HAJO DUKEN. Australian values

Sep 18, 2019

What a great and timely question Allan Patience asked on P+I on 7 August. Whilst I agree with him that most of the Australian value talk is simply humbug, I feel that, in times of Trump and Brexit, the Uluru Statement from the Heart and raids on the ABC, we more than ever need to have a serious discussion about what the values of a nation in general, and Australian values in particular, are and who determines them.

Leaving aside for a moment the fine differences between ‘values’, ‘norms’ and ‘virtues’, and their interrelations, it appears relatively easy to find plausible definitions for ‘values’. A person’s values may be defined as ‘beliefs about good behaviour’, ‘what things are important to the person’, ‘a collection of guiding principles’ or ‘what conduct one deems correct or desirable in life’. It appears that there is also an inherent element of rank in a person’s values, which then determines which value/principle takes precedence in the event of a conflict. The ongoing debate about criminalisation/de-criminalisation of abortion demonstrates this. Two people may well feel strongly about: the importance of the life of an unborn child; the life and health of the mother; and the reproductive rights and freedoms of a woman. However, their views on which right takes precedence in the event of a conflict (an unwanted pregnancy) may differ fundamentally.

Whilst it seems difficult enough to describe the values of an individual, determining the values of a group of people (a family, tribe or mob) or an organisation (a rugby club, corporation or church) appears even more complex. Is alignment or the buy-in of every member of the group necessary for attributing a certain value to a certain group, or is hierarchy all that matters and the values are determined by those with influence and decision-making powers (parents, elders, boards, executives)? Many people who have ever been in an executive position may remember the endless hours an executive team (or board) can spend on defining the values of an organisation, when in most cases such exercises only result in very generic statements and everybody around the table knows that the result will have no or very little impact.

What does this then mean for the values of a whole nation?

It is certainly arguable that there is no such thing, or that core values are universal anyway and the question of national values is therefore mute. However, if we assume for argument’s sake that certain values can be attributed to a nation or possibly even a group of nations (like ‘Western countries’), which then would serve as a suitable criterion for differentiating one nation/group of nations from another, it may be helpful to agree on a certain approach for identifying a nation’s value before discussing specific values and their (potential) ‘Australianness’.

First, we should not mix up values as they currently stand with values a person or a group thinks a nation should have or pursue. For example, a very special respect for and protection of indigenous culture, way of life and (land) rights could (and many would say should) constitute a specific Australian value. However, would we really agree that this is a fair description of the status quo?

Second, I cannot really see that the actual (positive or negative) conduct of politicians, sport stars or other public figures can be of any assistance in defining the values of a whole nation, however exemplary or despicable the conduct may be.

Third, if the description of a (potential) value becomes too generic to the effect that every person and their dog could agree with it, but different people could easily have very conflicting views on what it means, then it is very questionable whether the term provides a suitable description of a value at all. In my view, ‘fair go’, ‘mateship’, ‘respect’ and ‘tolerance’ may well fall into this category.

Fourth, in order for a value to be attributable to a nation as a whole, one would probably require a level of agreement that goes well beyond anything a government/parliamentary majority could ever claim. Whilst parliaments and governments can and sometimes should initiate and possibly lead the debate about a nation’s values, they cannot be called upon to determine them. What would a determination by the parliament/government of the day (let alone a minister or department) be worth if the next parliament (with a different majority) or the next minister or department head could easily determine the exact opposite?

Many of us would be quick in mentioning freedom of speech, freedom of religion and freedom of the press as core Australian values. However, do the recent raids of journalists and the national broadcaster, the prosecution of Witness K and his lawyer, the ever growing list of defamation cases and the events surrounding the postings of a rugby player not indicate that there is not even a vague consensus in Australia as to what those ‘values’ really mean?

It may be helpful to look at value debates in other Western countries. Whilst pluralist societies/countries seem to have similar debates about values, it also appears that the lowest common denominators differ depending on their respective constitutions. In the US, most people would probably agree (regardless of whether they like the result of the analysis or not) that the almost limitless protection of free speech and the right to carry a gun are defining values of their country. In Germany, the absolute protection of the dignity of every human being (Article 1 of the German Basic Law/constitution), would probably top the list of German values.

The written constitution of a country is indeed the primary source for finding a nation’s values. This is for various reasons.

First, the constitution is the highest law of the land and, as such, binding on all branches of government including parliament. It is therefore immune from the majority of the day, politics and policies of parties and even the public opinion at any given point in time.

Second, written constitutions are generally very difficult to amend. Requirements range from qualified majorities to approval in a referendum. This renders a timeless validity to any constitution which then leads to a very high degree of public acceptance. Even when the public does not fully understand the rationale behind a constitutional provision or considers it outdated (Australia had such a debate in relation to the dual citizenship of MPs and senators), the mere fact that the constitution includes the provision is reason enough to accept it.

Third, every group or movement that pursues objectives that are (potentially) inconsistent with the constitution or the value framework the constitution represents, has a credibility and legitimacy problem. It can relatively easily be accused of wanting a completely different country through system change. In Germany, words like ‘Verfassungspatriotismus’ (meaning constitutional patriotism, which defines the ‘love’ for the country through the ‘love’ for its constitution and its value framework) and ‘Verfassungsfeind’ (meaning enemy of the constitution, effectively characterising a person as somebody outside of the constitutional value framework, almost a traitor), are indicators of a very close connection between national values, national identity and the constitution.

In Australia, our historic ties with Britain and the fact that the Queen is still our head of state, often make us oblivious to the fact that we are a constitutional democracy with a written constitution which (as interpreted by the High Court from time to time) restricts the powers of government, including the powers of federal and state parliaments. As such, our system of government resembles the systems on the European continent and the US much more than the UK system (we may well say fortunately given the current constitutional crisis in the UK).

Our constitution represents both a dilemma and a chance for Australia. The dilemma is that our constitution can be described as incomplete as it lacks many provisions that would be considered standard in modern constitutions around the world, including a bill of rights. On the other hand, should we as a nation decide at any point in time that we want to create or manifest additional Australian values like the freedoms of religion, speech or press, or the recognition of indigenous Australians (with or without treaties), we do not need a revolution or a complete system change as our constitution already provides us with both a framework and a pathway for change. All it requires is courage and leadership to start the process. Until then we may well need to accept it. If it is not in our constitution, it is not an Australian value!

Hajo Duken is a lawyer admitted in Germany and Australia. He lives in Sydney.

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