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The Forum > Article Comments > Protecting Australians' rights > Comments

Protecting Australians' rights : Comments

By Graeme Innes, published 28/4/2008

Many Australians erroneously assume the Constitution protects fundamental rights and freedoms.

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Come now, Graham, our rights are pretty well protected here in Australia even in the absence of a bill of rights. If anyone in our country suffers from a perceived injustice, they have recourse to the media to bring their problems to the public's attention; they have their MPs (state and federal) to whom they can request direct intervention on their behalf if it's a government matter; they have many aspects of common law which they can call upon in the courts; and finally there are statutes of the various houses of Parliament which protect some rights.
In combination, all of these protective measures have made Australia one of the freest and safest countries on the planet. I really don't believe that the creation of a bill of rights and giving unelected judges greater powers over the lives of Australian citizens is going to bring enough benefits to justify such a course of action.
If it ain't broke, why fix it? A hell of a lot more justification is required before the need for a bill of rights is accepted by a majority of citizens.
Posted by Bernie Masters, Monday, 28 April 2008 10:38:06 AM
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The problem with both a charter of rights or existing protections is that they are highly subject to the vagaries of popular and temporal opinion.

The entire idea of universal human rights is that they apply to all people within the sovereign boundaries and are timeless in their intent.

As Hannah Arendt correctly described what is required is "constitutio liberatius" - the marking out of areas of life which the State will not intervene, ever.

Whilst these themselves are subject at times by some pretty suspect interpretations of law, these are usually at such variance to common sense that the public reaction is invariably quite severe - witness the effects of the Dredd Scott case in the United States in 1857.

The best possible way to protect individual rights and liberties is through constitutional protection, rather than the reliance of the hoi polloi or by the politicians, the hoi oligoi.
Posted by Lev, Monday, 28 April 2008 10:54:55 AM
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BILL OF RIGHTS...

1/ All Australians will be free to practice their religions.

2/ No Australian will experience discrimination based on his religion.

3/ All Australians will be able to live in peace and must feel totally safe in all their environments, of work and leasure.

UNnnnnfortunately, point 1 and 2 are NOT compatible with point 3.

Why? A number of reasons.

a)The symbolic meaning of certain pieces of religious clothing means some will be fearful of those wearing them.
b)Some religions do not recognize such rights, and ignore them.

CANADIAN EXPERIENCE.

The Lunacy of such things as 'Human Rights Law' is clearly demonstrated in Canada, which deserves to be institutionalized if it were possible.

SIKHS. The Kirpan is now allowed, on the grounds of avoiding religious discrimination, to be taken into:
-Courtrooms.
-Schoolyards.
-ON PLANES.. yes.. that's right..on planes. (Canadian Airlines only)

I have interviewed 2 Sikhs at random. One an educated man in mid 30s, the other a youthful bloke around 20ish. BOTH declared a willingness to USE their dagger/kirpan in self defense or in the defense of others. (illegal unless attacked with a knife.)

IT'S ONLY A MATTER OF TIME...before a Canadian Airliner is hijacked by terrorists masquerading as Sikhs.

How can a child feel safe, knowing that other children are carrying a possibly long pointed dagger like weapon? So that shows point 3 is down the toilet already.

POLYGAMY..how can you discriminate against Muslims wishing to avail themselves of the 4 wives rule?
SPOUSE ABUSE Or the Domestic violence permission?

SEXUAL ABUSE or the sexual use of captive women permission?

DENIAL OF TAXI SERVICE. To blind with guide dogs?

CONCLUSION. Bills of 'Rights' are usually selective, biased and unworkable. Being unworkable and unfair, they are simply used as a tool of social engineering by Socialist Internationalism interests.
BOR is simply code for 'destroy the existing social order'.
Posted by BOAZ_David, Monday, 28 April 2008 1:18:51 PM
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WHAT IS INNES REAL AGENDA?

ooh..that is pretty clear.

"However, there are 60-plus pieces of federal legislation which specifically deny financial and work-related benefits to same-sex couples." (his other thread)

as IF.."Same sex" relationships are on a par with heterosexual relationships?

Why not look at legislation which discriminates against the 'positive nature of adult/child sexual relationships' which NAMBLA would have us believe?

Why stop at removing discrimination against consenting,committed adults?

An 8 yr old Yemeni girl who was the victim of a 30 yr old sex maniac who 'married' her was able to take herSELF to court to get free of the monster and the monstrous ideas which led to her predicament...
Young people.. (15 yrs and 11months 20 days) are no less mature than those who are 16 yrs and 1 day....

INNES DARK AGENDA OF SLEAZE and EVIL..... yes.. that's my opinion.

1/ "our international obligations".. RUBBISH! (for this read "His gay rights agenda")

2/ "Legislation against same sex couples" NOW..we are getting to the nub of this 'equality' thing of his. (another thread)

This is war.. WAR! and it is between light and darkness..right and wrong.. and INNES is just acting like a footsoldier of the dark side.

