Go for a Bill of Rights at your peril!

But, when did you last feel the need for a Bill of Rights? If your answer is, “Never”, you are like the vast majority of Australians. The chances are that you didn’t know that Australia was the only developed country without such a Bill, and couldn’t have cared less. After all, who needs a Bill of Rights in a country like Australia? The answer is, of course, nobody. Australia does not need a Bill of Rights.

So, who started all this nonsense? The usual suspects of course: that relatively small minority of people inhabiting the left who think that they know what is best for us. But, in this case, it is not “us” – your average Australian - they are trying to think for. They know that we have no need for a Bill of Rights, so whom are they presuming to act for in their slavering for a Bill of Rights?

For the answer, see Judy Cannon (OLO 5/4/06). ‘The Bill draft refers to “All people in Australia” deliberately to include citizens, asylum seekers, people on a working holiday and tourists. It requires Australia to “better conform” with its international obligations, and in particular, in areas where the new anti-terrorism legislation violates those obligations.’

Australian citizens get a mention but, as it is extremely unlikely that the ordinary, law abiding Australian citizen will ever need this “help”, it is the illegal entrants, visa over stayers and wayward tourists who the Bill is really intended for. And don’t forget those poor terror suspects who, it is proudly claimed, would not be subject to the current laws had we had a Bill of Rights.

The Chair or the U.S Civil Rights Commission, Mary Berry said, “Civil Rights Laws were not passed to protect the rights of white men and do not apply to them.” (‘The Death of the West’, Patrick J. Buchanan).

Substitute Bill of Rights and Australian majority, and there you have what maniacal minority groups want for us.

A bill of rights is purely a left wing mechanism to achieve authoritarian control in order to engineer a society which reflects their feeble minds.

A society so engineered would be defenceless against external threats. Most left-leaning voters probably do not realise this.

The leaders of the left do, however. Hence the left's continual support for communism, islamic fundamentalism and unilateral disarmament.

Hello fellow human beings.

As human beings, you are entitled to human rights. These human rights are yours whether you come from Australia, or New Zealand, Pakistan or Greenland. It doesn't matter where you come from. You have human rights.

Australia signed the International Covenant on Civil and Political Rights many years ago. It is well past time for the Government to deliver. As humans, we deserve the chance to participate in a referendum to advance human rights through constitutional reform.

James Allan (with respect) and George Williams are not representing the two sides of this critical debate. Professor Allan does not want a Bill of Rights. And Williams only wants a statutory version which leaves human rights in the hands of the majoritarian branch of government - the branch that is least well-equipped to make independent and balanced decisions on human rights questions.

The only way to ensure that human rights are protected is to have a constitutionally-enforced, judicially-enforceable Bill of Rights reflecting the International Covenant to the letter.

What are you all afraid of? Human rights will not affect your capacity to meet your mortgage repayments. It will not affect the capacity of the nation to preserve public order, and, for that reason, lock up terrorists. Read the Covenant carefully before you dismiss the capacity it provides for governments to develop flexible and nuanced approaches to the major civil liberties questions that have arisen in the past five years.

A knee-jerk criticism of the notion of an Australian Bill of Rights does little credit to its promoters.

Will a Bill of Rights protect us from any more of the insanity of the left?
I would like to see that.

Hilarious. It takes an ignorant nation indeed to accept the argument that politicians will honour our rights better than judges.

Sure, it's okay at the moment, when "rights" means "rights for me and my mates, and sod-all for anyone else", but will there be as much faith in pollies next time Labor or the Greens have the run of parliament?

"Bill of Rights?" A litigation lawyers paradise,just like the GST was an accountant's paradise.

Perhaps our society needs to deconstruct so future populations will have a new challenge,but will we find our way back to this enlightened post WW2 nervana?We are all too pre-occupied with our immediate self gratification.

Oh what a perverted web we weave,when self interest becomes our master and creed!

It is fortunate for us that this professor of law is not one of the judges of whom he is so extraordinarily critical. How can someone in that position be so ignorant of the role of a good judge in our legal system? There are parameters that surround the proper exercise of the judicial function and a good judge applies the existing law within those given boundaries. There is never a blank cheque. The law will contain the bill of rights properly enacted by the parliament itself as a well-known part of government policy. The absence of a bill of rights arises to some extent from our old-fashioned type of constitution and the sooner that is remedied the better for our society's erstwhile humane way of life. barb h.

My question about a Bill of Rights (which hopefully someone here can answer):

Is a Bill of Rights exhaustive? Does it restrict our rights? If we have a finite list of rights, surely that means that anything that does not feature in our Bill of Rights is no longer a right?

At present, we have a right to do anything that is not against the law. Will that right be preserved?

I don't feel alienated by a lack of a Bill of Rights. In fact, I am quite happy without one.

