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Bill of Rights

Last week I posted a thread on the Bill of Rights, saying that I welcomed the move by the federal government to start the consultation process on what an Australian Bill of Rights should contain.

We then had various comments such as comments that Australia does have a Bill of Rights (which is false) and how a Bill of Rights would give the judiciary more power than the parliament (which is also false). The campaign in Australia is not for a US style bill of rights.

Julian Burnside QC – who is one of the most experienced human rights barrister – has written an article in the latest copy of Amnesty Internationals Human Rights defender magazine. He details some of the basic human rights that are not protected by law, including:

  • the right to life
  • the right to be free from torture
  • freedom of association
  • freedom of religion
  • freedom of belief
  • the right to enjoy a family life
  • the right to privacy

The only real rights we have in this country are those covered by the International Covenant on Civil and Political Rights which was signed in 1967.

As Julian Burnside says:

It is imperative that people look at the rights protected by a charter of rights and decide whether those rights are worth protecting for themselves. If they are, the they’re worth protecting for everyone else.

Are those who are against a bill of rights also against rights for everyone?



17 Responses

  1. Hi Joni,

    It is possible to be for ‘rights’, but at the same time be cautious about a new legal instrument: a ‘bill of rights’.

    That everyone has certain rights is surely not in question here. What is arguable is what those rights are, or what the law says they should be.

    Rights for one individual usually entails obligations for another. This is where we need to be careful.

    Many of Julian Burnside’s right’s sound like things everyone would like; on first reading they even sound like things everyone should have a right to. But when you look further, are they really?

    For example: Freedom to enjoy a family life?

    Does this mean if you aren’t enjoying your family liife, you should sue someone, because that’s your ‘right’? Or if you don’t have a family life, someone should provide you one, because that, too, is your ‘right’?

    No. Of course not. There are some basic human rights. But only some.

  2. (Please excuse the unnecessary apostrophe above: Burnside’s em>rights, not right’s.)

  3. Or if you don’t have a family life, someone should provide you one, because that, too, is your ‘right’?

    In the case of gays and refugees, the right to a family life (and all that entails) as a matter of equality and equity with other people, could be paramount.

  4. I very much respect Julian Burnside, but I think the list is too open ended, as in too open to interpretation or misinterpretation. For example if your religion means burning witches at the stake where to from there? Ah yes, but one counters with freedom of association viz witches or disbelief in witches countered with witches freedom of belief. But which tenet is the dominant one?

  5. Why do I always get nervous with Bills of Right?

    They always seem to narrow “rights” down and avoid the responsibilities…

    If memory serves me correctly(bang the gong, get it on!):

    In a democracy you can do whatever you like, unless it infringes on other people’s rights, or the law (common or statute)…

    …a reasoning I often use on smokers, who insist on thier right to smoke and infringe on my right to clean air…

    …advocates of a Bill of Rights often understate or ignore the power of our Common Law system…

  6. Just to be clear, the list above are some of the things that our current legislation does not contain.

    And why are we the only western democracy without any form of bill of rights?

  7. Well one is missing – the right to death!

  8. i admit that a Bill of Rights has a superficial attraction. But, and it’s a big, ‘But’! Really important concepts such as ‘rights’ are very, very slippery – difficult to define in terms of necessary and sufficient conditions. Not difficult to define what a cat or dog is but does anyone what to define what ‘health’, ‘education’ or ‘justice’ is and that’s just three examples.

    Yes it’s easy to come up with a list of what is ‘necessary’ to legitimise those concepts but is anyone prepared to be definitive. Anyone prepared to advance criteria that cover all possibilities.

    TB has alluded to the ‘right to death’ and I am assuming that he means the right to choose one’s time of death and not be kept ‘alive’ (also difficult to define in terms of necessary and sufficient conditions) because of some religious principle as advanced by others.

    Personally, I think his specific point is a valid one and it also raises the more general point that to define a ‘concept’ such as ‘rights’ guarantees limitations.

    Does anyone want to limit a peron’s rights?

  9. Not ‘peron’ but ‘person’. Note to self. Spell-checkers are fallible.

  10. The US Bill of Rights is sometimes held up as a model. But the President of the day tends to rule and define what important concepts ‘mean’,. Note this cartoon and comment beneath


    “[Obama] says we only have one president at a time. I’m afraid that overstates the number of presidents we have.”
    — Rep. Barney Frank


  11. “ but I think the list is too open ended, as in too open to interpretation or misinterpretation”

    That is exactly the whole point of pushing a “Bill of Rights”. The law is supposed to be blind and objective not made as gray as possible to be bent or twisted. Is Australia some sort of “gulag” or totalitarian state that suddenly needs to be rectified? You guys seem to live pretty comfortable lives to me? Fine, put some legislation out there but for what reason? Again, change is fine but not simply just because, there should be a reason for it. It is obvious that those pushing this agenda are simply looking for some way to muddle the legal definitions to fit their agendas.

