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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