I am probably just dumb, or left wing to my right wing friends who think labelling something as left wing dismisses further thought. Bit like Christianity really all the good bits are and any contrary are obviously not.
So what will a bill of rights do that is not already promised by our signing the various UN treaties on the rights of man etc.
Well would a bill of rights have stopped the dishonest hype for the latest Iraq war would such have prevented the politicians shifting grounds to other reasons. What might have a better more investigative media been obliged to do by such a bill? Would such have stopped the ABC being starved of funds? Accused by senior ministers of saying contrary to the party line, that is truth. Would such have stopped idiocy and allowed fact and rebuttal to play not drama and self indulgent hype of lies? Some still believe Saddam and Osama were bosom mates. The wonders of a literate informed nation.
Would a bill of rights make politicians less venal less skilful with weasel words? Perhaps even abide the charter of decency and the UN, such as not letting AWB channel funds to Sadam?
Well just what will a charter do? Stop Kids being locked in detention because the “we say who comes here” rings evocatively powerful and penalises the kids. Hang the parents and the kids too? Will this be stopped? What they are human and deserving of human rights? No they are left wing stirrers, taking jobs and bringing bombs. Would a Ruddock be stopped by the bill and his colleagues who play the man, the migrant, not the cause of the forced emigration?
Will it make politicians speak truth, truth not legalal chicanery? Was the act of free choice for Papua real? Does the reality of foreign affairs demand deceit as it did for so long for Timor? No body whatever political party and whatever class of Australian escapes contumely.
What then will a bill of rights do that a politician or lawyer can’t undo or hyped up popular feeling deny

The story seems to be that unelected judges have no business meddling in laws and rights while those we elect do.

A question or two around what our pollies have done might answer whether or not the ICCPR and declaration of human rights should be made domestic law.

1. Do workers want their employers to have the right to sack them at will because a politician says it is OK?
2. If they do, do the workers want a judge in some court to be able to tell the pollies they got it wrong?
3. Did we elect this government on the basis of doing number 1 without the protection of number 2?
4. How about the reality of locking up innocent children and the shocking harm that has been caused to them, instead of the deranged rhetoric that they are "illegal" and therefore deserve to be abuse?

Come on - Leigh, answer some of these questions for us.

Then let us remember one thing that christendom seems to pretend to rely on - we are all equal.

Otokonoko, Australians have very few enshrined rights. We get an inflated sense of protection under the Australian constitution because we see a lot of American television which talks about a totally different document.

The Australian constitution deals almost exclusively with the process of parliament and how the states interact with the federal government. The rights of citizens are unaddressed.

Freedom of speech, for instance, is not a protected right in Australia. The PM could simply decree that mentioning tax reform is henceforth illegal, and the AFP would be obliged to enforce it.

Most of the rights we DO enjoy have been "interpreted" by judges, who review the constitution and try to decide what the drafter's intentions were when they wrote it.

Historically, when judges get their hands on the constitution, we gain protected rights. When it's left to politicians, rights are taken from us.

Visit these sites for more info (Google has yet more):

www.republic.org.au/ARM-2001/q&a/qa_constitution_outline.htm

www.austlii.edu.au/au/journals/MULR/1999/31.html#Heading32

Otokonoko: Well, it depends really. The Bill of Rights in the U.S. (Amendments I - X to the Constitution) basically says "if a right isn't stated it doesn't mean you don't have it" (IX) and "any power not specifically given to (federal) politicians isn't theirs for the taking". (X)

[See the real wording here: http://usinfo.state.gov/usa/infousa/facts/funddocs/billeng.htm ]

The reality that most people seem to be missing here is that ultimately a Bill of Rights is meaningless if those in power (politicians or judges) ignore it or interpret it as they like. This has largely been the case in the U.S. for a very long time now, and both the right and left are equally part of the problem. Jefferson, et al. would be rolling over in their graves.

I'd like to see people have rights, though I'm sceptical that setting them down and enforcing them wouldn't become an ultimately costly and pointless exercise for us, and a self-serving exercise for those in power when convenient. Of course, I'd like to think our rights didn't even need to be written down, that they were merely self-evident.

Sadly Shorbe, while agreeing that our rights should be "self-evident", the practical reality seems rather different. The Federal Anti-Terrorism Bill (2005), for example, abolishes habeas corpus, due process and the presumption of innocence. A bill of rights, being a Parliamentary act, is not a guarantee of course as it can be modified, or repealed by Parliament. Changes to the Constitution to include a charter of rights would be more robust, but without all-party support (a remote possibility) would be unlikely to pass a referendum.

Our rights under the Constitution are extremely limited. These are the right to vote (section 41), protection against acquisition of property on unjust terms (section 51(xxxi)), the right to a trial by jury (section 80), freedom of religion (section 116) and prohibition of discrimination on the basis of State of residency (section 117). The High Court has "disovered" a few more rights implied in the Constitution, including (in 1992) freedom for individuals to discuss and debate political issues.

