The secret ballot was an Australian political innovation that now has universal reach, it is only shunned by despots and autocrats. A formal Bill of Rights in a constitution was an American political innovation, which no post-Enlightenment polity should be without. Sadly Australia has no formal enunciation of rights at the federal or state level. A Bill of Rights is for defeating arbitrary government and ensuring equality under the law. It limits government, and emboldens the individual. Australian history is full of individuals fighting for their rights and liberties against government and entrenched interests - a Bill of Rights in federal and state constitutions is entirely consistent with our history and values.

The Secret Ballot

Australia's greatest gift to liberty has been the secret ballot. For many years this was known as the "Australian Ballot" and has become ubiquitous amongst all free democracies. It is the method of voting where voter's fill in their ballots in secrecy, and their ballot paper is contained in a locked box until the closing of the poll. This allows the voter to make an election choice of conscience without intimidation, coercion or exposure to thuggery.

The secret ballot was conceived by Henry Chapman who was a member of the Victorian Legislative Council. Both Victoria and South Australia instituted it in 1856, with New South Wales and Tasmania following in 1858. But the path to the secret ballot was not a easy one. In NSW it was resisted by the existing members of the Legislative Council, more interested in the status quo. Thomas Mort believed it was cowardly to his behind the ballot box, while John Plunkett remarked;

... in this country every man is independent, and in the spirit of independence cares not, and ought to care not, what observations are made as to the way in which he votes. We should, however, be willing to give our votes like men.

The voting methodology in NSW prior to 1856 was to have the voters stand infront of a stage. There was no ballot box, just a table. The voter would hand the electoral officer their ballot, who would read who the vote was for, and then place that ballot in the pile of papers for that candidate. This was obviously in full view of the crowd, who instantly knew who the vote had been cast for. The crowd also knew which candidate was leading at any one time.

Intimidation, coercion and vote stacking were prevalent issues. After the 1854 election in NSW where John Dunmore-Lang, John Lamb and William Wentworth were elected, there was the impression that Wentworth would not have been elected if a secret ballot was held. The People's Advocate wrote;

We have seen men fairly bullied and cajoled out of their votes ... it is of no use to tell us that [the secret ballot] is unenglish and undemocratic.

Prior to the introduction of the secret ballot, election day in Australia was a violent affair which often ended in rioting. The 1843 election in Victoria resulted in widespread property damage, and the death of two people. Another election in NSW became so unrooly that whalers were brought in to subdue the crowd. Rioting continued to midnight with the loss of one life. These were seen as elections that "went off well".

Why No Bill of Rights?

Australia has been wonderfully creative at the electoral level, producing, and implementing innovations such as the secret ballot, preference voting and the Robson rotation amongst others. At the constitutional level, Australia has been woefully paralysed in its ability to innovate. There are several reasons for this lack of dynamicism. The federal constitution is difficult to alter by referendum, but this does not excuse the states. Queensland recently rejuvenated its constitution collapsing multiple bills into a single constitution - but there is not one innovation in the Queensland constitution. This leaves one possible conclusion; the politicians don't want any restrictions on their ability to legislate over people.

At the Constitutional Convention in 1898 the Tasmanian delegation introduced a bill which would protect an individual from tyrannous government. R.E. O'Connor of the NSW delegation argued for the inclusion of this language;

A state shall not deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.

So that any citizen of any portion of the Commonwealth would have the guarantee of liberty and safety in regard to the processes of law, and also would have a guarantee of the equal administration of the law as it exists.

Isaac Isaacs argued against the motion, as one of the ramifications of the bill would be to give protection to the Chinese at both the Federal and State level. Like the argument against introducing a secret ballot, those against enshrining life, liberty and property in the Australian constitution argued that Australians have those rights already and it is not necessary to explicitly enunciate them. O'Connor ended up replying in an almost exasperated manner to these claims;

No, it is not. We need not go far back in history to find cases in which the community, seized with a sort of madness with regard to particular offences, have set aside all principles of justice. If a state did behave itself in that way, why should not the citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn suggested in so contemptuous a way that there could be no reason for this amendment, that I got up to state again what had been stated before.

A key aspect of this proposal was the use of the word "jurisdiction" as opposed to citizen. This would have meant that anyone, citizen or non-citizen, would have those same rights if under the jurisdiction of the Australian or State governments. This would have saved the refugees in Woomera, Nauru and Christmas Island being detained and then hidden away indefinitely for political purposes.

