Australian Bill of Rights Bill 2017

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So Andrew Wilkie has tabled a bill of rights bill.

It’s only a legislative bill of rights, rather than a constitutional one, so it won’t be quite ascertain as constitutionally protected rights are. It also has enough in it to enable other laws to continue, but it appears to be aimed at providing similar types of protections as the Victorian Charter of Rights and Responsibilities. In particular with regards to the ensuring conformity with it for all subsequent legislation to be passed.

The text of the Australian Bill of Rights Bill 2017 is available and it is definitely worth a read. The actual Declaration of Rights begins on page 24 of the PDF, which is page 20 on the page itself.

Most of the rights have been adopted from existing international treaties. In particular the International Covenant on Civil and Political Rights and other United Nations OHCHR Core Instruments.

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Constitutional Change is difficult (which is both a pro and a con) and it is an uphill battle to convince the whole nation on an issue. As we’ve seen, just one issue of equality before the law (one of the most fundamental legal principles) to to also apply to homosexuals is hard enough. In 2017. 68 Years ago, Sodomy was a crime carrying the Death Penalty in Australia. Societal change is slow.

A Legislative Bill is the perfect first step. Good on Andrew Wilkie for doing this.

Hopefully it passes, and Australians see the value for years to come and it becomes constitutional in the not too distant future.

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It’s pretty good. It neglects privacy, though, skating over it in Article 30 in a way that wouldn’t offer any effective counter-balance to the wrecking of privacy by the surveillance state.

And this part - what is it getting at?

A law may not authorise a person or group to express information that advocates national, racial or religious hatred and incites discrimination, hostility or violence.

It looks like a swipe at the marriage plebiscite but I am not sure if that’s a correct reading of its intent.

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I only found one issue with it

Why limit to national racial or religious hatred? Should be all forms of discrimination, hostility or violence.

There should also be some other kind of limiter, seems overly broad with the ‘hostility’ aspect, and how about discrimination within private groups of common interest? That is in contention with freedom.

To use a topical example (same sex marriage debate): This would make it illegal to call a No supporter a “bigot”.

There is no way this would pass with that bit in there as it is, religious people will see this as an attack on their Freedom.

edit: Added the “bigot” example.

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I think it’s more likely that it’s trying to balance the freedom of expression article against existing anti-discrimination legislation. Otherwise it would be too easy for it to conflict with itself and cause more trouble.

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It’s adapted from an earlier attempt from around 2000 or 2001 and the “national, racial or religious” part is the way of referring to political organisations, ethnic organisations and religious organisations. Which is where the concerns have principally been regarding terrorism related things. It’s not aimed so much at all hatred and violence as it is with the kind of violence which is intended to attack or disrupt the nation-state.

That’s why sexism, sexuality and similar things aren’t included in the example.

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Why tie the Bill of Rights to a referendum for updating?

There could be a constitutional provision, saying that additions to the Bill can be legislated by parliament, but any removals need to be passed by both the parliament and the public, in an election process that can be a national simple majority, or a referendum majority.

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Looks like we posted the same thing at the same time!

It could probably do with some better wording

I think that would break the system. Constitution is supposed to be hard to change (add or remove), if it’s easily to add but not remove that could become an instrument of abuse to shoehorn anything into it. It needs to be locked down tight for it to work.

Best pathway is a regular law, then constitution later.

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That depends on how the Bill of Rights is to be interpreted.

Would it be like a constitutional amendment where legislation can’t conflict with it, a regular Commonwealth law or would it just be a ‘spirit of the law’ document that advises judges must take these rights and values into account with their judgements?

If it’s just a Commonwealth Law, then the constitutionality of the law would need to be tested, at least theoretically.

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Is there anything in the current constitution which could conflict with this Commonwealth Law?

Perhaps religion?

116 Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious
test shall be required as a qualification for any office or public
trust under the Commonwealth.

I think that the easiest/realistic pathway is to get a bunch of progressive legislation through… Bill of Rights, Aboriginal Rights, etc. and then at a future date have a look at constitutional reform to lock these things in at the same time.

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There might even be support for a republic again in the future, in which case the constitution will probably be reformed at that time. Plus other little issues like Section 44 might be popular for change, depending on the High Court decision.

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No, it doesn’t clash with §118 of the Constitution. That section is essentially just freedom from having a state sanctioned religion imposed upon people. The only reason it is in there at all is because most of the “Fathers of Federation” were Protestant, primarily loyal British subjects in the Church of England. Whereas most of the population were Catholic, mainly Irish and Scottish Catholic.

Back then the greatest fear was that Australia would turn into another Ireland, with constant revolts against the government and sectarian violence. They recognised that anyone wishing to stir that sort of thing up would get people riled by saying, “you have to join CoE” and so on. So they prevented that by locking that freedom into the Constitution.

They also considered an American Bill of Rights and deliberately chose not to include one. Bastards.

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That part appears to imply that the law could or should be “authorising” who is allowed to speak and what they are allowed to say. And that only nice speech should be authorised. Whatever you think about that proposition, it’s a very odd thing to put in a bill of rights.