The shape of our culture depends on...US..and how hard we are prepared to fight such disgusting forces as represented by Innes' argument and crowd, on issues such as these.

This author wants to feed us into the gas chambers of cultural oblivion in the name of gay sex.

Well..I'm not interested in being shipped off to Cultural Auschwitz by the likes of Herr Innes.
Posted by BOAZ_David, Monday, 28 April 2008 1:34:38 PM
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I think this was most apparent when both sides of politics acted several years ago to rewrite the Constitution to deprive the rights of gay people in society.

I'm also in some agreement with Lev. While I believe in the great potential of a bill of rights, I also recognise there can be flaws as well. With our current system of government, where inconsistent devious laws are dreamt up on a regular basis I would expect it to be a very flawed document. However equally the argument for not having one also has it's detractions.
Posted by Steel, Monday, 28 April 2008 1:36:15 PM
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More monomania, Boaz.

>>The symbolic meaning of certain pieces of religious clothing means some will be fearful of those wearing them<<

Fearful, Boaz?

Only if you and the others determined to stir up inter-faith strife have been able to instil this fear through your continuous drip-feed of hatred. Most people respect other folks' right to wear what they will, so long as it is legal (i.e. doesn't frighten the horses).

>>Some religions do not recognize such rights, and ignore them<<

Then they will be breaking the law, won't they?

>>The Kirpan is now allowed, on the grounds of avoiding religious discrimination<<

Subtle. The kirpan is allowed out of respect for a set of religious beliefs. That's a positive, not a negative.

>>I have interviewed 2 Sikhs at random... BOTH declared a willingness to USE their dagger<<

Yes, of course you have Boaz. And it is also amazing how they both instantly confessed to you their homicidal instincts. Your interviewing style must be pretty effective.

>>IT'S ONLY A MATTER OF TIME...before a Canadian Airliner is hijacked by terrorists masquerading as Sikhs<<

Now you are being very silly. Aren't you.

>>How can a child feel safe, knowing that other children are carrying a possibly long pointed dagger like weapon?<<

I'll bet they don't give it a passing thought, Boaz. Go do some more interviewing and find out.

>>POLYGAMY..how can you discriminate against Muslims wishing to avail themselves of the 4 wives rule?<<

I'm sorry - where does it say that a Bill of Rights will include licence for polygamy? Is there, in fact, a Bill of Rights anywhere that does so?

>>SPOUSE ABUSE Or the Domestic violence permission... SEXUAL ABUSE or the sexual use of captive women permission?... <<

Ditto.

>>DENIAL OF TAXI SERVICE. To blind with guide dogs?<<

Not that old chestnut. This practice was outlawed, remember?

>>CONCLUSION. Bills of 'Rights' are usually selective, biased and unworkable.<<

I agree with your conclusion, but cannot for the life of me derive that conclusion from the farrago of bilious bigotry that precedes it.
Posted by Pericles, Monday, 28 April 2008 1:54:34 PM
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David,

Same sex relationships between adults are always on the same par because adults have adult cognitive abilities. Children do not.

Amazingly they can make their own decisions about what they can do with their own body with competence. They do not need the Church or State to tell them this. Although if they do wish to use the sexual mores expressed in a supposed 'revealed' book, bully for them.

Is it so amazing to consider the possibility that the formation of adult biological conditions also includes neurological capabilities as well?

That is the core reason for a difference between adult-adult relationship and adult-child relationships.

I do worry about people who can't tell the difference.

With regards your comments concerning a bill of rights, I believe you are mistaken. Legal systems deal with apparent contradictions. Sometimes they have to show priority or precedence one way or another. Sometimes they can come to conclusions that satisfy competing claims.

Let me show you how through a trivial example.

Sikhs must carry a kirpan as per the edict by Guru Gobind Singh. But it's supposed to be a ceremonial dagger. It actually symbolically represents "Ahimsa", or non-violence.

So to satisfy both the rights of freedom of religious expression and the right of public safety, one can wear the dagger in an ornamental fashion, with the blade dulled, sheathed and sewn into one's garments.

e.g., http://www.sikhcoalition.org/LegalUS6.asp
Posted by Lev, Monday, 28 April 2008 2:03:18 PM
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All very interesting.

Graeme Innes: "I often hear the argument against a federal Charter of Rights that human rights are already adequately protected in Australia. As I have illustrated, people who can't see the gaps in rights protection just aren't looking."

I really don't think that's the problem — most people can see the human rights gaps in Australia. To me, what we need to ask is whether a bill of rights — which will presumably be an expensive exercise — will help people enjoy those rights.

I know a ward of the state. In Australia, he should have been able to expect that he would not be sexually abused by a government employee while in the government's care, and he should been able to expect he would be supported in going to school. He should have been able to expect these things because they are enshrined in law. Yet he was sexually abused, and he was not supported to go to school.