The Tasmanian delegations bill, and O'Connor's modification of it was defeated with 19 Ayes and 23 Noes. No protection of life, liberty or property made its way into the Australian constitution.

Bill Of Rights For Defeating Arbitrary Government

A Bill of Rights is for limiting the ability of government to act in an arbitrary manner. Government has a monopoly on violence through the police and judicial system. With this monopoly comes great responsibility which governments all to often fail to uphold. A Bill of Rights is a protection from the government using their power in an arbitrary manner or to excess. It is for defeating arbitrary government - for defeating tyranny.

Tyranny is insidious and takes many different forms. From the removing of children from families based upon the colour of their skin, to requiring immigrants to display writing ability of a "prescribed language" which was at the discretion of an officer, or when our Migration Act becomes one of men, not laws containing;

Minister not under duty to consider whether to exercise power

(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5) The power under subsection (2) may only be exercised by the Minister personally.

Arbitrary power being collapsed into one individual, rather than a process. This leaves the refugees the option of appealing to the minister, and being subject to her whim.

The new danger is the federal and state government's embrace of the "National Security State". Where security is the defining attribute of the state - not liberty, social cohesion or prosperity. With the national security state is the rise of the "shadow state" where the arms of government act privately, secretly and beyond public review. It is essential in such an environment that an individual be able to face their accusers under the protection of common law.

Fitting Australian History

American history is told in terms of the big node where "everything changed". The War of Independence, the Civil War, the Civil Rights campaign in the 1960s, even the attacks of September 11th. Australia has tried to mimic that style of history telling. As a consequence we have the triumphalism of Federation which attempts to tell the path the "Bearded Men" took as being the same as the American Founding Fathers. It isn't of course. The American Constitution contained the innovation of explicit constitution rights and limitations on government. Something which Australia still lacks.

Australian history isn't big nodal, it contains a constant under-current of individuals fighting for their rights and liberties against entrenched, and often discriminatory interests. Australia has a very noble history, it is one of individuals stamping their feet in the ground and demanding their rights and liberties. This can be seen in Peter Lalor's speech at Eureka, to Mary Lee demanding women's suffrage, to Vincent Lingiari leading the Gurindji people to Wattie Creek. These resulted in massive changes.

Eureka was about the tyranny of the local officials and the government in Melbourne. Raffaello Carboni's book describes in detail the ongoing and escalating arbitrary manner that the miners were subject to. The demands of the Ballarat Reform League found their way into government. Mary Lee's campaign for female suffrage was about equality under the law. She was successful making South Australia one of the first places in the world to include women amongst their voters. Lingiari fought for equal wages, and ultimately for the return of his people's land. It led to the Land Rights movement.

The battle for life, liberty, property and equality under the law are being fought every day by individuals against government and entrenched interests. It is ongoing and never-ending. These individuals need the backing of Australia's highest law to ensure their battles result in just outcomes. Australian history leads to the inevitable conclusion, and our values demand it - the Australian and State Constitutions require a Bill of Rights .

cam

John Howard is astonished at the concern over the sedition laws . He is "at a loss to understand the concern being expressed about the sedition provisions contained in the Government's counter-terrorism laws." The answer is simple, we don't trust government with them.

I don't trust government to make political laws, they are inevitably done with a selfish interest - the outcome is always political retribution and entrenchment of the incumbent.

Howard also said;

I regard a free press as more important to the maintenance of liberty in Australia than a bill of rights. I don't believe a bill of rights works, but I do believe in a free press, and it's a cornerstone of our democracy, but I am at a loss to understand where, in substance, the laws we are now proposing are different from the laws that have been in existence for a long time.

A bill of rights is a restriction on government. It is harder to control than a supple and pliant media. It is because of the self-serving nature of government that we don't have a bill of rights. At Federation, a bill of rights was dismissed, as the "bearded men" wanted the legislative freedom to discriminate wilfully against the Chinese.

The Menzies government sought to define Australia in terms of a pre-WWII identity. It looked to Britain as the Empire, race and foundation of Australian nationalism. By the time Menzies retired and younger politicians such as Harold Holt and John Gorton took over, it was obvious that was no longer a description which could tie the polity together. It was in this environment that Donald Horne and Geoffrey Hutton wrote their arguments for an Australian Republic. Their call was fairly limited, and argued very little in change. It was mainly remove the Queen and Britain as the centre of Australian politics and nationalism. The Australian Republican Movement has adopted this same philosophy, but Republicanism is built on universal values of liberty and governance. The Dutton/Horne view of a Republic is too small for the Australian people to accept.

