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 .

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One of the great Australian contributions to liberal democracy is the secret ballot . Originally implemented in Victoria and NSW, this technology spread throughout democracies and became known as the 'Australian ballot'. The secret ballot is now a necessity for any democratic election to be judged legitimate, fair and just. Consequently, it is good to see blind and visually impaired Australians having the democratic right to enter a secret ballot paper into the federal ballot box.

The Joint Standing Committee on Electoral Matters in their inquiry into the 2004 election included in their recommendations;

The Committee recommends that a trial of an electronic voting system be implemented at an appropriate location in each electorate to assist blind and visually impaired people, who currently cannot cast a secret and independently verifiable vote.

a) In terms of the type of electronic voting system, and the most appropriate locations, the AEC should liaise with relevant groups, and then report back to the Committee with its proposal.

b) Following the election, the AEC should report back to the Committee on all aspects of the trial.

It appears that the Federal Government is acting on this recommendation. The Blind Citizens of Australia have been an advocate for secret ballots for the vision impaired. From their submission to the JSCEM;

Blind Citizens Australia argues that the current federal voting system is discriminatory because it does not allow people who are blind the right to cast an independent, secret ballot.

To remedy this explicit inequity in the federal voting system, Blind Citizens Australia advocates for the introducing of Electronic Assisted Voting (EAV) in all future Federal elections.

This decision by the federal government hasn't been the first attempts to independently involve vision impaired voters, the Victorian Electoral Commission has run special ballot centres with magnifying glasses and braille ballots in the past.

The Braille ballot is interesting ;

Braille ballot paper templates were developed by the VEC and Vision Australia designed to enable a Braille user to cast a secret vote. The template took the form of a cardboard facsimile of the ballot paper embossed with Braille text that exactly reproduced the printed text.

The boxes next to the candidate's names were cut out to enable the voter to mark their choice on to the ballot paper. Braille users were provided with a Braille Instructions Sheet, and Key to Candidates.

The election official handed the voter the ballot papers clipped behind the templates, and the voters then marked the ballot paper with their choices using a pencil or stamp, and deposited them in the ballot box.

The ACT has also used EAV's or Electronically Assisted Voting which is basically a non-networked PC-like computer with technology add-ons for vision impaired voters. This printed out a ballot which the voter then put in the ballot box.

Some of the simple innovative ways that the VEC and ACT have come up with to fully involve blind and vision impaired voters in the secret ballot process show a good commitment to legitimate democratic outcomes.

This is a good thing.

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