I am probably misinterpreting it. Legal language is often like programming code- full of meanings that aren’t apparent to outsiders.

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Only if that bit were on its own.

You are. Article 4(2) is expected to be read only within the context of 4(1). 4(1) provides the freedom of speech, while 4(2) provides the caveat that that speech does not provide a defence against the existing anti-discrimination legislation.

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Yeah, fair enough. And yet… the whole point of a bill of rights is to check state power, as the US one does. If the “protection” can overridden by legislation then it’s not really a protection at all. It may even be harmful since it makes a pretext of protecting something without actually doing so.

Same with privacy in this BoR. Some rights they’ve made absolute but they squibbed on the really important ones.

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Not entirely, it would still operate as an extra check on assessing future legislation, just as the Charter of Rights and Responsibilities does here in Victoria. All proposed legislation must be assessed according to the Charter to ensure it doesn’t go too far over the line. That’s where this Bill of Rights is more likely to have an effect.

Which is, of course, why an actual rights document within the Constitution itself would always be better.

Oh, the bit about not ceding power to the judiciary is and always has been complete FUD and nonsense. The judiciary always has a role in deciding and interpreting law. That is, in fact, the sole purpose of the judiciary. No, keeping these things out of the COnstitution has more to do with senior civil servants wanting to retain their power and politicians believe they actually have the same.

It’s not entirely the fault of Jefferson, Franklin, Madison and company, not given what they were working with at the time. Back then privacy was pretty much a given, all it took was closing the door. It was access to firearms that was more relevant in the context of the time they lived.

Now, of course, privacy is far more valuable, but half of them are still so distracted by their guns that they don’t realise that the real threat is an eye in the sky armed with a hellfire missile… While the rest are swamped with fighting off assorted other jack-booted moves or prosecuting their own mini-campaigns within their insular political circles. While the rest are just trying to avoid getting shot, by the first group who ought to look up, or by the cops, or by the South American drug cartels adter they get shipped back over a border they’ve never seen, to countries they don’t know.

Which is a round about way of saying that, yes, they had great potential, but now they’re rapidly plummeting into decline.

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Yeah, the FUD about judiciary is generally overstated, especially when you are dealing with negative liberties.

I think I was unclear there - I was talking about the Wilkie BoR and its absence of privacy protections. The American BoR is not perfect either of course. But like you said, privacy was not really a thing back in the day.

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Right and it’s not like, of all people, Andrew Wilkie doesn’t understand the value of privacy and to be free of surveillance. Not with his background and that of his wife.

There are a few other things that are somewhat less than clear here too.

For example, take a look at: 12(2), 13(1), 14(1), 14(2), 14(3) and 15.

Would those in combination be enough to guarantee a woman’r right to an abortion? It’s like the whole thing is geared towasrds delivering it, but then they chicken out and maybe even do worse. Firstly due to not just confirming it outright and secondly by following those rights with a whole bunch which would lean towards preventing access to that type of reproductive healthcare. Not to mention the continued bias which places the traditional nuclear family at the pinnacle of all human existence. Even the phrasing of the opening of Article 17 underscores this bias.

Side note: if I see any male member of this party pipe up with ill conceived comments and effectively non-existent research while indignantly trying to make “concerned” statements on this topic and using terms like “late term abortion,” “partial birth abortion,” “after week N, only in a medical emergency” and so on; you will get flamed and you will get told to shut the hell up. Every single one of those arguments are completely spurious crap and I do, in fact, have the great, big, enormous piles of research to prove it. Obviously anyone who has seen the pinned tweet on my Twitter account should realise that I’ve had plenty of practice winning this argument already.

So there are som useful medical safeguards in there, but because there is only have the right to refuse any medical treatment without the right to obtain certain necessary treatment, it would be possible for the law and doctors to force a woman to take a pregnancy to term against her will. That may not be quite so likely in Victoria these days or in Canberra, but you can bet your bottom dollar that it’s already happened in Queensland. In fact, I’m already on the record regarding precisely this type of issue (scroll down about half-way through that page; also archived here and here.).

I have no doubt that women, most likely young women, are receiving incomplete or inadequate options in Queensland due not to the resources or their circumstances, but due to the religion of their doctors. In that kind of environment a Bill of Rights which does not explicitly provide for complete personal and bodily sovereignty is one which will not truly deliver equal recognition of those rights.

So while it might, arguably tick the marriage equality box fairly well, which obviously has some additional relevance currently, it misses a far more fundamentalissue. Presumably this is political and that the intention was to simply avoid talking about abortion in order to secure the support of either religious organisations or organisations with religious ties.

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Are you just feeling really aggressive today?

I don’t think I’ve ever seen or heard of anybody of any sex/gender in or around PPAU suggest an anti-abortion position. Have you?

I could be wrong, but I tend to assume it’s just religious extremists, and we don’t get too many of them in PPAU.

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The last person I had to seriously make the case that no one in their right mind waits more than 5 or 6 months to get an abortion and that by that point they’re all medical emergencies was … drum roll … our very own David Crafti.

He remained unconvinced too, so I was expecting the second round.

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