Single Issue Republicanism

Mark McKenna writes of the Republicanism of the 1960s;

... when Geoffrey Dutton and Donald Horne raised the question of a republic in 1963-64, the parameters of the modern republican debate were already evident. What Dutton and Horne said in the early 1960s did not differ greatly from what republicans would say in the 1990s.

That style of republicanism rested on;

• Australian nationality was not British, and Australia required an Australian head of state.
• The Queen was an obstacle to an Australian identity and perpetuated " a culture of political, economic and cultural dependence ".
• Australian and British foreign policy and economic interests were diverging. A British head of state weakened Australia's identity in these areas in Asia.

Mark McKenna also added the final point that republicans of the 60s and 90s agreed that; " The Australian Republic was inevitable ". Those points mimic exactly the message that the Australian Republican Movement took to the people prior to 1999 referendum. This is a pretty small view of Republicanism, and ignores much of the intellectual ground work done in Australia by Republicans such as Dunmore-Lang, Deniehy, Harpur, Vosper etc. It also ignores much of the development of Republicanism by international figures such as James Madison and Thomas Jefferson. The ARM view of Republicanism suffers a poverty.

Universalism

Republicanism, both Australian and international, carries universal values. The most obvious of these is the absence of political and social privilege under government. A monarchy has no place in a Republic as it entrenches constitutionally the privilege of political and social position. The position of King or Queen is achieved without merit, or periodic popular vote. The main claim to a monarch's position is accident of birth.

With the entrenchment of political and social privilege often comes entitlement, impunity and soon after, tyranny. When Dan Deniehy fought against the bunyip aristocracy and squattocracy he was fighting for universalism, egalitarianism and merit. When Charles Harpur wrote his preface to the Tree of Liberty he was arguing for the universalism of individual virtue and how an unmeritorious political system filled with privilege can pollute that virtue.

Universalism is an Australian Republican value, for after all, Republicans are Democrats too. This principle has often guided the discussions on South Sea Republic. For instance; Avocadia's Bill of Rights does not discriminate on the basis of gender, race, sexuality, or more importantly; citizenship. Individuals under the jurisdiction of a government have universal rights that are a result of their being an individual. There is no privilege attached to being a member of a majority or minority. This is an intrinsic value .

Suffrage is another universal Republican value. I have edited the Electoral Act in a previous article to ensure Universal Enfranchisement . We are both an immigrant nation and diasporic people at the same time. Migrants are constantly coming to Australia and remaining, while at the same time Australians are leaving our shores in ever-increasing numbers to work and live overseas. Neither group should be denied suffrage due to geographic circumstances of birth, or present location.

Other Australian Republicans have argued for a more universal approach; Wayne Hudson argued for Planetary Republicanism while Peter Botsman wrote in the Great Constitutional Swindle that;

... it is important for Australia to make the leap towards a broader concept of citizenship. The global citizen must have roaming rights. He or she must be entitled to certain indivisible rights wherever they may be in the world: a vote of equal value, the right to stand for political office and to advocate a cause or a positions, the right to liberty, free speech, freedom of association and the right to basic social, economic and cultural living standards. If multiculturalism has a positive endpoint it is this one.

I disagree with this final rights to, they are better expressed in liberty, rather than a right to. For instance, you have the liberty to pursue your own social, economic and cultural interests. Rather than guaranteeing a living standard. But other than this, Botsman approaches the issues of the universality of an individual under any government in typical Australian Republican terms.

Head of State

Dunmore-Lang and numerous other Republicans railed against the divine-appointment with a monarch as Head of State. The Australian Head of State poses an issue because of the poor separation of powers in the Australian parliamentary system. Separation of powers is a strong Republican value which saw it expressed in utilitarian form by James Madison in the American Republic.

The Westminster style of embedding the Executive in the Legislature is hack, or a patch, to route around the Executive power of the monarch while maintaining their ceremonial power. It is entirely unnecessary in the Australian system to maintain the monarch, but some fluidity between the constitutional monarchy and republic will need to remain. The Australian Parliamentary system has also proved fairly stable. It would be unwise to throw it all away in a revolutionary moment, far more prudent to adopt an evolutionary approach.

