Australia is the only common law country with neither a constitutional nor federal legislative bill of rights. Only a few rights are constitutionally protected. For the most part, we have all the rights that Parliament and the common law have not yet taken away.
The Covid pandemic has laid bare important realities – some good, some bad: the veneer of civilisation is thin, at least when it comes to panic buying; shelf-stackers and checkout operators, and cleaners, aged care workers, nurses, truck drivers and teachers are vital – but badly paid and treated; many of us – perhaps most – are only an employment or health crisis away from the whole Lego tower coming down; and welfare and other safety nets are not just for the 5%.
Last month, a Canadian anthropologist, Professor Wade Davis published a challenging article “The Unravelling of America”. It makes a compelling case that the United States is in serious decline and has been for decades. I accept that analysis. But given the obvious leadership of the US in so many fields that is a surprising conclusion: think of its great universities and cultural institutions, leadership in medical, pharmaceutical and other scientific research, IT, space, finance and business. Think of Amazon, Google, Facebook, Microsoft, Apple and Elon Musk’s Tesla.
Davis attributes the decline of the US largely to problems of values:
“More than any other country, the United States in the post-war era lionized the individual at the expense of community and family … What was gained in terms of mobility and personal freedom came at the expense of common purpose.
“But when all the old certainties are shown to be lies, when the promise of a good life for a working family is shattered as factories close and corporate leaders, growing wealthier by the day, ship jobs abroad, the social contract is irrevocably broken. For two generations, America has celebrated globalization with iconic intensity when, as any working man or woman can see, it’s nothing more than capital on the prowl in search of ever cheaper sources of labor.
“The American cult of the individual denies not just community but the very idea of society. No one owes anything to anyone. All must be prepared to fight for everything: education, shelter, food, medical care. What every prosperous and successful democracy deems to be fundamental rights — universal health care, equal access to quality public education, a social safety net for the weak, elderly, and infirm — America dismisses as socialist indulgences, as if so many signs of weakness.”
If Davis is correct, a country’s values are extremely important.
In March this year, the Australian Department of Home Affairs published the latest version of an “Australian Values Statement” which it said summarises “the values that underpin our society”. Applicants for permanent visas are required to subscribe to the Values Statement. It includes the following:
“Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good.
“Australian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background.
“I understand that, if I should seek to become an Australian citizen … Australian citizenship involves reciprocal rights and responsibilities. The responsibilities of Australian citizenship include obeying Australian laws, including those relating to voting at elections and serving on a jury.”
I subscribe heartily to the Australian Values Statement, as far as it goes.
However, while the Values Statement has a lot about obligations, it says nothing about the rights of Australians. Australia is the only common law country with neither a constitutional nor federal legislative bill of rights. Only a few rights are constitutionally protected in Australia. For the most part, we have all the rights that Parliament and the common law have not yet taken away. We need a Charter of Rights along Canadian lines.
The Values Statement is also silent on what we should be able to expect from our governments. Governments should have obligations to us just as we have to one another and to the community collectively. Our governments should be explicitly obliged to defend and protect the same values as are set out in the Values Statement, and more.
They should have a duty to act lawfully – often they don’t. They should be required to promote freedom and dignity of the individual, respect for the rule of law, equality, egalitarianism, mutual respect, tolerance, fair play and compassion for those in need. Governments should be required in their own dealings to exhibit those values. They should be required to pursue the public good – to be trustees of the public good.
Interesting is the statement that Davis makes about what “every prosperous and successful democracy deems to be fundamental rights — universal health care, equal access to quality public education, a social safety net for the weak, elderly, and infirm”. While Australia performs well on some of those, passably on some and poorly on others, none is protected as a right in Australia – as they are in some comparable countries. They should be.
Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).