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The Forum > Article Comments > Progressive unease with Bills of Rights > Comments

Progressive unease with Bills of Rights : Comments

By Joo-Cheong Tham, published 30/6/2008

The appeal of having a Charter of Rights at the federal level seems almost irresistible but we should pause before accepting these claims.

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It is surprising and most disappointing to see Soo's distrust, from his ivory tower, in the capacity of the courts to objectively apply the principles of human rights in our daily lives. Those citizens who have been intentionally or unintitionally marginalised by the legislative or administrative branches of government need access to a legal proccess that can effectively redress their perceived abuse.

Failure to provide such a process can lead to feelings of complete helplessness, further abuse and violence. Some of the greatest advances against institutionalised racism have come about as a result of landmark court cases where the Bill of Human Rights struck down populist discrimination.

When that has happened an amazing thing occurs. Society takes stock of itself. The new standards set by the court become the norm.
For example, successful litigants in human rights cases in the 1960's 'won' the right to marry a person of a different race - quite a shock at the time. More recently, last month, the Supreme Court of California allowed two people of the same gender to marry, citing the same human rights that prevailed in inter-racial marriage.

The next President of the Untited States could well be the offspring of an inter-racial marriage.

There is a feeling of great joy in oppressed communities by triumphant human rights victories. Their victories trancend into the values of who we are as a nation and why we sometimes go to war against tyrants. Defending our enjoyment of justice, equality and liberty is a responsibility on each and everyone of us in a free democratic society. It is a value worth promoting to less enlightened societies around the world.
Posted by Quick response, Monday, 30 June 2008 12:38:49 PM
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I have a measure of distrust of politicians of every stripe. However there is always the knowledge that they can be given the sack at the next election. In essence the fact is that democracy is by far the least bad form of government and the best medium to long term protection of our human rights (however they may be defined). However I have almost no trust at all in judges or the legal fraternity in general. I look at the miserable record they have in so many cases (failing to punish a mob of pack rapists for example - a scandal that was only rectified in part due to a public backlash that resulted in parliamentary pressure). The mere idea of giving the judiciary any additional power or even influence frightens me.

Speaking as a migrant from UK over 30 years ago I consider that Australia has a fine constitution. It is far far better than in any of the other countries I have lived in. Leave it alone!
Above all do not degrade our democacy by handing over a degree of power to a mob of self seeking, wealthy, unelected and unsackable people.
Posted by eyejaw, Monday, 30 June 2008 1:56:24 PM
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I am astounded that people who advocate a bill of rights in the constitution do not take the time to examining the record of the High Court in enforcing the rights currently in our constitution. The most outrageous example, of course, is section 41, which provides that when it comes to voting rights, state law overrides federal law. This section has been virtually repealed by the Court, which reached the astounding conclusion that it only applied to people born before 1879. Needless to say, the section does not say this.

Any such rights clause would simply be another opportunity for the court to decide issues in accordance with its own prejudices, rather than by the expressed will of the people at a referendum. This is what real politics is about these days, the struggle between the elites and the people. Sometimes the people have a win - look at the result of the Irish referendum on the Lisbon Treaty. Most of the time the lawyers just make up some implied clauses or other such rubbish to pervert the will of the people.
Posted by plerdsus, Monday, 30 June 2008 3:43:22 PM
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I have come across a few lawyers arguing against a bill of rights recently. Is there some huge of push on for a bill of rights? The lawyerly argument is always much the same as this one: trust politicians over lawyers. I guess it must be good advice. They, after all, should know.

But having heard this a few times, I have a question for you lawyers. We have a constitution. It is full of laws. As far as I can tell, no one is suggesting we get rid of the constitution. In fact I am guessing there is general agreement that we could not function without it. So, what is different about the laws in the constitution that appear to be so necessary, versus those that might be proposed for the bill of rights that are apparently so dangerous?

This page contains a nice list of the rights and freedoms we Australian's have:

The page remarks some of the things are guaranteed by our constitution and some are not. A few of the omissions seem to me to be critical to the maintenance of our institutions. Things like freedom of political speech, transparency of government, and the insistence no one be singled out solely based on their race, gender or political views. I gather freedom of speech was deemed so important by the our untrustworthy judges they "read between the lines" of the constitution in order to protect it.

So, again, what is so dangerous about these particular concepts?

plerdsus, the point the article makes it entirely moot if, as you suggest, the judges ignore what the constitution says. For that matter so is yours.
Posted by rstuart, Monday, 30 June 2008 7:11:35 PM
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I find it a matter of concern that Australia does not have a Bill of Rights, particularly in view of some legislation Peter Costello had planned to implement had the Howard government been re-elected. His proposal was to use the Trade Practices Act to silence certain forms of what I believe to be legitimate protest.

The legislation was inspired by animal rights protests, in particular PETA, and the Hahnheuser case (where ham was placed in a Victorian feedlot prior to a shipload of sheep being loaded for the Middle East). Mr Hahnhseuser was acquitted of the more serious charges, but the whole affair began to resemble undue influence over the Executive by the farming lobby.

The Constitution does provide for limited protection, and a referendum would be required to change it. Such referenda have been conducted but have rarely succeeded.

Generally speaking, I think protest organizations, by they environmental, animal protection, indigenous groups or any other should be wary of any legislation enacted to stifle legitimate debate and protest. Every free-thinking democracy in the world has some form of Bill of Rights, and Australia is simply a signatory to certain UN conventions in relation to human rights.

We should also be concerned that in the current legislative framework, in general terms, there is no guaranteed right to privacy

Posted by Nicky, Monday, 30 June 2008 8:08:07 PM
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I now consider a bill mandatory after seeing a further abrogation of our rights appear recently. There are new police powers to go into effect that will subject people who "annoy" authorities or anyone else to arrest and $5500 fines. This is absolutely outrageous.

A bill of rights is mandatory. It has to be a good one, not made by some stupid committee who are politically correct, but there has to be one.
Posted by Steel, Tuesday, 1 July 2008 2:52:25 AM
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