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Bill of Rights

Australia needs a Bill of Rights

Submitted 4/3/2006 By scmacpherson Views 10971 Comments 6 Updated 4/20/2006

Not only is Victoria's legislative framework in desperate need of a crucial re-evaluation, Victoria needs a Bill of Rights and follow the ACT's example accordingly. It is disappointing, and even embarrassing, that Australia is only one of three countries in the world that does not have a Bill of Rights.

For a country that promotes an image of a well advanced democracy that highly values the human rights of its citizens, Australia remains side-by-side with Brunei and Burma that have yet to adopt such a protective mechanism. How embarrassing. Even developing countries on a mission to achieve better democracy have a Bill of Rights, although maybe merely symbolic in some cases, they have at least made the simple effort of providing their citizens with something that they can be proud of and further enhance as social and political change arises.

Victoria needs to take this step, even if merely to represent the fact that we value human rights. But our potential by introducing such a mechanism is far greater than just words. We can achieve social justice, increase the human rights of EVERY Australian citizen and EVERY person residing in Australia (refugees), improve equality, and put and end to the covered up human right breaches that is so frequently occurring in Victoria and in some cases even supported by the courts and the law.

Who would think that a so-called advanced democratic nation such as Australia can still take political prisoners, silence people’s freedom of speech, and in particular do little to protect innocent victims of police harassment, violence, verbal abuse, and violation of human rights? There may well be statutory instruments in place that cover the above concerns, but it’s obviously ineffective and hence we require stronger protection, protection that can protect us from laws that violate human rights, laws that have been passed by the parliament we elected to protect our human rights and civil liberties.

If a persons rights have been breached, there should be a human rights commission established where a citizen can first take his or her complaint to. Such a human right watchdog needs to be publicized and well-known by every member of the Victorian community. If a case involving a breach of human rights is unable to be resolved by the watchdog / mediator, they should have certain arbitory powers to rectify the situation and even penalize those at fault.

This should be a body independent from the government and the courts, and even be able to arbitrate cases resulting from alleged human right breaches from government departments and institutions. They should also have a formal role in reviewing certain bills before being able to be granted royal assent. If a bill in question is in breach of the Bill of Rights, it can make recommendations to the government and order for amendments to be made.

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frankie t 25-May-2006

Specifically in response to kleo7036's list of counterarguments to a BoR (which are quite valid objections opposing a BoR):

1) Australia is one of the few (if not the only country in the Western world) without an entrenched BoR. Democratic protections are organic and can shift quickly and covertly. A BoR is to safeguard situations and ensure the continuation of a strong democracy and democratic protections.

2) While a litigious legal system is a great challenge within both the legal and social spheres, litigation about human rights would not be financially lucrative for lawyers. Rather, you will find that the lawyers who will be championing such causes are dedicated to causes of social justice. Moreover, the current legal system (at the Cwth level since this is the most appropriate jurisdiction) has various pragmatic safeguards to deter overzealous litigants - the most significant of which is simply the expensive nature of litigation.

3) While one of the features of a democracy is a voting process, other hallmarks include separation of powers (ie. parliament cant bug courts and vice versa). High Court Judges are appointed, in effect, by the Attorney General (also, the PM is appointed by the party in government). One shouldn't be so hasty as to say that just because someone isn't nominated by its constitutent, that it meanst there are undemocratic.

4) One of the strongest arguments in support of a BoR is that a BoR by nature, as opposed to legislation, is entrenched. The Australian Constitution is an entrenched document such that parliament cannot amend it without popular approval (in the form of referenda). While many rights are granted legislatively, they can easily be taken away. As such, the whole point of a BoR is to safeguard the nation from a radical government who is zealous in eroding human rights. A Bill of Rights is not necessarily broad and unspecific. That is a matter of construction and then subject to interpretation by the courts.

5) Efficiency, resource management and other akin phrases are often seen as guiding principles that form the dictates of society. I think we must recognise that if certain rights are so paramount that they must be entrenched in a BoR, then it is worth standing up for them over efficiency and bureaucracy.