Australians want to elect the Governor-General, but an individual appointed to that position by direct election might clash with the Prime Minister over who has ultimate Executive authority. Currently the Prime Minister advises the Governor-General, but this can lead to what software developers call a race condition. This was seen in 1975 when the Governor-General gazumped the Prime Minister and democratically elected government.

Universalism demands a Bill of Rights which limits government's intrusion into individual liberties is present in a Republican Constitution. Any Parliamentary based Republican system also requires a firm separation of Executive responsibilities between the Governor-General and the Prime Minister. As a result, the Governor-General should be constitutionally required to defend individuals from laws which conflict with the Bill of Rights. The Governor-General becomes a Rights Referee .

This would stop the Governor-General and Prime Minister stepping on each other's Executive toes. It would give the Australian people the reason to vote for the Governor-general based on who will ensure their rights are protected (the GG however can only veto bills which directly contradict the Bill of Rights). The Governor-General becomes an elected representation of Republican and Universal virtue. This is a very positive role model and structure for liberty.

Opposing-isms

The universal values of Republicanism bring it into direct conflict with conservatism and nationalism. Both of which seek to use the legislature to entrench privilege for majorities and minorities that fly in the face of liberty.

A Bill of Rights is constitutionally explicit and brutal language which limits the ability of government to legislate. Such language does not enable rights, it prohibits government from infringing on them. Any legislation which violates the constitutional language of the Bill of Rights can be taken to the judicial arm of government who will interpret the constitutional language to determine if the legislation is valid. A Bill of Rights does not impact social cohesion, national cohesion, nor create conflict. It dictates a sphere of liberty where government is unable to trespass.

John Howard's Australia Day speech contained;

Our social cohesion and national unity is pivotal in enabling Australia to contribute effectively to the international effort to combat terrorism, and to safeguard Australia domestically. This Government will do what is necessary to protect the Australian community, but we will do it in a way that does not diminish us as a community or as a nation. This means finding the right balance between the legitimate interests of the community on the one hand and individual civil rights on the other. And inevitably this will be a matter for passionate debate.

Some Australians have argued in recent times that the balance has moved too far. They want to shift it in the other direction, principally through a Bill of Rights. I believe this would be a big mistake for our democracy. A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society. It would also take us further away from the type of civic culture we need to meet the challenges of today and tomorrow. No matter how skilfully crafted, a Bill of Rights always embodies the potential for misinterpretation, unintended consequences or accidental exclusion. History is replete with examples of where grand charters and lyric phrases have failed to protect the basic rights and freedoms of a nation's citizens.

The only political body affected by a Bill of Rights is the government of the day. It sets areas of individual and civic behaviour off-bounds so they cannot be legislated over. A Bill of Rights does not contain feel-good rubbish like the right to dignity . It is constitutionally brutal , ie;

Parliament shall make no law; the Governor-General shall pass no law; that,

1. detains an individual indefinitely without charge for a specific crime.
2. limits or removes an individuals right to have counsel with them upon arrest or questioning.
3. limits or removes an individuals right to a writ of habeous corpus upon detention.
4. back-dates punitive measures for an offence.
5. permits an individual to be detained for long than six months without trial or resolution.
6. enabling an individual to be tried for an offence more than once.
7. limits or removes an individuals right to refuse law enforcement access to their property, or permission to search their person and property, unless there is a warrant issued to search specific property for evidence of a specific crime.
8. limits, reduces or removes an individuals right to own property.
9. deprives the individual of property, or devalues an individuals property without fair exchange or consent.

Those examples were permutations of Avocadia's Australian Bill of Rights phrased in a negative manner toward government. Take the second one for example. The government can make no law which deprives an individual from having a lawyer with them when arrested or being questioned. That is simple. It is a limitation on government. That is what a Bill of Rights is for.

Earlier in the speech, John Howard appeals to the progressive nature of the Enlightenment. The American Republic was the triumph of the Enlightenment. It put many of the liberal philosophies and thought into practice. The two main innovations were the heavy separation of powers and the Bill of Rights.

