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.

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.

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.

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:

http://www.dfat.gov.au/facts/democratic_rights_freedoms.html

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.

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

Cheers
Nicky

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.

Joo-Cheong,

When I have heard Australian politicians justify their non-acceptance of the Bill of Rights, usually on the basis that our Courts operate of the basis of precedent and, precedent is more flexible than a Bill of Rights. But I think said posit misses the point: Why do we need a Bill of Rights?

An Australian Bill of Rights would exist to hold Parliaments and Courts accountable to basic intrinsic standards and place the Rights of the People people above those whom govern and those whom adjudicate. Continuing a tradition of Referrenda, would permit amendments.

“This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.” - FDR

Roosevelt believed the above to represent the US Bill of Rights, as it stood in 1944. He felt it inadequate, because it did not include, "the pursuit of happiness".

Relaredly,

Three rights, that I posit are necessary, can be on conflict:

1. The Right of Free Speech
2. The Right of Security
3. The Right of "Equal" Protection

As one cannot call-out fire in a theatre, under free speech; Security, ensuring the freee enjoyment of one's life without hinding, must be maintained.

However, not the exclusion free speech and equal protection. Parliament should not be answerable unto itelf, but, to the People for the Stardard. Voting undre our two-party system is merely a dotted line control.

Moreover,

The test question for the existence of Facism or State Capitalism [as opposed to Market Capitalism] or other political system is;

In whose interests does Government act to protect?

[Cite: Wassermann. Modern Political Philosophies and What they Mean, 1944].

- The employer above the employee?
- The company above the consumer?
- The politician above the citizen?

What do you think?

If one posits the left-hand entities, surely, we need a Bill of Rights to make Parliament accountable to us.

I think the solution is quite simple:

(1) We need not a Bill of Rights but rather a Bill of Wrongs (call it a Bill of Rights but it purpose is to codify prohibitions on government and court power). Becuase to define a right is to limit another right. Therefore, the rights shall be reworded as such:

Parliament shall pass no law which impinges on X...unless it...
Parliament shall pass no law which prohibits on Y...insofar as it...

The clause may go into detail of it means.

(2) Free speech and security do not conflict: you can still have hate speech an but not hurt anyone. Considering the right to bodily integrity would come into play, then security prevails. But the real issue then would be the efficiency of law enforcement and the like. Anyways, if clauses conflict courts should analyse which interpretation 'promotes individual liberty to a greater degree' and go along with that interpretation (in this case hate speech of neonazis vs the bodily integrity of an entire minority) and

(3) In addition, a Constitutional BORs would allow Parliament to veto spurious interpretations of the High Court if a 2/3 majority can be attained in the Senate. And you would allow Parliament to define such things as when 'life' begins - not the courts. So a Bill of Wrongs would also be a prohibtion on the power of the Courts.

(4) Extend the rights to the law of torts (if, however, tort law conflicts with an exiting right/prohibition, then codified rights prevail)and

(5) Finally, allow a 2/3 majority of Parliament to add on new rights/prohibtions but to remove them you need a Referendum.

That I think solve most of the problems with a Bill of Rights.

Margaret Thatcher said it best...

"We want a society where people are free to make choices, to make mistakes, to be generous and compassionate. This is what we mean by a moral society, not a society where the state is responsible for everything and no-one is responsible for the state."

I am led to believe that the only right we have in Australia is free and uninterrupted travel whilst on lawful business. No other rights are explicit.

Common sense and our Judaeo-Christian belief system tend to make other rights implicit. As long as we don't forget that BEFORE rights come responsibilities..