We have Ministerial Determinations (by the Ministers for Immigration, Home Affairs, Attorney General) delegated by the Federal Executive (ie basically Cabinet). A charter of human rights for Australians is essential for Australia to continue into the future as a ‘Western Style liberal democracy.
We don’t want to descend into authoritarian capitalism, or continue as ‘the most secretive western democracy’.
That leads to creeping fascism.
The worst of all systems of control.
And we need continuing strong institutions as the cornerstones of that democracy as well (eg. ABC, Independent Universities,National Archives, National Library, Australian Law Reform Commission, etc. the list goes on). Perhaps we could put a Charter of Rights based on the state and territory ones plus the UN Charter of Human Rights to a plebiscite vote. Rather than as a referendum (which is extremely difficult to pass, 8 out of 44, not a very good record). A plebiscite of all voters in Australia as one electorate. With a simple majority, or maybe a two thirds majority. That would have a lot of ethical authority. Legal authority could result as a by-product. An addendum to the Federal Constitution. The High Court has found that Australians have ‘an implied right to freedom of expression and assembly’. That was the best that they could draw out of our current constitution. A very weak right. Implied. Tacit.Not able to be asserted. Former High Court Justice Michael Kirby said that a bill of rights could be a start. A rallying point or a benchmark as a base from which to assert a more comprehensive ethic.
We shouldn’t throw out the good with the bad and start entirely from scratch.
We should just build on the good.And eliminate the bad.