New Matilda is running a campaign for Australia to introduce a Human Rights Act. I meant to post about their launch, which was on Wednesday, but I’ve been rushed with work and harassed by spammers. Anyway, have a look at the site and see what you think.
I’ve never given really careful thought to the question of a Human Rights Act or Bill of Rights, but obviously the issue is sharper now, with so many people willing to throw away basic rights in the hope that this will help to stop terrorism. So throw in some comments, and I’ll try to give a considered response later on.
John Quiggin 
I used to think that a Human Rights Act for Australia was unnecessary. The last few years have completely changed my mind on that. It would be nice to have those rights explicitly laid out. I don’t think that it needs to be introduced to protect us from bad intentions of government, but rather so that when legislation is introduced that curtails our rights it is much clearer what we giving up. Also so that there is a guarantee of minimum rights that cannot be overridden by laws that are misused or have unintended consequences. With the increasing amount of secrecy in the application of these laws this is becoming easier to do. Politicians are keen to stress their laws are not going to allow X or Y, but they are often wrong or uncaring as to whether what they are saying is really true and I do not trust them. An explicit Human Rights Act is something concrete we can actually depend on in a court of law and not some vague promise.
Big props to Avocadia’s Australian Bill of Rights.
G’day mate. I’m Alvin from Malaysia and happened onto yr blog because I was searching about the facts of privatisation. My gov’s privatisation programme is draining people’s pockets but no one wants to listen.
Great blog. Great posts. I wish Malaysia was as democratic as Australia. My political fight has just begun.
Signed,
Politically aware but confused-almost-convinced socialist-neoliberal.
My concern about a human rights act is the development of law arising from interpretation of the act in the High Court. I am not satisfied with the present situation. In the implementation of law there is always tension between the rights/needs of the broad community and the rights/needs of the individual. The US has rights guaranteed under its constitution – but it would seem that the rights of the individual freqently dominate over and above the rights of the broader community. I would hate the interpretation/implementation of a prospective Human Rights Act to take us down a similar path. I need assurances, I guess, on how an equitable balance can be achieved between the rights of an individual and the interests of a broader community without providing a field day for lawyers and their wealthy clients.
Dear John and discussants
I once shared ‘Still Working it Out’s’ scepticism about the need for this country to have a Bill of Rights. The current government have demonstrated on countless occasions that they cannot be trusted with the extensive powers they already have; yet they seek more. Just mention the names of Cornelia Rau and Vivian Alvarez Solon and you get visions of a government department out of control, with a toxic culture, not paying any heed to human rights.
http://www.abc.net.au/pm/content/2005/s1476439.htm
We will not remember the hundreds of other Australians and the thousands of asylum seekers who will spend the rest of their lives recovering from the psychiatric damage that was caused to them by their needless detention. For the next fifty years we will see them battling their way through our expensive legal system to gain some compensation for the harm that has been done to them.
I am also taking the opportunity to comment on a few recent news items, because I think the harm we are causing to other peoples around the world also emanates from our lack of a human rights culture in this country. It is of particular concern to me that our secretive foreign policy, arguably a moral vacuum, is of the greatest concern:
A reading of Ted Trainer’s work should make us all reflect on our lifestyle choices and how these affect the rest of humanity http://www.artsunsw.edu.au/tsw/D62IfYouWantAffluence.html
1. An Israeli court has found that the IDF’s routine practise of using Palestinian civilians as ‘human shields’. They had been doing it for ages – in defiance of Geneva Conventions. Our allies are persistent war criminals. Why does our government persist with their unquestioning support? Perhaps we should examine closely whether these tactics have also been used in Iraq.
http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20051007/ISRAEL06/TPInternational/Africa
2. Tony Blair revealed that Iran has been infiltrating explosives into Iraq (Iran accuse Britain of sending people into Iran to destabilise the Iranian government). Probably both true! But Blair claims that British and US forces are in Iraq with a UN Mandate – this is astonishing news, and an obvious lie. Isn’t it odd that the first time we hear about this is three years after the illegal invasion and only from one of the ‘Coalition of the Willing’. It is also strange that we have never heard this argument from John Howard.
http://www.abc.net.au/am/content/2005/s1476650.htm
3. George W Bush revealed (in a carefully choreographed speech) that the ‘War on Terror’ is actually just like the ‘Cold War’ and that Al Qaeda is just like Communism – now this is news to everyone who has been listening intently for the past five years. He also told Americans that 10 Al Qaeda attacks, 3 of which were to have taken place in the USA have been thwarted by the highly effective Homeland Security Dept (we know they weren’t in New Orleans).
http://www.abc.net.au/am/content/2005/s1476642.htm
So, where are the arrests? Who is being charged? Where are the bodies (if they carried out extra-judicial killings to save the trouble of having trials)? Do we need a Bill of Rights to prevent covert policing in this country?
4. When they have lied so many times before, why would we believe them now? The story keeps changing as the kids think up new fibs.
Finally, for those who are yet to catch up with the latest shocking but not surprising story from Iraq – click on my blog for a poem that sums up the needless carnage:
http://willybachpoeticthoughts.blogspot.com/
Regards
Willy Bach
Now he tells us!
The Wets helped to create a domestic terrorist problem by encouraging multicultural enclaves to form, which forment sectarianism and ethnic strife. Now they complain about the governments heavy-handed solution, which is about the best that can be done without creating an allround police state.
