Why doesn't Australia have a bill of rights?

Australia is the only Western democratic country with neither a constitutional nor a legislative bill of rights.  This defect came about by decision of the founders in the 19th century. 

When the Australian constitution was being designed, there were three elements that differentiated it from the United States precedent.

The Federal Commonwealth would be established under the Crown.
The Executive would sit in Parliament.
The rejection of a notion of a general bill of rights.

Discussion at the time echoed the prevailing racism of Australia with fear expressed that provisions in a bill of rights would undermine some of the discriminatory laws, including those laws and practices which disadvantaged Aboriginal people and the Chinese in Australia. (enlightened bunch we are…)

The founders rejected a bill of rights as an American intrusion into notions of parliamentary sovereignty. A bill of rights has the tendency to politicize the courts. Former Australian Prime Minister John Howard argued against a bill of rights for Australia noting that it transfers power from elected politicians to unelected judges and bureaucrats.

“In the Australian context the adoption of a Charter or Bill of rights would represent the final triumph of elitism in Australian politics – the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy, and that the really important decisions should be taken out of their hands and given to judges who, after all, have a superior capacity to determine these matters.” – John Howard (I promise that this will be the only time I ever quote John Howard)

Actual photo of John Howard . -nakedfella.com

Nevertheless, some of the provisions contained in the Australian Constitution are equivalent to bill of rights provisions.  As we all know from the film The Castle the law emphasizes that the acquisition of property for the purposes of the Commonwealth, must be on just terms. The constitution promises that trade, commerce and intercourse (well not the fun intercourse) would be free. There are also promises for religious freedom, trial be jury and right to free political expression. 

Moreover, Australia has ratified seven of the eight major international human rights treaties. So at the international level, we have a suite of human rights guarantees and the Australian government has concomitant obligations. The problem with the international system is it lacks a "policing system" that can enforce those obligations. Note: The lack of a policing system is how Australia gets away with our current stance on Immigration and Asylum Seekers.

Despite these safeguards there are many examples that highlight the present incapacity of Australia’s courts when faced with important constitutional challenges (Al-Kateb v Godwin, 2004). Invariably those left unprotected are often powerless to change the system. The promise of a robust bill of rights is the empowerment of marginalized groups. For many Australians the legal system is not working as mechanism for freedom, but as an instrument of oppression.

A bill of rights alone will not protect the rights of the people. But nor does majoritarian democracy in Parliament. It is necessary to put some of the values of our society above the party political debate. Amongst the current election rhetoric, we should not forget the importance of a debate on an Australian bill of rights.

note: Victoria and the Australian Capital Territory (ACT) are the only states and territories to have a their own independent human rights bills.

Ubuntu - A Guide to a Bill of Responsibility

The 20th century will rightly go down in history as the century of rights: voting rights, women's rights, sexual and reproductive rights, workers' rights, civil rights, human rights, disability rights, privacy rights and many more. However, there remain billions of people in the world who sit outside our rights framework that we privileged few take for granted, and even within free democratic societies our rights are not exempt from being trampled on.

Yet, our current systems of individual rights should be the start of an ongoing and evolving understanding of people in society and not some end point goal.

The 1948 Universal Declaration of Human Rights establishes the dignity of all persons as the basis for freedom and justice in the world. The framework of individual rights that is laid out in the Universal Declaration of Human Rights has its origins in Immanuel Kant’s writings.

For Kant, a human being is of incalculable worth and has dignity precisely because through our practical reason we can potentially exercise our autonomy and lay down a law unto ourselves, which for Kant is the moral law or the Categorical Imperative.

Human beings have equal worth because we all have the possibility of the rational exercise of freedom. We should, as a moral mandate, regard all other human beings through the representation of that possibility.

Kant introduces the idea of horizontal thinking; the recognition that all creatures that are defined by the possibility of rational exercise of freedom have equal worth. Any society which denies its member the right to partake in the development of this potential should be rejected.

While we continue to fight for individual rights this does not excuse us from looking ahead. A key criticism of the Kantian notion of autonomy is that it is too individualistic. It fails to grasp how human beings are products of, and producers of, society. I hope that the 21st century will go down in history as the century of human responsibilities: civic duties, fiduciary duties, professional responsibilities, intellectual duties, humanitarian duties, environmental duties, responsibilities to future generations and many more.