If he had also had a bill of rights to underscore those expectations, would the abuse never have happened? Would he had stayed at school until he was sixteen?

I haven't yet decided where I stand on the issue — I want to hear more. I have no doubt I'd probably approve of most of the rights that a likely bill of rights would document. But to convince me, I'd need someone to explain how would the bill actually help deliver those rights.

Lev, why do you say constitutional protection is preferable to a bill of rights? Forgive my ignorance.

Boazy, your ravings are even nuttier than usual. Just thought you'd like to know.
Posted by Vanilla, Monday, 28 April 2008 2:48:39 PM
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Any Australian citizen can be dragged off the streets by DIAC and thrown into immigration detention without being told why, denied lawyers and they can have their children deported on false documents while they are in that jail. Ask Tony Tran or Vivian Alvarez.

Or the other 247 we don't know the names of yet and whom I am convinced are not the only ones. There is no point in saying they had legal recourse after the fact because their human rights were grossly violated in the first place and people simply do not recover from that.

IN the case of Al Kateb 4 of our high court judges deemed it legal and constitutional for "non-citizens" without a visa to spend their entire lives in detention knowing very well they would never be charged with a crime. At the time there were 11 Palestinian children in Baxter concentration camp who were legally stateless. You imagine the consequences for those kids if the ALP, Democrats, Greens and some members of the Liberals hadn't screamed about it.

In the case of s276 children can be legally jailed for life, in B & B all welfare and duty of care was stripped from refugee children.

How could this happen? Because our constitution is explicitly racist.
Posted by Marilyn Shepherd, Monday, 28 April 2008 3:08:07 PM
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Vanilla>"Lev, why do you say constitutional protection is preferable to a bill of rights? Forgive my ignorance. "

I'm not sure why he said that either. But I do know that if the bill of rights is written by our current leaders with their prevailing mentality, rather than extremely intelligent, objective human beings who do *not* have authoritarian agendas (like our current pollies), it is likely to be a flawed document. Still I honestly can't see how it could ever be bad, more that it could quite easily be deficient if written by politicians or our bureacracy. You really need independent, objective thought going into the document by scholars and mavericks. It should really be seen as a sacred document, rather than a document produced by a stupid committees of idiots.
Posted by Steel, Tuesday, 29 April 2008 11:34:51 AM
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Do all Australians have rights? What about Indigenous Australians, and others on the margins of our society?

Laws, the Constitution, and our very foundation for governance is based on a lie. "Terra nullius" legitimated the appropriation of land that did not belong to "no one", since it was and still is cared for by people who paradoxically fall inside and outside the law.

How can white man's law apply to a diverse group of people who have not succeeded sovereignty? It can not, but it somehow problematically does.
Posted by Haralambos, Tuesday, 29 April 2008 10:27:04 PM
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For Vanilla & Steel,

I did provide the reasons why I prefer constitutional protection rather than a bill of rights but nevertheless I'll provide an additional summary (they really are two sides of the same coin).

1) The Constitution is the founding document of a State, of which there is no higher recall within civil law. Thus it is preferable to provide human rights the highest possible degree of universality and permanence.

2) Bills of Parliament are subject to the vagaries of popular opinion and even worse still, the opinion of politicians who are almost invariably prepared to sacrifice the rights of a minority in favour of election by the majority. Or, to quote Wikipedia on the subject: "Since it may be changed, an unentrenched bill of rights is a poor defense against a corrupt or tyrannical legislature."
Posted by Lev, Wednesday, 30 April 2008 10:32:16 AM
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Lev I really believe you have that backwards (or the reality doesn't support those assertions). You see, the Australian government with the support of both sides of politics as recently as 2004 or so, REWROTE part of the constitution to exclude gay people, from marriage. Until that point in time, the Constitution did not specify gender for marriage and hence was open. These discriminatory changes happened due to political whim of the time.
Posted by Steel, Thursday, 1 May 2008 12:20:44 AM
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Steel,

Actually the example you give is an excellent example on why rights need to be entrenched in the Constitution rather than by legislation. Thank you for providing this example.

The fact is the Constitution was not rewritten at all. Changing the Australian Constitution requires a referendum supported by a majority of voters in a majority of states after being passed by an absolute majority in both houses of Federal Parliament (cf., Chapter VIII of the Australian Constitution).

What occurred was that the Constitution is silent on defining a marriage (cf., Section 51(xxi)) and indeed gives power to the Parliament of Australia to make laws with respect to marriage. Thus the political opportunity existed to define marriage according as per Ruddock's Marriage Legislation Amendment Bill (October 2004).

The Constitution was not changed. The law was changed.

If the Australian Constitution had a specified a non-discrimination clause on such matters the Amendment would have been rejected by the High Court.

The reality is that when rights are entrenched in a Constitution that they are more permanent that when they are not. I can provide countless examples of this from States that have entrenched rights, if you so desire.
Posted by Lev, Thursday, 1 May 2008 10:08:18 AM
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