A REAL Bill of Rights for Australia
Sunday November 20th 2005, 12:24 am

The ACT has a Bill of Rights, but it is statutory, not constitutional. The rights granted can be rather easily modified by government. The actual purpose of a Bill of Rights is to rein in an abusive government. Queensland Liberal senator Steven Ciobo is trying to water down community expectations and satisfy civil rights activists by flogging a statutory Bill of Rights.

Terry Lane of ABC Radio National takes Ciobo to task in the 13 November edition of The National Interest (transcriptRealMedia).

What’s the hesitancy on the part of government with the citizens being able to protect themselves from tyranny with some entrenched, boilerplate rights? Why bother enacting a Bill of Rights with no ultimate curb to government powers? John Howard supports a constitutional Bill of Rights for Iraq– why won’t he support the same for Australia?

When we next get a Bill of Rights on the ballot, don’t be fooled. It needs to be written into our constitution to be an ultimate bulwark against government abuse of power.


11 Comments so far
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Interesting post Weez, though I tend to disagree for a number of reasons:

1) Rights aren’t absolute – what if two rights were in conflict? A Bill of Rights presents these as absolute and doesn’t deal with the complexities of how they may interact. This has come up a number of times in the States and interpretation by the courts has been unpredictable and subject to change (to say the least!).

2) It may in fact be poor protection for our rights – there is an argument that rights protected by common law may be more robust. An example of this might be freedom of speech, whcih has been challenged a number of times in countries with it enshrined in a Bill of Rights. Australia, with no explicit right to freedom of speech, has done comparatively well in terms of protecting it (though sedition laws, etc are a major cause for concern).

3) A Bill of Rights is largely unchanging – how can we anticipate what the world and its legal complexities will be like in 100 years time? I suspect that rights that have been commonly regarded as as being of second order importance in the past will become more important in the future (e.g. privacy).

4) A number of rights are already protected in the Australian Constitution – a number of states’ rights and even individual rights such as freedom of religious association are already included in the constitution. Should we embark on creating a Bill of Rights when these provisions may be adequate?

I’m not emphatic about any of these points and I’m keen to maintain an open mind on the issue. I think, however, that it’s important to consider how a Bill of Rights might work in practice.

Comment by Ben 11.20.05 @ 8:51 am

Ben, thanks for your well considered comment.

The balancing of rights will forever be controversial, but defined rights are not simply powers or shields- they are also limitations which allow people to exercise their rights without infringing those of others. In one small example, the American freedom of speech is not absolute. The right to free speech stops when the exercise is injurious to the public (i.e. fire/crowded theatre).

Statutory rights, established through case law precedent, are subject to change when new decisions are handed down from the courts. They are also more easily modified on the whim of the government of the day. A key example is Howard’s terrorism laws. These laws will facilitate guilt by association and criminalise criticism of the government for its own sake.

In terms of the longevity of documented rights, quite a number of the provisions in Magna Carta, which was first forced upon King John in 1215 AD, are still in use today, like the right to due process of law. The 1297 AD version of Magna Carta is still part of present day English law. The Bill of Rights attached to the US Constitution dates to 1791.

You’re quite correct that the sedition laws as Howard would have them are of great concern. The Howard re-write removes the specification that sedition may only be committed in the pursuit of overthrowing the government by force, essentially criminalising mere criticism of the government, by the mere force of his party’s numbers in Parliament. This is nothing if not tyranny and particularly dangerous considering that this government has already shown via Scott Parkin it will abuse its authority.

While rights in Australia are enumerated via precedent, it is a large and complex patchwork which is far more open to interpretation or abuse than would be constitutional Bill of Rights. Rights may be established by precedent, but these rights have not been approved by the Australian people. Legislators are constantly tinkering around the edges of basic rights; it’s time to define our most basic rights in an amendment or addendum to the Australian Constitution.

But is a Bill of Rights right for Australia? Considering we have always had a federal system, which by its nature is a limitation on government power, I’d suggest that a Bill of Rights is in character and complementary to the way Australians wish to be governed.