John Howard's progressive support of the Enlightenment ends where it limits government and favours the individual. In this he is not unlike the Bearded Men. Apparently Andrew Inglis-Clark's first draft of the Australian Constitution contained a Bill of Rights which was removed once Samuel Griffith got his hands on it. The reason? The federal government wanted the ability to discriminate against the Chinese in Australia.

The rights of an individual are paramount. They are not a privilege, nor are they granted by accidents of birth and geography. They are the function of being human - an individual under the jurisdiction of a government. Australia needs to catch up to the political innovations of the Enlightenment, and put in place a Bill of Rights that contains brutal and explicit limits on government. Liberty demands it.

The meaning of the word security has changed in the last decade or so. Where once it meant stability in defence from the Hobbesian nature of international relations; it has been turned inward to focus on domestic security. So much so that recent op-eds in the Washington Post have made the claim that a city that is not secure - is a failed one. Where once war was deemed an emergency period, with terrorism, Governments have claimed a permanent domestic emergency. This is at odds with Australian Republicanism.

John Locke is one of the most influential writers of Liberalism. His writings directly influenced the founding of the first post-enlightenment Government in the Unites States of America. At the James Madison's Montpelier , one of the most prominent displays is a glass encased copy of Locke's Two Treatises of Government .

Arbitrary Government and Tyranny

Locke's second book contains sections on tyranny and resistance.

... whenever legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves in a state of war with the people, who are thereupon absolved from any further obedience, and left to the common refuge, which god has provided for all men, against force and violence.

The keyword in that paragraph is arbitrary . The point of liberal democracy is law and order. Once government acts in an arbitrary manner toward those under its jurisdiction then it has broken the bounds of the constitution which describes the limits of executive and legislative authority.

Tyranny does not need to be absolute to be destructive; it only needs to be insidious to pollute the polity, society and economy. Recent legislation from the Australian government has placed into law the ability for Ministers in the Executive Cabinet to act in an arbitrary manner.

An example is the Migration Act ;

Minister not under duty to consider whether to exercise power

(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5) The power under subsection (2) may only be exercised by the Minister personally.

When that prerogative is exercised we cease to become a nation of laws, and instead become a nation of men. Arbitrary government inevitably leads to tyranny and kleptocracy, the two most destructive forms of social organisation .

If The Constitution Is Breached

Locke writes that if the government succumbs to the negative passions of arbitrary government then resistance is permissible;

by this breach of trust they [legislators] forfeit the power, the people have put into their hands, for quite contrary ends, and it devolves the people, who have a right to ensure their original liberty, and, by the establishment of a new legislative, provide for their own safety and security, which is the end for which they are in society.

In that paragraph he advocates establishing a new legislature as the old one which has fallen into arbitrary government has lost their authority by their actions.

The national security state is an alignment of the executive, legislative and judicial that can act outside of the constitution and normal legal processes when the government believes an emergency exists that threatens the complete political and social order.

Giorgio Agamben has called this homo sacer ; when an individual is reduced to bare life, without legal or civil rights. The Tampa Affair is an Australian example of the national security state and homo sacer combining to produce an inferior and arbitrary outcome.

Refugees were pitched to the electorate as not only an emergency, but also a security issue. The media images conferred with this political portrayal of the event by a five hundred million dollar Australian Navy frigate pulling refugees out of the water.

The threat to Australia's sovereignty by this small number of refugees was so high that we paid large sums to neighbouring nations and islands to keep them outside of Australia. As part of the Pacific Solution in 2002 we payed 48 million to Nauru and 29 million to the PNG.

The refugee issue also led to the Migration Act Amendment which was quoted above in the article describing arbitrary powers being conferred on the minister overseeing immigration.

Australian Republicanism and homo sacer

Australian Republicanism is predicated on legal equity amongst all individuals under the jurisdiction of the government. It does not discriminate between citizens and non-citizens, or minorities and majorities. If you are an individual under the jurisdiction of the government your legal and civil rights are not only secure, but uniform amongst all individuals.

This philosophy can be seen in Avocadia's Australian Bill of Rights ;

I have the right to all rights expressed herein if I am an individual who is a citizen of Australia, if I am an individual within the jurisdiction of Australia, or if I am an individual held by, or in the charge of any individual, group or organisation that is a citizen of Australia, incorporated within Australia, trades within Australia, or is commanded by the Australian government.

While liberalism defines rights as natural and a component of being human - which they are - they can still suffer under the coercive and corrosive power that government wields with its monopoly on power. Republicanism seeks to formalise the legal and civil rights in not only the constitution but the political framework of government. This is the Madisonian and Harpurian republic at work.

