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Australian Democractic Beliefs; The Ideal of Free Speech and Equality Contrasted with the Reality

Many migrants come from countries where differences of opinion are resolved with an axe to the head or the firing squad. In the hope that these migrants may resist the temptation to import such conflict resolution techniques into Australia, study guides for the Australian citizenship test and the pledge itself try to promote an ideal that Australia is the land of democratic civil discussion where differences of opinion are embraced.

Specifically, the test requires that migrants know that the power of the government comes from the Australian people, that laws need to be obeyed and applied equally (regardless of religion, profession or power), that social change should come about via non-violent means and that people are free to act however they want provided they do not break Australian laws. Furthermore, the test requires that migrants know that Australians have freedom of expression, that Australians have freedom of association, and that Australia is secular so that the rules of law prevail over the rules of religion. Finally, the test requires that migrants know that Australia has laws that demand that people are not treated differently on the basis of race, age or gender.

In truth, Australian laws are far more contradictory that the study book implies. In contradiction to the ideal, Australians have no legal right to free speech; however, the Australian constitution has been interpreted as implying a right to free speech as being necessary to make informed decisions in the democratic process.

Despite having an implied right to express an opinion, there is no legal protection against suffering negative consequences as a result of expressing that opinion. For example, on Anzac Day 2015, SBS sports reporter Scott McIntyre took to Twitter to caricature Australian soldiers as rapists, terrorists and war criminals. Furthermore, he caricatured anyone who paid respect on Anzac Day as gamblers, drunks, uneducated and white (like himself). In his own words,

"Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered."

McIntyre subsequently lost his job. He initially tried to defend himself by saying he had a right to free speech but SBS defended his dismissal by finding his views inconsistent with social media policy.

As well as not having protections against recriminations, the implied right to free speech is constrained by laws against defamation, where a person not only has to show what they say is true, but also that it is in the public interest for others to know it. It is also constrained by racial discrimination laws which make it illegal to offend, insult or humiliate people on the basis of their race, national origin or ethnic identity.

Of course, what differentiates offence, insult and humilation from valid political discussion is up to public servants and judges to decide. For example, a Chinese migrant criticising a Japanese migrant over Japan’s World War 2 record would no doubt offend, humiliate and insult the Japanese on the basis of their national origin; however, it is unlikely that the Japanese would get a sympathetic hearing from a white judge if he or she complained. On the other hand, if a white Australian criticised the Japanese migrant for the same issue, a white judge probably would be sympathetic. This is because a harsh judgement against a fellow white would help the judge demonstrate that he or she not racist and in the process, deal with some of the embarrassment those in the legal profession feel about working in a profession dominated by white people.

Because laws banning racism have been devised and interpreted by privileged white people wanting to demonstrate they are not racist, racism between groups of colour will be adjudicated as ‘nuanced’, ‘two-sided’, ‘complex’ and ‘not easily solved.’ Perhaps that is true, but in practice it means that ethnic conflict is largely ignored until it escalates into very visible violence on the streets where it can no longer be ignored by the media. Such examples have included open conflict between Pacific Islanders and Aborigines in the Queensland suburb of Woodridge, and racially based gang conflict in Sydney and Melbourne. Individuals of colour who suffer at the hands of other people of colour simply wont find satsifcation through legal channels. Likewise, government programs devised to combat racism are framed in the context of a white majority group discriminating against people of colour. Such programs no context to resolve or prevent racism between groups of colour

As a result of government institutions have no capacity to resolve or prevent racism between people of colour, a race-based gang is often seen as the best avenue to justice or defence.

Aside from not being applied to race-based conflict between people of colour, the laws against racism are also selectively applied to people in positions of power. For example, in the early 2000s, it become a joke within a political media subculture to use derogatory caricatures of Mexicans to insult American Solomon Dennis "Sol" Trujillo, who had been running telecommunication company Telstra. The culture included Prime Minister Kevin Rudd who responded to Trujillo’s eventual departure with the words, ‘adieus’, to which journalists laughed. On his return to America, Trujillo explained the racial vilification he had suffered. When informed of his hurt, Australian journalists conceded he may have had a point but it was hard to feel sorry for a millionaire. The Australian Human Rights Commission never spoke out against the vilification of Trujillo or the negative stereotyping of Mexicans and arguably, it would not have been sympathetic if a complaint had been made.  

