Expanding our bill of rights policy?

I was recently flicking over the South African Constitution (as you do) and Chapter 2 really stood out: http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf

This is a very comprehensive list of rights and exemptions which I think we could import a lot of into our own bill of rights policy. Note also the table near the end: it lists out which rights are absolute, which is a pretty cool thing to include.

This was adopted in 1996, so there’s about twenty years of context to work from in terms of interpretation.

I just wanted to start a discussion on whether people found any rights particularly interesting (and therefore we should import) and any rights we shouldn’t import, or should modify, or whatever.

I think making our policy a bit more comprehensive would be fantastic :slight_smile:

I haven’t yet had a chance to read the SA constitution (I’m still at work, will read it when I get home), but one gap in our existing policy that could be worth addressing is the issue of cognitive liberty:

Cognitive liberty, or the “right to mental self-determination”, is the freedom of an individual to control his or her own mental processes, cognition and consciousness. It has been argued to be both an extension of, and the principle underlying, the right to freedom of thought. Though a relatively recently defined concept, many theorists see cognitive liberty as being of increasing importance as technological advances in neuroscience allow for an ever-expanding ability to directly influence consciousness.

It could be argued that this has some degree of overlap with our drug policy, in that, (at least in my interpretation) cognitive liberty would imply a right to personal-use of psychoactive subtances.

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On the whole I quite like it; though I suspect the drafters were paid by the rule rather than by brevity. Some sections (looking at 9(3)(4)(5)) appear to too-specifically state items and then back-pedal to the point they ought to have started from—then again I am a bit of a minimalist in terms of logic.

I agree that this is an important consideration. Perhaps a right to freedom of thought and freedom from interference with thought processes. I caution against being too specific. The broader the principle the more robust it becomes in terms of dealing with new developments. If we can cover a number of bases without using jargon, then it limits potential interpretation issues.


Yeah, I’m not too keen on that level of specificity. It’s a bit too wordy. If we started adopting parts of it, we’d have to cut it down to the principle not the detail.

Having now read over the SA constitution, some stand-out points that could be worth adopting:

  • (23) Right to fair labour practices, right to collective bargaining, protection of unions
  • (24) Right to safe environment & environmental protection
  • (26) Right to housing
  • (27) Right to food, water, social security
  • (29) Right to education
  • (32) Right to information (FoI++)
  • (33) Rights pertaining to people arrested, detained, accused (Much more comprehensive than our current policy)
  • (37) Strict time limits and restrictions on what can be done in a declared state of emergency, such as:
  • Can’t grant state / any person immunity for actions
  • Can’t contravene this section of the of bill of rights in any way
  • Strictly controls which rights can be temporarily abridged and to what extent
  • Protects rights of people detained in a SoE
  • (39) Specifies the context in which the bill of rights must be interpreted in courts/tribunals/forums

The limiting to ‘negative liberties’ (freedom from government constraint) was very intentional. ‘Positive liberties’ (entitlement to be given stuff by others) function poorly in a bill of rights. They inherently clash with many negative liberties (and with each other). This can lead to choking of the courts and excessive power being vested in legal (as opposed to elected) officials. They can create quite perverse and unforeseeable outcomes. (For examples refer to articles like this:). Better to legislate positive liberties in a way that allows for discretion and review.

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I’m not sure the article you linked to actually backs up your argument @MarkG, with statements like:

A better approach would have been introduced civil unions (as they have now under the status quo) then marriage.

without actually backing it up with any argument or evidence whatsoever.

It concludes with:

Australia does not need a bill of rights but a bill of wrongs (i.e. a prohibition of government power, not more government power).

First, a bill of positive-based rights could limit the scope of policy ideas needed to starve of positive liberties in the first place.

Second, most of the rights themselves would be unenforceable.

Third, a bill of positive rights creates a democratic deficit and allows politicians to evade the big issues involved with policy deliberation.

Therefore, we must be alert (and perhaps even alarmed) of any bill of rights proposal. We must make sure some topics are “off limits”. The best attitude to have towards a bill of rights is the sort of attitude we should always take towards our government: beware, beware.

A bill of rights is meant to be a boundary for government, and should they go beyond it, the courts have the right to strike down their legislation. I don’t necessarily buy the argument that “judicial activism” is a thing (if it even really exists in most jurisdictions that haven’t fucked up their courts like the US has) that is a problem.

I was interested in the fair labour practices too. It’s something that isn’t featured in “traditional” bills of rights as far as I know. A lot of these rights appear to come from international agreements (UDHR, ICCPR, ICESCR, etc) but are included in such a way that the state has no option but to abide by them. International law being as it is, there is a lot of discretion as to how they ought to be applied.

Absolutely the right to housing and education are interesting, and the right to information is a pretty impressive inclusion. I’m very happy for a bill of rights to enshrine the fundamental values of the nation, rather than lofty principles with limited practical application.

I note that our bill of rights does cover a number of rights not typically recognised, such as the “right to death” and the “right to control health”. It’s also interesting that none of these rights you picked up on appear to be in our policy — did you deliberately omit ones that are already included?

I think you’ve both raised some interesting points. Prohibitions on government power may be preferable to entitlements. Certainly, upon skimming the policy, it is apparent how this approach operates. I wonder then if all these rights could be worded in a prohibitive way, for example: “the state must not prevent any person from receiving education.”