Ubuntu provides an interesting framework from which a ‘Bill of Responsibilities’ can be developed. The concept Ubuntu, like many African concepts, is not easily definable. To define an African notion in a foreign language and from an abstract as opposed to a concrete approach can also be particularly elusive.

A core belief in Ubuntu is that a person can only be a person through others. In other words the individual’s whole existence is relative to that of the group. In Ubuntu individuals are intertwined in a  world of ethical relations and obligations from the time they are born. We come into the world obligated to others, and in turn these others are obligated to us, to the individual.

The concept of a person in Ubuntu is an ethical concept. A self-regarding or self-interested human being is one that has not only fallen away from her sociality with others; she has lost touch with her humanity.

The intrinsic worth of a human being, which justifies an egalitarian ethic, is not defined in the same way as Kantian humanity, because that being has the potential to act in accordance with the dictates of pure reason. Nor is it because of who that individual is in his or her actual achievements. A human being has dignity because they are a unique being born into the human community, raised and supported there.

Within the Ubuntu framework society is not something 'out there', but instead how we are inscribed in each other. Just as people have obligations to the society, so the society (not limited to the state) has obligations to them.

While Ubuntu all may seem a little vague, the US Constitution has a preamble that outlines citizens responsibility (I would find a example from somewhere closer to home but Australia being the ‘lucky country’ has yet to formalize a bill of rights):

“We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Perhaps the next step in our societal evolution will be a Bill of Rights and Responsibilities. (Here’s hoping that when Australia gets around to writing a Bill of Rights that it is conceived of as a Bill of Rights and Responsibility)

note: Ubuntu’s social value will always depend on the approach and the purpose for which it is depended on. Ubuntu can be misappropriated to deny the importance of individual autonomy and through a conservative lens Ubuntu is both authoritarian and patriarchal (looking at you, ANC). This does not differ too much from how some rights are bastardised and used as trump cards against others in the name of “freedom”, “safety” or “community”.

Don’t be fooled - Scandinavia is also shit

Whenever discussing alternate models of governance, Scandinavian countries are inevitably brought up as the idealistic trump card to show how a country can run prisons, processing asylum seekers, as models of social welfare, or whatever is being complained about by people who are invariably unaffected by any of these policies (this is an easy jab at myself).

Traditionally, Scandinavian countries have managed to project an image of being tolerant, liberal, and humane societies. They have projected this image not only to the world, but to their own people - constantly propagating their own humanism and its virtues. These countries have become internationally known as model societies for the human race. In nearly all measures of societal health and well-being, Scandinavian countries score incredibly highly.

But I am going to be bold and say that Scandinavia is CRAP. Or at least as crap as everyone else. Or at least has significant problems that are too often glossed over when they are being used as the proto-utopian social ideal by social welfare advocates (again easy jab at myself).

NOTE: The important thing to take from all of this is that all countries are developing. The notion of a developed country vs developing vs underdeveloped is a misnomer. We can all learn from each others successes and failures but lets not be so unwise as to build false pedestals.

Denmark

Denmark. Before I go on to analyse your trenchant racism, I am going to have to get a few things off my chest. Firstly, your language is not that hard, you simply have the worst language education models I have come across… that said, it does remain a silly language and you all sound like you are choking on a potato. Rugbrød is not nice and neither is salty licorice, which tastes like Satan’s urine after he has eaten a pile of asparagus. Finally, being blond, tall, blue-eyed and having the ability to tan does make you attractive - BUT when everyone looks like that it is like a scene from Children of the Corn - which is scary.

typical danish children

As much as it may be represented otherwise, Denmark does not have a progressive stance on refugees and asylum seekers. The Danish mask of decency and humanism has been pulled down by the treatment of non-European, non-Christian immigrants and refugees. There is an ugly face of racism that is most obviously evidenced by the growing popularity of right wing movements, and a general passivity among the public.

Denmark in recent years has seen a steady tightening of their immigration policies mirroring the attitudes of the population. Critics of Denmark's tightening rules on immigration and integration say the country is violating European norms, including human rights legislation.