Solomon Dennis "Sol" Trujillo

Elements of the Australian media and a few politicians used derogatory stereotypes of Mexicans to offend and humilate American Solomon Dennis "Sol" Trujillo, who had been running the Telstra telecommunications company.

While the Australian public is not allowed to discriminate on the basis of race, the federal government is. When the Constitution was written in 1901, the federal government was given the power to make laws targeted at any race except Aborigines. The expectation was that it would use the power to make laws that advantaged whites and disadvantaged non-white migrants. In 1967, the power was expanded in a referendum to give the federal government the power to target Aborigines with the expectation that it would use the power to advantage Aborigines. It is due to this power that the federal government defines problems on the basis of race and develops solutions based on race. For example, the federal education department might create a public education campaign to raise awareness of Aborigines failing in the education system. This in turn builds support for a policy sold as a solution to the failure. One solution may be scholarships for Aborigines where recipients receive money on the basis of their race rather than need or exceptional academic achievement. Arguably, it is the tendency to justify a policy by raising awareness of Aboriginal failure that results in almost nothing positive ever being said of contemporary Aborigines in Australia today. Instead, government constructed stereotypes of Aborigines revolve around crime, domestic violence, poor health and low life expectancy.

There are no federal laws against offending people on the basis of their religion nor being offended by people on the basis of their religion. For example, a Muslim is free to belittle women who have sex outside of marriage as destined for the fires of hell while women are free to state that Islam is a sexist religion. Likewise, Christians are free to protest the Gay and Lesbian Mardi Gras while the gays in the Mardi Gras can lampoon Christians.

The rule of law is also selectively interpreted by judges in sentencing as they consider migrating circumstances that lead to a crime and prospects for re-offence. In some cases, there has been criticism of this process in relation to how it has been applied to Aborigines. For example, in 2005 a judge sentenced a 55-year-old Aboriginal man to only one-month jail for the anal rape, beating and imprisonment of a 14-year-old Aboriginal girl because the offender demonstrated that his actions were in accordance with his tribe’s law. Although the judge believed he was showing respect for Aborigines with the light sentence, he denied the Aboriginal victim (who made the complaint) equality under Australian law. Some Aborigines criticised the judge for denying the girl the justice that would be given to a non-Aboriginal girl and for also accepting that the rape was traditional Aboriginal culture.

In defence of the judge, there is a broad agreement that the justice system has been failing Aborigines. Figures released by the Australian Bureau of Statistics in 2010 indicated that Aborigines were seven times more likely to be victims of child abuse and 13 times more likely to be incarcerated. In response to such statistics, some groups, such as The Australian Law Reform Commission, have advocated the introduction of customary Aboriginal laws so that Aboriginal groups can take ownership of the social problems. The main concern is that aspects of some customary laws, such as corporal punishment, eye-for-eye justice and the infliction of punishment on a member of the tribe a perpetrator is from rather than the individual perpetrator, not only offend mainstream Australia’s views on how a justice system should work but also violate the Universal Declaration of Human Rights.

Davey's proclaimation

Posters erected in Tasmania in the early 19th century. The posters aimed to communicate that blacks and whites would be treated equally by the British justice system. In practice, equal treatment has proved problematic due to significant differences in the cultural and legal backgrounds of offenders and victims. Additionally, there have been questions about whether there can be equality when the colonial law is being used instead of customary law.

The few responsibilities required of Australian citizenship include voting in elections after turning 18 and serving on jury duty if called to do so. The study guide also says that Australians must also defend Australia if required but Australia currently has no national service. Conscription was briefly introduced after World War 2 with Australians sent to fight Communism in Korea and Vietnam. This was ironic as Australia had a referendum on whether to ban Communism in 1951 and voted no. Not surprisingly, many Australians didn’t find it patriotic to be forced to other countries to fight a political system that was legal in Australia. Protests eventually brought conscription to an end in 1972.

 The few rights of being Australian include the right to vote, work in the public service, seek election for parliament, apply for a passport, and receive help from Australia while overseas. Attempts to introduce a Bill of Rights have failed because of the difficulty in reaching consensus about which rights are important as well as distrust about who would interpret the rights. 



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