Under Australian Republicanism a failed government is one that;

• does not dictate the rights of all individuals from arbitrary government in the constitution. (See Avocadia's Bill of Rights)
• whose legislative does not stop the executive from acting outside of the constitution.
• whose executive does not stop the legislative from acting outside of the constitution.
• impedes individuals from stopping the legislative and executive acting outside of the constitution.

In all these areas the Australian and State governments are not constructed to provide for these outcomes.

Charles Harpur believed fully in the virtue of humanity and for the faith that is in them . Harpur saw the inequity, kleptocracy and burdens that governments place on the people, banishing them from achieving from their full potential.

For instance in a kleptocracy simply travelling requires paying bribes galore. In an aristocracy there is a tax burden simply to maintain the aristocrats and their non-meritorious social and political structure. Even liberal democracy carries its burdens when implemented inefficiently which we are starting to see with governments acting under an overly-centralised national security state.

The impositions are real and significant.

Australian republicanism believes that political, social, cultural and economic prosperity is achieved at the point of highest interdependence between individuals. That point is maximum liberty.

Australian Republicans seek our political, social and economic structures to align as maximum liberty so individuals can achieve individually or collectively as they choose without harm, imposition or coercion.

cam

Wibble. Wibble wibble wibble. <this is me imitating commentry on a Bill of Rights by the Right>

Piers Ackerman's editor wrote in the Daily Telegraph today:

ATTORNEY-General Bob Debus is working to erode the power of the state's elected representatives and give the un-elected judiciary the power to make the law.

Daily Telegraph, 28/March/2006

The editor did us a favour, because now we don't need to actually read what Ackerman wrote. We already know it is profoundly flawed, chock-full of what can charitably be described as mendacious bullshit.

Such a charter would strengthen the hand of those who want to see a national bill of rights introduced, paving the way for the same litigation-rich culture as prevails in the US and providing ambulance-chasing lawyers with a huge bonanza.

I'd love to read a breakdown on litigation by tort lawyers, paying particular attention to what percentage is based on the first ten amendments. I'm going to go out on a limb and make a rough, rough guess - not fucking many.

As environment minister six years ago, he was associated with a particularly questionable land-swap scheme in the Blue Mountains.

Highly relevant as ever.

Any casual observer of the US or fans of such popular television series like Law and Order would be fully aware of the pandora's box opened by the US Bill of Rights.

What can you say to that? What? What can you possibly say to a man who uses a television show as an discussion point in a debate. You can't; merely by bringing it up, Ackerman has reduced the whole argument to farce. Argue the point and you merely lend it a veneer seriousness.

You just can't argue with this stuff. The whole premise is based on the idea that judges - unelected judges, no less - will suddenly be given the power to legislate, to create human rights out of whole cloth to smack down the legislative body and rule Australia like rough-trade-cruising, homosexual kings. Kings, I say!

Almost every dictatorial and authoritarian nation in the world boasts of a bill of rights because such codes can easily be thwarted.

The mal-logic is just breathtaking. A bill of rights grants to the people liberty from interference from government. Piers tells us that governments are perfectly capable of policing themselves, we don't need (unelected) judges doing it. But rights bills unenforced by a judiciary are routinely thwarted by dictators.

Why bother continuing? At least he didn't mention common law. I guess even he has some shame; he can hardly mention common law protections in the same article as he mentions  one of his (and mine, admittedly) bugaboos, the Victorian Anti-Discrimination laws where common law and the legislature have so ably protected freedom of speech laws.

The standard argument is that a Bill of Rights gives veto power over legislation to the judiciary. The framing is that of elected versus unelected. The people are just popcorn-stuffing spectators to be appealed to, presumably with bread and circuses.

All of us who are democrats at heart should worry about a provision that tells the unelected judges to do whatever they can to read any other statute as consistent with their view (not the voters' or parliamentarians') of what some abstract moral list requires.

Allen, 2006

James Allen frets that a legislature has allowed the judiciary to wily-nily rule on constitutionality of legislation. Never mind that the only court that can rule on constitutional issues is the highest court. Never mind that there are bills of rights and then there are bills of rights. There are bills of rights like New Zealand's; an arse-backwards granting of rights to the people from the state. Then there are subtractive bills, bills that clearly tell the state that the people do not permit them the power to legislate certain aspects of life.

