I just added this point to my human rights page. I’m still thinking about the final wording – but this is my draft for now.
6. Australia’s model: the Constitution guarantees enough basic rights to ensure our democracy does the rest
We have some rights in our constitution, but it is minimalist on rights which leaves the majority of interpretation of human rights to our democratic representatives. We have just enough rights to guarantee our vote, property, trial, religion, and freedom from prejudice based on which State we’re from. (An archaic right important during Australia’s Federation bringing together a bunch of disparate colonies into one nation.)
But the bottom line is this. Where Americans argue that their Bill of Rights protects them from government overreach, I would argue that a Bill of Rights is government overreach from one generation seeking to bind all generations to come to their vision of human rights.
EG: In one historical context Americans valued the right to carry firearms. But now so many Americans are being murdered each year maybe they would like the right to vote against widespread gun use? Maybe they would like whole categories of guns made illegal, and have a huge government sponsored buy-back of all the illegal weapons? Except they can’t. The Supreme Court will not allow it – their very right to vote on this issue is locked up in the Bill of Rights and not touchable by something as small and petty as the will of the people!
But in Australia, we had the Port Arthur massacre and the government of the day banned many categories of fast reloading weapons, ran an enormous gun buy-back program, and we haven’t had a gun massacre since!
Australians generally accept this ruling – and tend to be proud of our anti-gun stance. A small number might disagree – but the vast majority support it. I like being in a society where I am 19 times less likely to get shot than America!
But guns are not the issue – who decides is. I have a right Americans do not have – the right to vote for or against guns, RBT, or a host of other issues of the day. Voting means the right to talk about and campaign for a whole host of specific policies we might love or hate. It’s not perfect – and Australia has many areas of prejudice and aboriginal health and human rights to address. But did America’s Bill of Rights fix this? Did it give African-Americans protection against Jim Crow and segregation all those decades? Or what about police brutality now?
Managing human affairs is not an exact science. We are often trying to compromise to have the ‘least bad’ society to live in. It might change down the track – but that’s a good thing. It acknowledges that human beings run imperfect systems and do not have all the data all the time. If we don’t like something that gets decided, we’ll let our politicians know the consequences and if they don’t change it – we’ll vote for the other team. That’s why the top 4 fundamental rights are so important. (I hardly think point 5 is an issue today.) They guarantee that our basic democratic functions can work – and then we can decide everything else. Together. As it should be – not encoding the silly blind spots of our generation to trap future generations for centuries to come.
There are five explicit individual rights in the Constitution.
- These are the right to vote (Section 41),
- protection against acquisition of property on unjust terms (Section 51 (xxxi)),
- the right to a trial by jury (Section 80),
- freedom of religion (Section 116) and
- prohibition of discrimination on the basis of State of residency (Section 117).
The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.
Australia’s common law was inherited from the United Kingdom. Common law is often called ‘judge-made’ law. This distinguishes it from laws made in Parliament. As well as common law, United Kingdom law includes the Magna Carta of 1215 which was probably the first human rights treaty. Student and teacher resources about the Magna Carta are available here: Magna Carta – the story of our freedom. 800th Anniversary (2015).