The concept of a bill of rights, or some equivalent, is not new to Australians. It is a political topic that has been raised numerous times in our past, and for one reason or another, has been defeated.
But now, I feel that arguments against such a change to our legal system are lacking in the current, and potentially future, landscape of our country.
Since federation in 1901, Australia's constitution has remained relatively unchanged. Whilst there have been amendments made, largely the original intention has remained. Thus far in our history 6 versions of our constitution have been ratified (including the original), with the latest changes in being accepted in 1977.
For those that are unaware, Australia's constitution defines mostly how our political and governmental systems are to operate. It contains the following provisions:
- The Parliament
- The Executive Government
- The Judicature
- Finance and Trade
- The States
- New States
- Alterations to the Constitution
You will note that nowhere in the above is there a mention of any inherent rights of the people (not even in the Miscellaneous section). This lack of inherent rights makes Australia the only Liberal Democracy in the world which does not protect the rights of its people by constitution.
Well, OK, the above statement isn't entirely true. The constitution does protect the right to vote (Section 41), the right to trial by jury (Section 80), freedom of religion (Section 116), protection against acquisition of property on unjust terms (Section 51), and prohibition on discrimination on the basis of state of residency (Section 117). The constitution also contains an implied right to freedom of political communication, although this only implied.
The remaining protections that we enjoy are based solely on legal precedent.
The Arguments Against
The opposition to and arguments against some description or form of a "Bill of Rights" in Australia are well documented at this point. For the sake of completeness, lets rehash:
- A "Bill of Rights" will limit our rights.
- It would limit the power of government to govern and provide an "undesirable" amount of power to the courts.
- Parliament can be relied upon to protect our rights and not introduce legislation that restricts or removes them.
- A bill of rights will be constitutionally hard to change.
- It will only benefit criminals and minorities.
- It will clog courts with claims, and this is undesirable to Australians.
The Arguments Against are No Longer Valid
Firstly, I'd like to address some low hanging fruit in the above list of arguments against a bill of rights.
Argument 4. If the Bill of Rights is Entrenched (that is, incorporated into the constitution), then that IS EXACTLY THE FUCKING POINT!!!!!!!! Do you really want a corrupt government to change your rights on a whim? or change your rights to suit their own agenda? Having an Unentrenched Bill of Rights is almost useless because politicians can amend or change or that particular type of legislation much more easily and, in the event of a corrupt government, reduce your rights to zero. That is a rather cynical point of view, I know, but should our legal system not be set up to protect us from the worst case scenario?
Argument 6. If the introduction of a Bill of Rights is the catalyst for mass legal proceedings then clearly things have been down right shit for a while. You cannot blame a legal instrument designed to protect peoples rights, for people actually standing up for their rights. That is insanity at best and probably means you're on the wrong side of those rights to begin with.
Argument 5. No. Of course the rights will be extended to minorities and criminals. That is the point, that there is a very specific baseline of rights that our society abides. Does that mean that criminals and minority will be the sole benefactors of such an instrument? Of course not, and if that is your view, I would dare say that is from a position of ignorance rather than of informed decision making. Go back to the drawing board and get a better argument you donkey.
Now to start addressing the Meat and Potatoes.
Argument 1. A Bill of rights will not limit your rights. It is the minimum baseline that is to be afforded to the people. The law can and should expand upon the minimum. The bill is designed to prevent the law from encroaching on your most basic rights.
Argument 2. The implement would not restrict the ability of a government to govern, instead it sets boundaries on the relationship between government and people. It says to the government "This is mine, you cannot touch this". And if the government does not respect your rights, that is a sign the government is not serving you the people and they should be removed from government. It really is that simple.
Argument 3. This is the crux of my rant right here. Maybe we used to be able to trust the government, that time has gone. It seems to be almost like clockwork that whomever is in government in this country, they introduce some new bill that slowly removes and revokes freedoms and liberties that we once enjoyed, and then they vote it into an act while the nation is looking elsewhere. Sure the media has something to answer for in this, but ultimately the responsibility lies with the elected officials.
There are supposedly measures within our system to prevent a rogue government. Mainly the appointment of Her Majesty's representative the Governor-General. The GG is the final step in the process of the approval of acts of parliament, he or she is meant to be the "keeper" so to speak. They are the final layer of protection for the people on behalf of the Queen. And yet, we still have draconian laws past that let our government hold people for up to 14 days in gaol without charge or notification of their crime, and no right to legal counsil during that time.
Take for example the "Trusted Digital Identity Bill". Did you even know that was even up for consideration? I'll forgive you if you didn't, hell I didn't. Thanks to a friend of mine I was made aware of it. After being told it existed I went looking. But it is no where to be found except for a propaganda webpage put up by the federal government. The webpage references legislation, but the legislation is not available for viewing ... Hmmm ...
What about the metadata retention laws? What about the proposed "Cyber Troll" Laws? These are all laws that are supposidly meant to "keep us safe", and maybe they do, but at what cost? and what is the real risk?
With the recent history of legislation, the current governments, and systems can no longer be trusted to respect our rights. We need to set our boundaries, and ensure those boundaries are respected.
Attempts at a Bill
In 2001, 2017, and 2019 there were attempts made by various politicians to introduce an Unentrenched bill of rights to parliament. At each stage these bills were defeated. After reading the 2019 variation, I can confidently say that these particular politicians were on the right track, but they did ultimatly miss the mark in the substance of the proposals. That doesn't mean that we shouldn't keep trying however. I also belive that what ever form we settle on, the Bill of Rights needs to be Entrenched within the constitution.
If you belive like I do, and it's time for Australia to have a bill of rights, then you need to reach out to your local member and have them do their damn job for once and take these issues to Parliament. I've included below references to claims made in the rant. That's it, I'm exhausted, rant over, bye.
For those wishing to view the constitution or the mentioned bills for themselves, please see the links provided below:
P.S. I did take a stab at a first draft to some rights for incorporation but I cut it out of this rant because I didn't think this was the place for it. I didn't want to be the armchair politician, and I really do want to contribute. So let me know in the discussion below if you want to see them and I'll post them elsewhere for review, and if you like them, tell your local member.
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