It is this second variety which is hand in glove with every evolution of English and Australian law. The Great Charter, the various victories of Parliament over the monarchy, the ultimately triumphant Chartist movement, even the extension of suffrage; they are marked by a devolution of the source of the state's power. This is what a bill of rights is, it is the people - the source of the state's power - telling the state where it has no business.

The framing of the debate as unelected judges versus the elected legislature ignores the people. It pretends that the judiciary and the parliament are in some permanent squabble, tussling over a power that exists in its own right, without source, as if divinely provided. It pretends that Australia follows some Nouveau Régime where the executive council, with the consent of the judiciary and the senate, occasionally permits an impotent parliament to offer advice that can and will be ignored. There is no Divine Right of Prime Ministers. The state governs at the sufferance of the people and the people have the right to deny the state power. One last point. The bill of rights that commenters should be talking about - the US Bill of Rights - is as much as their Constitution the result of the people re-asserting that power is sourced from them. The means they exercised were the last resort - ultima ratio plebum if you like - but we shouldn't have to follow suit. Nor should we be content with the first kind of rights bill, that "permitted" us by the state. So in that sense, I find myself agreeing with one paragraph, even if my agreement comes with a sardonic curl of my lip.

One last point: in Victoria the voters themselves didn't get a referendum to decide whether they'd have a bill of rights; the Government decided that for them. So much for the "right to take part in the conduct of public affairs". Any bets on who would have won that referendum?

lo! A statist complains that the state is overstepping its bounds by creating sweeping legislation without the support of the people. Next thing you know, they'll be creating legislation that affects him! Surely there must be some remedy for this. Perhaps some document that subtracts powers from the legislature in order to protect the people and the rule of law from zealous statists. All we need now is a name for this hypothetical document.

If you have a look at a site called 'Freedom House' , and then have a look at the country entry for ' Australia ', you will see that there are 3 divisions; 'Free', 'Partly Free', 'Not Free'.

Australia is listed as 'Free' (thanks guys). On this I mostly agree. We are freer than our northern neighbours in SE Asia (Why then would we want to consider ourselves 'part of Asia' Mr Keating?).

I do however feel that we achieve a level of freedom somewhat less than the ideal. Don't get me wrong there, I have worn the uniform of this country, I believe the political institutions of this country work reasonably well, but it could be better.

That site, which looks to reasonably objective, says some good things about Oz;

...Australia is a constitutional democracy with a federal parliamentary form of government. Citizens participate in free and fair multiparty elections to choose representatives to the parliament...

and;

...Australia is regarded as one of the least corrupt societies in the world and was ranked 9 out of 146 countries surveyed in the 2004 Transparency International Corruption Perceptions Index...

But it also says things that could be problematic in later years;

...The constitution does not provide for freedom of speech and of the press...

...The rights of assembly and association are not codified in law...

What do the likes of me think we should do to fix things?

Firstly, note I support Australia being a Republic. We DO NOT need to be a Republic to enjoy our freedoms. However, the wrong model for a Republic could reduce our freedoms - and I believe the 1999 model was a wrong model - that model would have made the President (or GG) simply a creature of Parliament's choice, not as he/she could be - a final guardian of the people's interests.

Secondly, We need a potent Bill of Rights. Not one that is filtered and vetoed by minority interest groups, but one which entrusts and empowers true citizens in a participatory democracy.

Thirdly, We should adopt the tools of Direct Democracy ; Initiative, Referendum, and Recall, so that we can formulate, or strike down laws by a petitioning and majority vote process (Initiative), and call to account politicians and officials on the public payroll to give account of their actions, and remove them from office by majority vote (Recall). Referendum we already have, but it could be fine-tuned.

We should also demand that we have a 'State of the Nation' report annually (or immediately prior to an election), where the head of government reports on the Nation's balance sheet, civil health (crime, economic indicators) and how they plan to address challenges identified especially in the medium to long term. They should also set out their legislative plans for the next year.

None of these things are revolutionary ideas. They all currently work, and have for some time, in places like Switzerland and the US. They should be part of the debate on this nation's plans for it's future.

(This article is reformmated from my Blog entry ; 24May06).

There are two competing dominant political forms in liberal democracy, these are the individual and the state. Political philosophies can be divided along these lines. In Australian Republicanism, the individual is the dominant, indivisible and discrete political entity.