    Joni, instead of trying to take the “sanctimonious” stance that those who oppose or are denying you your “rights” by asking questions, please explain to me what you are being denied and why a “Bill of Rights” is necessary? Every other Western nation has one so, so should Australia? Is that the only real case for? I don’t think it is helpful to constantly push your positions from a standpoint of moral superiority when clearly it is your position that needs more explaining. No offense, but many are really tipping their hands on this one. “Family” etc kind of tells me where their coming from because clearly there is no legal standing to use in its definitions so let’s try and invent one? I know the tactic as it is being used here, let’s take a “benefit” and try to turn it into a “right”.

    “how a Bill of Rights would give the judiciary more power than the parliament (which is also false)”

    Again, no offense mate but that is just a bold face lie. I can sight case after case of where unelected officials decided to use “muddled language” or bent current language to push and agenda. California’s latest fallout from Prop 8 is clearly an example. The folks vote, a judge strikes them down and legislates to validate their decision where clearly there is no precedent. The folks take it to the ballot again it passes, again, now the unelected few are attempting to find any legal loop hole they can to try and strike it down once more. It is a disgrace to democracy and a prime example of a few taking democracy away from the many. A “pro bill of goods” is simply being pushed to make the law of the land as ambiguous as possible so that unelected judges can rule by fiat and special interest groups actually have a legal leg to stand on instead of just rhetoric. This has nothing to do with “rights” and everything to do with trying to build a legal framework in which to push agendas through that would never pass muster with the electorate. So how about a little honesty on this one……

  12. Sparta,

    Democracy is not meant to be tyranny by the majority.

    A true democracy is judged by its treatment of minorities.

    Prop 8 is a denial of basic rights enjoyed by the majority to a minority and is unconstitutional which is why the courts have been able to rule it so.

  13. Sans,

    Wrong! Marriage is not a right my friend. Understand this, there is nothing in our Constitution to give any weight to such an argument. Simply why Californian justices attempted to “write” it in and why the electorate had to turn around and do the same. The Judiciary is not the legislative branch! It is why even in Mass. they refuse to allow the electorate to express their views. You can call a decision you do not agree with “tyranny” all you want but it hardly makes it so. Despotic indeed that a few can “dictate” their worldview to a majority that have countlessly voiced in favor of something else. Even when this same “tyrannical” majority has offered to give them the same “benefits” under a different name. This has become a battle over symbolism at this point but some prefer to push a delusion. A “Bill of Rights” as I said before is just another way to muster a legal argument for some where currently they have none.

  14. Does marriage have to be written into the constitution to be a right when it’s a right enjoyed, expected and accepted by the majority? Why then should a minority be excluded from it?

    Think about the laws states in your country had which denied the right of marriages between white and black people. And all the other racial laws aimed at African-Americans. Their denial of rights was not in the constitution: it actually was in complete contradiction.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

  15. Tony of South Yarra makes some interesting points, but overlooks a couple of important considerations.
    First, the rights that look so obvious are not legally protected: parliament can take them away at the stroke of a pen. There is not much risk of that happening to people who are part of the social majority, but it has already happened to people who belong to unpopular minorities.
    Second, the right to enjoy family life does not mean you can sue someone if you are having a family life but not enjoying it. What it means is that the government cannot put unreasonable obstacles in the way to prevent a person or group from having the opportunity to marry and have a family.
    Incidentally, Tony’s post raises an important point: the fact that your human rights are violated does not give you a right to sue for damages: the Victorian Charter is very clear on that. This means there will be no “lawyers feast” happening if we get a federal Human Rights Act!

  16. “Their denial of rights was not in the constitution: it actually was in complete contradiction.’

    No, the constitution was quite clear on that one and why “The Civil War” finally came to be. Unfortunately, nothing in it pertains to “sexual” preference and what you cite is the “Declaration of Independence” not the Constitution. Governments grant “rights” that discriminate all the time as I am uneligbile for “affimitive action” but my rights are hardly being violated. I will be arrested if I drive without a liscense, my rights are not being violated. Stop confusing a “right” with a “benefit”. Comparing the plight of those pushing for a benefit with those that endured “slavery” is a flipping insult!

  17. Julian, if you are still here. I would love to ask. What do you see as the interaction between a Bill of Rights and Common Law?

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