Australia’s constitution based on outdated view of world
Australians are taking their public rights for granted and are way behind other Western democracies, experts have warned.
National
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Australia was governed by a “she’ll be right constitution” that ceded absolute authority to governments, restricted the public’s ability to hold them to account and was no longer fit for today, a panel of the nation’s leading academics have surmised.
And most people would not realise how restricted in free speech and freedom of public expression they were in their “Lucky Country” bubble compared with other Western democracies.
The Australian National University podcast panel address on democracy and Australia’s Right to Know said while there was self-interest now to media’s push for law reform, the time was right for a broader debate.
The ANU’s National Security College doctoral scholar James Mortensen said Australia’s constitution was very much a “she’ll be right constitution” and took a lot of things for granted.
“We have all been allowed to be the Lucky Country by virtue of circumstance but now circumstances are complicated enough and the world has moved on enough, that simply allowing ourselves to be guided by this is not enough,” he said yesterday.
“We have got away with having a constitution that doesn’t protect free speech, that assumes the best of government and presumes the best of the state of our condition but the world has become complicated and we can’t take that for granted any more and we have to proactively start managing and legislating to make sure that whether we become less lucky we are still looked after or even the bulk of us stay lucky but people within our system don’t get left behind.”
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He said the 75 security-based law changes post 2001 was outward looking and assumed everyone would do their job but did not afford other public protections.
“Put simply at the moment we have given the government responsibility to protect its citizens absolute power, we have legislated for the rainy day without going back to basics and understanding and appreciating concretely, what this government responsibilities are to its citizens when the weather is fine. Any amount of tweaking or sledgehammer legislation is not going to help.”
Zoe Robinson, ANU political science professor and professor of law at DePaul University in Chicago, said she found it interesting ordinary Australians assumed they had freedom of speech and press freedom.
“We don’t,” she said. “Australia is the only western country without a bill of rights, would that be a universal panacea for this issue no absolutely not … in terms of free speech here compared with the United States one, we don’t have free speech two, there’s significant limitation of our ability to criticise public officials in Australia that doesn't exist in the US or other western countries.”
She added American defamation law had to prove malice to prosecute and the US also had a public interest test which Australia did not and consequently that “chilled” the press writing about public officials and national security.
ANU public policy fellow and economics professor Quentin Grafton said he believed Australians did care and were concerned. He said it was perfectly acceptable to have national security legislation but it had gone too far and the public had a right to question what’s going on when a government sought to implement the laws against best advice.
In an unprecedented action, Australian media companies last fortnight launched a campaign to reform laws to give the public more information and afford protections to journalists and whistleblowers.