Conservatism and Nationalism as political philosophies elevate the state to the dominant form of political authority.

Conservatives see the history, culture and ethnic memory of the political majority as providing sustenance, and nurturement for the individual.

Under conservatism, the nation-state becomes dominant over the individual, as the cultural will and majority, expressed through government becomes more important than an individual.

In the conservative framework, an individual who upsets the apple-cart of ethnic, cultural and political memory is dangerous and acts outside of the political system of order.

For this reason, conservatives can view the rights and perpetuation of the state as being more important than individual rights.

A similar political narrative arises with nationalism. The nationalist philosophy elevates the nation-state to dominance over the individual. As a consequence the nation-state can act in a repugnant manner to an individual in order to ensure its own perpetuation as the dominant political entity.

Laws for sedition is a good example of this. They are meaningless laws in a system were the individual is dominant.

Another example is citizenship which is used by conservatives and nationalist as an exclusionary system of legislative discrimination. Citizenship as it is practiced today by nation-states can only come from a system where the state is dominant over the individual.

The philosophies where the individual is the dominant political entity are liberalism, libertarianism, progressivism and republicanism.

These all stem from the political roots of liberalism even though they use different language to describe the individual's dominance. For instance libertarians talk of individual rights, progressives of human rights and republicans of natural rights; which means the same thing.

Under republicanism the just basis for an individual consenting to be governed is that there is a sphere of liberty that cannot be trespassed on by government.

The state must always justify any restriction on the action of the individual with the default form of consent from the individual being presumed as the negative.

The basis for consent is predicated on the complete absence of tyranny in government. The constitutional and statutory structure must be developed into the most efficient organisational form to ensure that outcome.

An inefficient form of social and governmental organisation is in conflict with republicanism. Especially ones that entrench social, political and executive privilege. For instance a monarchical arrangement is repugnant to republicanism, as is a constitution without enumerated rights.

Republicanism is founded on natural rights. These are a function of being an individual and human. The consequences of this philosophy makes citizenship a universal aspect of interaction with the state. Natural rights establish universalism as a strong principle in republicanism.

A common question asked of political rights is where do they come from and how are they granted. There are several different justifications for the inclusion of rights in a constitutional system. These vary slightly depending on how the political philosophy views the individual.

Since the enlightenment focused social endeavour on individual autonomy as the primary source, the notion of universal political rights have risen. This is present in republicanism, liberalism, libertarianism and progressivism. All these political philosophies focus on the individual as the dominant political entity.

Republicanism views the purpose of government as ensuring the liberty of the individual. Tyranny or despotism has no place in a republican system. The rights or just demands of an individual's agreeance to follow the will of the majority in a government system come with the assurance of freedom from tyranny or arbitrary government.

A bill of rights becomes a political technology that ensures the liberty of the individual and describes tyranny. It creates a sphere of exclusion for government that it cannot legislate over.

As covered in a previous article, Dan Deniehy took a natural rights view of republicanism. This describes moral perfection as the end result of human achievement, maturation and growth. Deniehy writes that tyranny and despotism are the dominant affliction against this purpose.

Consequently the tyranny becomes a crime against mankind's destiny - a crime against nature. This is a non-religious argument for natural rights. The religious argument for natural rights is quite simply that rights are granted by God. This is less sophisticated than Deniehy's argument and reliant on faith.

Progressives view rights as an intrinsic function of being human. For this reason they are often called Human Rights by the progressive movement. The progressives view rights as being greater than the simply eradication of tyranny and protection of liberty as republicans do and often include more ambiguous rights of a social nature such as the right to dignity or the right to education.

These are fine principles to maintain, however, they do not have a place in a constitutional document as they are nearly impossible to quantify. For instance writing brutally explicit language on the right to dignity is impossible.

Libertarians view rights in terms of the intrinsic value of the individual. This philosophy often terms them individual rights. Libertarianism does not have the same focus on tyranny as republicanism does and is merely interested in the primacy and dominance of the individual as a political being.

Of these justifications for rights I believe the republican definition to be superior. It is constitutionally achievable through explicit constitutional language and separation of powers.

The focus on the eradication of tyranny and political equity are important principles in democratic and representative systems.

Under republicanism rights are a very essential political technology which better serves the protection of liberty from arbitrary government.