Judicial activism is an interesting issue. The High Court does tend to change approaches every decade or so, as the majority of the court is gradually replaced. A lot of the early precedents set before 1950 have now been overturned. A number of minority judgments, and I say this without backing up my statement so accept it as anecdotal, are now accepted by the majority, and sometimes courts at all levels with favour a different approach (usually a high-level decision in the UK, sometimes Canada or NZ).

I’m not convinced this is a problem. It may lead to some unpredictability, but it does mean that the (common) law changes over time. I expect in a few years the view of Lord Mustill in R v Brown will be accepted and sadomasochistic activities won’t have much of a legal fetter.

Back to whether positive rights can be enforced: that’s a very good question. It can be difficult to achieve I would agree. But I think it would be possible to frame most positive rights as negative rights, simply by changing the way it is put. “The right to equality” could be “the right not to be discriminated against.” It doesn’t take much imagination to change the rest over.

“A bill of rights is meant to be a boundary for government” - this is exactly correct, and exactly what a negative-liberty bill of rights does. Inserting positive liberties takes the bill of rights beyond this simple, transparent concept and into something much more murky and unclear. Entitlement-based “rights” will inevitably extend state power or judicial power (because how else can such a right be delivered?) and therefore conflict with the attempt to put boundaries on the state. This would confuse the mandate and undermine the core function of the bill of rights.

The framing of positive liberties as negative liberties is new to me. As long as “expanding” doesn’t lead to undermining the core point of the policy I guess it’s OK?

Yes - I was highlighting a few that stood out to me, after a brief skim over it, as things that could go well as additions to our own policy.

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If the core point of the policy is to restrict rather than compel, I think it would be possible to do. Rather than saying “the state must provide” we say “the state must not prevent.” I’ll go over a few rights we might want to include and see how well they transfer from positive to negative.

International law seems to be a better way to compel states towards doing things anyway.


I don’t at all like the chances of this ever becoming codified, but don’t most “good” laws fall under these basic directives:

  1. Try not to be stupid.
  2. Try not to be cruel.

—all the rest are merely fripperies or shades of meaning?

Cruel and stupid are significantly more prone to interpretation than anything proposed here so far, haha.

Interesting. I thought the word which might trip people up was “try” - indicating intent rather than necessarily results. I simply did not imagine wanton stupidity or cruelty to be difficult concepts. Is this perhaps one of those Principia Mathematica moments where it takes many pages of dense logical proof to establish 1+1=2?

Seems to be a fair comparison, because there’s a wealth of evidence going back a couple of thousand years demonstrating people don’t seem to be able to deal with these concepts.

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I also like the restriction on state power approach. The first amendment to the US constitution does this rather successfully.

Looking forward, with the current trend of our increasing reliance on technology, the increasing adoption of cloud services, and the increasing amount (and value) of personal data generated by each of us in the course of our day-to-day activities, I do wonder whether it may be worthwhile enshrining some rights relating to personal data in our bill of rights (or, if that’s not appropriate, perhaps under another policy).

I was having a read of the EU General Data Protection Regulation earlier. Ignoring the farcical (and antithetical to transparency) “right to be forgotten”, there are some decent ideas therein; principally:

  • Right to be informed of data/privacy breaches
  • Right to data portability

I’d be great to have some discussion as to whether these kinds of rights are significant enough to merit inclusion in a constitutionally-enforced bill of rights.

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Another document that has a similar set of rights to the South African constitution is the Charter of Fundamental Rights of the European Union
It also includes a right of access to documents, although it unfortunately also includes protection of intellectual property

I do personally like the idea of including some of those ‘positive liberties’, but I agree they’d need some sort of differentiation as they aren’t the same kind of strict legal rights as the others, certainly not what we would understand as part of a Bill of Rights in the American sense, perhaps better called a Human Rights Charter if it included this further category of rights. Some of them perhaps could be expressed in reverse, or somehow we make them a separate category which we say are rights to be ‘progressively realised’, ‘fulfilled subject to legislation’ or some other way distinguish that rather than absolute legal rights, these are human rights for which we give government some responsibility to ensure the conditions exist for them to be met.

The advantage I think would be for example a ‘right to social security’ would presumably at least go some way to preventing draconian government initiatives like the current six-month Newstart waiting period proposal. Policy-wise I don’t see any issues for us in supporting a right to basic education, a right to basic health care, and a right to social security, so if it offers a safeguard against a government recklessly restricting access to education, health care or social security, then I’d feel safer with some constitutional protection than relying on the random alignments of the Senate cross-bench of the day.

A right to housing - well yes it’s clearly a human right and we’d expect government to implement policies which seek to minimise homelessness, but obviously it’s something less directly under the control of the state and the fulfillment of which can’t be as simply prescribed. Similarly a right to food is appropriate to recognise as a basic human right, but clearly it doesn’t mean you’re entitled to rock up at your local Centrelink office and demand to be provided with a hot meal.

Labour rights probably would be good to include in some form, and the right to information is obviously a good one too.

The environmental one is the one I think really doesn’t fit easily. It may be a good idea to have environmental protection incorporated into the constitution somehow, but it seems a very awkward fit within a Bill of Rights or Human Rights Charter. Environmental protection ultimately isn’t primarily about the rights of citizens.