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Kev - Lives - Here 24-May-2006

Arguments against those arguments presented:

1) We obviously don't have enough democratic protections when (a) governments can control free speech through sedition laws; (b) the right to silence and legal representation can be removed (such as for suspects under the "Anti-terrorism" Amendments)
(c) asylum seekers can be denied natural justice (by judicial review) when their claims fail before the Refugee Review Tribunal.

2) Lawyers represent people. People who litigate under the Bill of Rights are litigating for protection of basic things that shouldn't have been infringed on. People who say that lawyers would litigate too much with a Bill of Rights miss the point - they should be attacking the sources of infringements rather than victims (i.e. if governments didn't breach Human Rights then there would be no need to litigate)

3) Judges already interpret legislation with Constitutional direct and implied rights. Anyway, under the ACT model and proposed VIC model, judges don't interfere with legislation - they simply note where legislation contravenes Human Rights, thus leaving the final legislative call to Parliaments.

4) A Bill of Rights would encourage specific Acts to be made. It allows a base level of protection from which other measures can be taken.

5) Governments should be made to consider Human Rights, they're Human Rights after all! A Bill of Rights covers basic things that Australians consider governments should do anyway (such as the right to be treated equally before the law, the right to a fair trial, etc) and so it would not be a burden governments are not prepared for anyway.

One last argument that is made, that I forgot to mention previously, concerns the fact that a Bill of Rights was deliberately not included in the original Australian Constitution unlike the American Constitution.

However, just because a Bill of Rights was not relevant then doesn't mean we can't recognise that it's relevant now. We shouldn't be trapped by the actions of the past, nor past institutions if they no longer suit us. For example, in the past the Constitution provided for discrimination against Indigenous Australians. Does that mean we should keep those sorts of provisions in our Constitution?

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Kev - Lives - Here 24-May-2006

Counter arguments (from a google search, so there's probably more - see anything written by Piers Ackerman on the subject for example):
http://www.jcs.act.gov.au/prd/rights/arguments.html

Darryl Williams, the ex-Commonwealth Attorney General presents more arguments against a bill of rights:
http://www.ema.gov.au/agd/WWW/attorneygeneralHome....>Writingthe_Rights_-DoesAustralia_Need_a_Bill_of_Rights_(28_March_2003)

Essentially the arguments are:

1) A Bill of Rights isn't necessary. We have a strong democracy and democratic protections

2) A Bill of Rights would just allow lawyers more opportunities to litigate.

3) A Bill of Rights would be interpreted by judges, who aren't elected, and so this would be undemocratic.

4) Human rights violations are better protected by introducing specific legislative Acts to combat them, rather than a Bill of Rights that would necessarily be broad and unspecific.

5) A Bill of Rights could frustrate government action, and bureaucratic action would be slowed down because government would always have to make sure that the Bill of Rights was satisfied before acting.

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scmacpherson 20-Apr-2006

In response to Michelle's questions regarding counter arguments for a Bill of Rights charter, I have provided below the arguments below which were taken from the 'Report of the Human Rights Consultation Committee'. This consultation committee was established by the Victorian Government to consult the public as to whether change was needed in Victoria to better protect human rights. From over 2500 submissions, only 13% supported the arguments below.

• Our human rights are adequately protected – ‘If it ain’t broke don’t fix it’.
• A Charter would make no practical difference.
• A Charter would give too much power to judges.
• Human rights are not a matter for Parliament.
• A Charter might actually restrict rights.
• A Charter would create a selfish society.
• A law is not the best way to protect and promote rights.
• A Federal Charter rather than a State Charter is needed.

If you would like to read an explaination of each point above, you should read the final report at the following link:
http://www.justice.vic.gov.au/CA256902000FE154/Loo...

(Warning: Its very long but too interesting not to read) :)

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Michelle 09-Apr-2006

I was just talking about this topic this afternoon with a friend. We both agreed that a Bill of Rights is important and would be a great way of advancing human rights in Australia, but we were also interested in what the arguments against a Bill of Rights might be, although we could think of very few (maybe that our rights might already protected under other state and federal laws?) We figure there must be some more arguments though, otherwise we'd already have a Bill or Charter of Rights. Does anyone know what the counter arguments might be?

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