Family reunions are curtailed by long waiting periods, unnecessary demands, and by the use of DNA tests. Laws introduced in 2012 about family reunions require a third world national to be a legal resident in Denmark for five years before he or she has the right to marry outside of Denmark and bring his or her spouse into this country. It takes three years to get a permanent stay permit if one marries a Danish citizen. Asylum seekers are banned from marrying in Denmark altogether.

Even those immigrants who have lived in Denmark for years are now obliged to show proof of their ability to provide for their families if they want to be reunited with them in Denmark.

Every immigrant and refugee must carry a stay/work permit all the time. Anyone who violates this rule is fined 600 kroner (US$105).

There have been reports that police officers are members of "Den Danske Forening", an anti-immigration organization that has had the label ‘Nazis’ applied to it. Some police officers and members of the National Guard (Hjemmeværnet) have publically, both in newspapers and TV programs, made statements that are punishable under Danish law that prohibits racist remarks. None of these police officers have been dismissed from duty or put on trial.

Fun Fact: Amnesty International has now included Denmark in its list of countries which abuse human rights.

Note: Eva Chan has written a brilliant piece on the Racism in Denmark and how it is excused as humour. link

Finland.

Finland, you may have a sauna in your international airport but you too are crap. I could point out that your suicide rate is outrageously high, or that I am surprised that you have 100% literacy given your levels of alcoholism, but I am also aware that you beat the Russian army and have no doubt that you are a people proficient in death dealing. With a full understanding of your killing capacity I dare say that your environmental attitudes are crap.

700 forest species are classified as endangered because of Finland’s current forestry policies.

Finland’s Lake Saimaa is home to one of the world’s rarest seals, the Saimaa ringed seal. With roughly 260 of these critically endangered animals left in the freshwater lake you would think that maybe it would be time to act on this.

Don’t like seals?

The mountain hare is classified as near threatened. The lesser white-fronted goose is critically endangered. The wolf is endangered. 700 is a long list of animals to not give a shit about.

The European Union has repeatedly told Finland that the country is not doing enough to protect their environmental heritage.

Yes, I am going a little soft in my critique of Finland but I am worried that Simo Häyhä may have given birth to children who will hunt me down for talking badly of their country.

I will end by saying that your coat of arms has a lion stabbing itself in the face... maybe a cause of the high suicide rates?

Norway

You are a country of peace loving prostitutes. Well, at least that is what the data says.

A 2012 report states that there are 70 percent more women selling sexual services in Norway today than in 2009. This is despite a 2009 prostitution law that prohibits the purchase, but not the sale, of sexual services.

According to Pro Centre (a NGO service provider for sex workers in Norway) it is not unusual to see 100 women on the streets of Oslo. According to their annual report approximately 50 percent of the prostitutes they encounter have come from abroad, highlighting those from Thailand, Romania and Bulgaria.

One group of prostitutes in Norway are women from Nigeria who, after several years in Europe, have given up the dream that they can make it here. They find themselves forced to work in prostitution in order to provide for family in Nigeria and/or to repay traffickers and others. These women feel helpless and miserable, and many would be ready to return if they believed a return to Nigeria might improve their situation. 

The extent of prostitution in Norway and the lack of deep multiculturalism creates significant issues. In an interview with two Norwegian citizens of African descent, Jessica Kiil and Susan Namuddu,  the interviewees noted:

“Imagine being asked ‘how much’ by men each time you move about Oslo city centre, being called whore by doormen and thrown out of night clubs, taxi drivers turning the light off and driving past you when you try to cath a cab. And if you’re a teenager, you’ll have to take detours to school or look into the ground so as not to be harassed. Just because you have the same skin color as Nigerian prostitutes who up until recently dominated the city scene in the capital. Many have also experienced threats from street prostitutes because they are seen as competitors.”

Sweden?

I was thinking about writing about Sweden but then chose to skip over it mostly because my one interaction with a Swede was a girl in Geneva who had ZERO personality.

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Media studies have shown that 70% of all media coverage of foreigners in Scandinavia is concerned either with crime or social problems. Frequently, such coverage is not only exaggerated and distorted, but is filled with flat out lies. It is rare that a foreigner's race, religion, culture and country of origin is not mentioned, whether or not this information is relevant.

So, in sum. Scandinavia, you are racist, environment-hating prostitute lovers. Too far? Perhaps. But the fact remains that these are far from Utopian societies, and would do well not to become too complacent.