An implied right, or a right under common law, is a defence in court. Supposing I am charged (heaven forbid) with defaming a politician, I could defend myself by claiming freedom of speech as an implied right under the Constitution. Thus, if a bill of rights codifies a right to free speech (for example) it means that my defense is strengthened. My understanding is that not only does the prosecution (or claimant) have to prove defamation, but they also have to prove that this overrides my right to freedom of speech. If any lawyers out there could clarify this I would appreciate it.

Johnj: I agree with what you're saying in theory, it's just that practically, I'm extremely sceptical about whether 1) anyone would actually know what his or her rights were, 2) if anyone would care, and 3) if the powers that be would care. Jefferson and friends envisaged a loose union of states with little or no interference in the lives of people and tried to enshrine this in fairly straight-forward language. The modern reality is a behemoth that laughs at that project and an ignorant or compliant populace. I fail to see how it would be any different here. I think the whole thing would just be a very expensive exercise in bad taste.

Considering that I have seen Rob Hulls' Justice system in action, where there is no real oversight of the magistracy largely because of laziness and political expediency, I hate to be on his side in anything.
But this becomes an exercise in RealPolitik.

Australians assume that they have certain rights. The reality is they have none.
The exercise of internationally accepted human and civil rights is merely at the whim of the government in power.
Because of that fact the government may restrict or eliminate any of your rights at any time.
In fact, by simply exercising their authority to accept or deny evidence, any magistrate can severely limit your rights. There are no Rules of Evidence because the Hulls Justice Department does not enforce them. The magistrates are free to do whatever they choose in a courtroom.
Your only recourse is to spend thousands to hire a lawyer to find a magistrate whose whims match your own.
That is the sort of justice system that exists without a Bill of Rights.
That is the sort of justice system that exists in third world countries.

The fact that Australia has no guarantees of civil and human rights for every person, -- citizen, resident, or whatever -- identifies its society as immature, at best adolescent. More, it shows that the government(s) of Australia seeks to keep the citizen at the lowest level of society. (And we all know what flows downhill, right?)

Historically, right-wing governments seek to limit or abolish human and civil rights; left-wing governments seek to establish them. But human and civil rights are not a right or left issue.
Rights are a statement about respect for the individual, without regard to race, creed, or color.
Explicitly defined Rights force a government to respect the individual.

If you want Australia to remain a nation of apathetic whingers, forego what every other english-speaking democracy in the world has; indeed, leave Australia as an international hypocrite before the world. Don't give the citizens rights.
Let the government at all levels continue to preach to your apathy. The nation can whinge forever.

Unfortunately, I've seen James Allen's editorials before. As a law professor, he is astoundingly ignorant of the foundations of western law.
His previous article against a Bill of Rights for Australia cited an example of shouting "Fire!" in a crowded theatre.
He condemned the proposed national Bill of Rights on the grounds that such a thing would be allowed under the US Bill of Rights free speech amendment.
This is exactly the example every 5th grader in the US is shown to illustrate why the Bill of Rights in the US Constitution is limited by reason and changes over time.

According to Prof Allen, the US system didn't exercise judgment in such a case, and the rights were absolute. Prof Allen needs to return to his law and history books. How he became a law professor has to be called into question. (Who's mate was he?)

Amoranthus: Again, it depends upon whether or not a Bill of Rights would actually be respected. The Bill of Rights in the U.S. hasn't been. Whether you agree with the rights therein or not is not the point, the point is that the 2nd (right to bear arms) has certainly been infringed, and so has the 4th (regarding government searches of people). Likewise, the 9th and 10th (ie. that you have rights not explicitly stated, and that if a power isn't explicitly granted to the federal government it remains the right of the people or the states). A classic example here is that some states have legalised marijuana for medical use, yet the federal government has overturned it, which is clearly unconstitutional. Likewise, the alphabet soup of government (eg. FBI, ATF, DEA, etc.) shouldn't exist, but they do. Ultimately, he who has power can do anything, regardless of a Bill of Rights.

Likewise, your point "historically, right-wing governments seek to limit or abolish human and civil rights; left-wing governments seek to establish them" is false. The ALP were the ones who wanted to bring in a national identity card in Australia, and the Clinton Administration in the U.S. were the ones who brought in Omnivore and Carnivore, as well as a whole host of other unconstitutional programmes (whilst continuing the War on Drugs or just generally being involved in things such as education, which they're not allowed to under the 9th and 10th). Of course, Bush has been much worse, though in many ways, it's simply been government business as usual. Look up the Whiskey Rebellion of 1794. Screwing with the populace goes back that far and everything since has just been icing on the cake.

"Explicitly defined Rights force a government to respect the individual."

That's simply not true. Go to any libertarian website based in the U.S. (Libertarian Enterprise/L. Neil Smith, Lew Rockwell, etc.), or if you prefer a "left wing" approach, try the A.C.L.U.