I like to wait to see how things turn out… but we had the better constitution

There were lots of strange claims surrounding the recent report into whether we should have a Bill of Rights in Australia.  The strangest of these were those which compared us unfavourably to the United States.  In the U.S., it was claimed, the citizens enjoy the benefits of a vast array of rights which are completely and totally denied to Australians.

It is sad that we seem to be so keenly aware of the United States’ Bill of Rights and yet so ignorant of history.  There are such excellent examples of how the Australian system afforded much better protection of our rights than were ever recognised in the U.S.

In the 1950s, for example, the Menzies Government passed legislation to outlaw the Communist Party of Australia.  In quite an amazing judgement, the High Court of Australia declared that the provisions of the Communist Party Dissolution Act 1950 were invalid in whole.  Menzies tried to get around this with a referendum but failed.

Compare this with a similar situation in the United States.  The Communist Control Act 1954 was passed and several other Acts were updated to provide more legitimacy for what had become McCarthyism.  Despite several cases going before the Supreme Court, SCOTUS never protected the rights of citizens to hold pro-Communist/Socialist beliefs.

The U.S. system works by defining rights — despite handwaving in the 9th the fact that it’s not limiting the number of rights apparently held by citizens.  In Australia, we don’t.  We have a judicial system which uses a commonsensical attitude which prevents legislatures from ‘gaming the rules’.  As McCarthyism demonstrated, the same was not true in the U.S.  Why, then, we would idolise the Bill of Rights completely baffles me.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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