Pearls and Irritations

It will probably shock most Australians but the political system which they take for granted to be a democracy capable of safeguarding their and their kids’ interests is hardly a democracy at all.

The reality is that the “democracy” we live in is a very limited one because it is governed by a Constitution under which laws can all too easily be made that completely undermine our fundamental human rights and, through that, our chances of achieving an acceptable degree of wellbeing and security for current and future generations.

Most Australians are not familiar with our Constitution. In fact a recent survey has shown that 50% of us don’t even think we have one. We do, of course, but it is not one that enables the making of laws capable of safely securing the social and ecological systems we depend on for continuance of humans as a sustainable species or as peaceful societies.

In the main, Australia’s Constitution does little more than say which level of government can make what types of laws. It defines the matters that each level of government may make laws for but provides no guidance on what would constitute a good or bad law for a democratic society. In effect this means that as long as each level of government uses its power to make laws for things it may rightly make laws for, it doesn’t matter whether those laws are in the public interest. And it doesn’t matter if those laws are abusive of universal human rights or destructive of a liveable planet.

The fact is that under Australia’s Constitution lawmakers can pass laws that make it possible for the state to do things to us and the planet that, as members of what we think is a free society, we would find abhorrent. They can make laws to take our kids away, to put them in jail indefinitely, to conscript and send them to wars when we haven’t been attacked, to engage in propaganda for war, to extinguish any and all other species, and to approve activities capable of causing catastrophic climate change. It is possible under the Australian Constitution to remove any and all human rights regardless of whether it is in the interest of individuals, groups, or the nation as a whole. It is possible to deny Australians the right to wellbeing, safety and security both now and in the future. Indeed it is possible to deny them the right to life. It is possible to make laws to create hell on earth.

Australian parliaments can make laws that are anathema to our sense of our political, civil, economic, social and cultural rights and these laws probably couldn’t be struck down constitutionally. We have seen this in recent cases such as where the federal government successfully appealed in 2022 against a high-profile court decision that had found the federal environment minister had a duty of care to protect young people from the climate crisis when assessing fossil fuel developments. Laws and administrative decisions by executive governments (such as coal mine approvals) which needlessly kill us or will grievously harm our kids are not unlawful and cannot be made so – because our Constitution provides no basis to make them so.

And again, although it may shock, laws which can extinguish the right to vote are also not unlawful. In fact, Australia is the only country in the world with a Constitution in which the right to vote can be extinguished on the basis of race.

All up, it may reasonably be said that constitutionally our political arrangements would verge towards the opposite of what we would take for granted as the structure of our society. They approach autocracy more than democracy, subjection more than freedom, political inequality more than “one vote-one value”, and disempowerment more than a fair go.

This is an Orwellian nightmare that, despite the fact that it has become more terrifying over the last two decades, is one we are being encouraged (or forced) to sleep through. Governments studiously avoid bringing our lack of rights to our attention. Even so, our sleep is being newly disturbed for many in the 2020s by pervasive images of extinction. These are images of environmental destruction against which our political system – our stunted form of democracy – seems and is ineffectual.

It is, however, possible to change that system to make democracy far more effective in safeguarding the public interest. This can be done by building a Constitution which as a minimum finally enshrines certain human rights that have always been denied to us. Australians do not have the economic, social and cultural rights that are absolutely necessary for their safety and that of the next generations. The proof of this could been seen if we follow through on a scenario of what would no longer be possible in lawmaking if we had particular rights that are theoretically available to us in international law but not practically and securely available to us in our domestic law.

Imagine if all Australians had rights that do exist for other nations under the International Covenant on Economic, Social and Cultural Rights to safe and healthy working conditions, freedom from economic exploitation, an adequate standard of living for themselves and their family, including adequate food, clothing and housing, continuous improvement of living conditions, freedom from hunger, and the highest attainable standard of physical and mental health.

Imagine if Australian children had rights that do exist for children in other nations under the International Convention on the Rights of the Child – rights to the protection of the state, to the highest attainable standard of health, to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, and to protection against all other forms of exploitation prejudicial to any aspects of the child’s welfare. Imagine too that governments were obliged by law (as they are under all the core human rights treaties in international law) to recognise these rights and their obligation to take all appropriate measures to implement them to the fullest extent possible.

And then imagine if Indigenous Australians had rights on an equal basis with non-Indigenes to the enjoyment of the highest attainable standard of physical and mental health, and rights to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. These are rights enjoyable by other Indigenous nations around the world but not here. The Australian government is not obliged by law, as other governments are, to consult and cooperate in good faith with Indigenous peoples through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.

The Australian Constitution enables our governments to escape all these obligations. Laws which violate the universal rights of humans in Australia are lawful here because our Constitution does not prevent the violations. But were those rights to be at last enshrined in our Constitution, governments would be unable to make laws which unjustifiably diminish access to those rights and courts would be able to reject the constitutionality of any law which does so.

Laws which make ecocide illegal are desperately needed in Australia and across the world before climate change seals the fate of future generations. And all legal systems should have full capacity to ensure laws protect that most fundamental of rights – the right to life. With a Constitution that enshrines all universal human rights, Australia can make ecocide and planetary destruction through climate change illegal. As such, in their waking hours, Australians should clamour for enshrinement of all human rights in their Constitution lest we turn the nightmare into a reality.

For more information on how universal human rights may be enshrined in Australia’s Constitution see The People’s Constitution: the path to empowerment of Australians in a 21^st democracy.

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