Past referenda on a Bill of Rights for Australia have failed, some rather miserably. A bit of a quandary is introduced when you consider that a Bill of Rights is most important for unpopular causes. As such, the majority have little need for enshrined protections. Some very basic rights like freedom of speech, association and religion are thus not protected in Australia. How do you get a popular approval of protection of unpopular causes?

We may indeed have done relatively well in the past without a Bill of Rights, but as the 21st century wears on, it is clear that governments will encroach more upon the natural human rights of the people. That’s not to say that there haven’t been abuses in the past which a Bill of Rights would have prevented. I think we’ve been lucky so far, but with a despot in Kirribilli House, our luck is clearly running out.

Comment by weezil 11.20.05 @ 10:02 am

Interesting points Weez, certainly plenty of food for thought. It seems to all boil down to a question of whether we stick to what has seemed to work to date versus preparing for a worst (or at least worse) case scenario. I came across an interesting speech by Michael Kirby on this issue; both views would appear to have some merit.

Comment by Ben 11.20.05 @ 11:29 am

Ben, if the government wasn’t demonstrably abusive of our rights, I’d agree. However, Howard in particular has proven that he cannot be entrusted with the best interests of the Australian people. He’s in this game to be Caesar and has proven so over and over again. I believe it’s well past due time to carve our civil rights in stone to prevent this sort of abuse.

Comment by weezil 11.20.05 @ 11:56 am

Could’nt agree more with your comments.

Comment by Morgan 11.20.05 @ 4:44 pm

I belive a bill of rights would be good for Australia. While we do have things like common law rights, these are mere conventions, not codified at a constitutional level, and such un-codified conventions can easily be broken – refer to the events leading up to November 11, 1975.
Problem is, Australians are never keen on changing the constitution. Referenda in Australia only have an 18% success rate, no matter what side of politics a positive outcome would appear to favour.

I can just see the Bolt/Ackerman-style columns – “Why do we need these rights codified in the constitution anyway? Our fearless and noble leaders would never abuse our rights, and we’ve got enough rights as it is, anyway. Don’t you realise that the lefties only want to do it for their own game? The USSR constitution guaranteed freedom of speech, freedom of the press, freedom of assembly, including the holding of mass meetings, and freedom of street processions and demonstrations, and look what happened to them. Do we want to end up like the Soviets?”

(You know what’s scary? That really sounds like a Bolt-esque argument)

John Howard supports a constitutional Bill of Rights for Iraq- why wont he support the same for Australia?
Probably because he doesn’t have Iraq on his “countries to bring into the Australian empire” list.

Comment by Evan 11.20.05 @ 7:13 pm

Oops, I meant “their own gain”, not “game”. Stupid Queen songs on the stereo unconciously influencing my typing…

Comment by Evan 11.20.05 @ 7:16 pm

Weez – you’ve definitely got a point there. The worst realistic case scenario is probably what we’re already dealing with.

Evan – you’re not ghost-writin for Bolt are you? 🙂

Comment by Ben 11.20.05 @ 7:57 pm

Too right, Ben. The very worst case is if we lose what few rights we do have when Howard’s terror laws get up. Scarier yet is Ruddock answering criticisms of the proposed terror laws by suggesting we pass them in fully broken form now and fix them later.

Once these laws get up, we will have them for a lifetime, whether there is a ‘sunset clause’ on them or not!

Comment by weezil 11.21.05 @ 8:23 pm

I honestly cannot believe that a responsible Attorney-General could ever take that opinion – “We know there’s a few holes, don’t worry, we’ll fix ’em, honest.”

Incidentally, it was Mozilla that I couldn’t see this post in. Go figure.

Comment by Evan 11.22.05 @ 9:47 am

It was a really odd problem, Evan. Sorted now, though.

I do wonder just how stupid the old lying sack of shit thinks we are.

Comment by weezil 11.22.05 @ 10:02 am

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