Why didnt the Wets just encourage national citizenship for ethnic settlers in the first place? Then we wouldnt have to go through all this unpleasantness to clean up the mess.
Howard has a record of talking loudly but shaking a little stick. This is obvious from the fact that our purported xenophobic PM has actually increased Australia’s NESB intake and made the populus more relaxed and comfortable about this. Also, Howard’s military adventurism in Iraq and Afghanistan have been more high profile than heavy duty.
It is hyperbole to say that “basic rights” are being “thrown away”. The anti-terrorist legislation is mainly a bit of kabuki play politics designed to cover the governments ass then next time a bomb goes off in a public place (“see, at least we tried to do something!”).
This legislation has a pragmatic sub-text, to use state power to indirectly constrain ratbags and hot-heads in certain fairly well defined areas by low-key intimidation of their community associates. This is a conservative, pragmatic and moderate policy which will probably do the trick without stirring up the hornets nest.
No sane kinsman wants their child support cut off, Centrelink cheque delayed or their visa application for a visiting Aunt to be denied just because a cousin likes to bang his head against a dusty scroll in a conspicuous way. Nor do they want to spend a couple of weeks in remand “helping police with their investigations” after a bomb scare.
Rather than court the unwanted attention of the authorities the family members will use peer pressure to bring the bomb-chucking types into line. Or they might just give them up. Mother knows best, even for potential jihadists.
At least I hope so. If native born domestic terrorism starts to hot up then the populist politicians and vigilante militias will take the lead. Then there will be tears before bedtime.
We could then well have a political agenda that features such lovely items as internal passports, internments, deportations, ethnic cleansing and the rest of the sorry saga of failed multicultural states. That would give current talk about sacrificing basic rights a rather naive and threadbare sound.
I would prefer to not enjoy the vindictive pleasure of saying “I told you so”, should it come to that. So better to be safe now than sorry later. This goes for both those elitists who will always favour (libertarian) individual autonomy though the heavens fall. And those rotten populists who now look to (communitarian) institutional authority for a peaceful nights sleep.
PS The UK has managed to evolve an Open Society without resort to an overlawyering Bill of Rights. And a beautiful Bill of Rights (1936) didnt do the USSR’s citizens much good, did it?
One thing I think we should look closely at is the Canadian Charter of Rights and Freedoms.
To me, the point of a Bill of Rights is its educative purpose. If some restriction on rights has strong, sustained majority support the political system will ultimately find a way to impose it. In the Canadian case, there is a clause which allows the Parliament to pass laws that contravene bits override certain parts of the Charter, provided they *explicitly* enumerate which bits of the charter are being overridden. There’s also a five-year sunset clause on any legislation that takes advantage of this clause.
What seems to have happened, in fact, is that the Canadian public is generally supportive of the Charter and won’t support laws that use the “notwithstanding clause”, as it is called.
A useful bill of rights would list the things that governments should not take away from us.
A stupid bill of rights lists the things that governments must give us at somebody elses expense.
The Universal Declaration of Human Rights is second rate in so far as it includes aspects of the second type.
http://en.wikipedia.org/wiki/Negative_right
“…it would seem that the rights of the individual freqently dominate over and above the rights of the broader community. I would hate the interpretation/implementation of a prospective Human Rights Act to take us down a similar path.”
Thank you, Brigid, for reminding me once again why I oppose present moves towards a Bill of Rights. I have no doubt that the supporters of this ridiculous Bill of “Rights” (it should in fact be called the “Bill of Acquisitions” – i.e. enshrining the unlimited confiscatory power of the “collective” or state) agree with every word that you write.
Willy Bach: Excellent satire!. A bit too obvious though, perhaps if you toned down the faked zealotry to a level which COULD be possible, you may take someone in! Hehe…
It’s hard enough getting a minimalist Bill of Rights to pass muster. Why do New Matilda have to go and put in all sorts of positive rights in their document too? That makes it very difficult for people like me to support it though I agree strongly with the need for constitutional rights to get in governments’ way of doing things to people. Philosophically I agree that the distinction between positive and negative rights is a very thin line and that even negative rights *against other individuals* require taxation dollars to pay for police powers etc. Nonetheless in the area of constitutional jurisprudence the value of a Bill of Rights is in the rights asserted *against governments’ *power to detain, trespass, confiscate property and so on – all this other stuff which the New Matilda document lumps in like the right to welfare, education, etc is fine as it goes but I’m reluctant to see that sort of thing enshrined as rights that could be subject to litigation in courts since the optimal expenditures on such collective goods should retain some flexibility. If the New Matilda document could just lose half of the ‘rights’ it has in there it would be more palatable to classical liberals like myself who are concerned about the anti-terror laws.
Great minds think alike? Anthony Mason speaking last week:
FWIW, I’m a believer.
Who cares if we are “virtually alone in the Western world” for not having a bill of rights? This is an emotive appeal to group-think that proves nothing as to whether a bill of rights would generally raise the standard of law in Australia.
It may be educational to look at New Zealand’s version – the New Zealand Bill of Rights Act 1990. This is a lot narrower than New Matilda’s version, focusing on implementing the ICCPR and ignoring economic, social and cultural rights, and it is not supreme law – legislation cannot be overturned on the grounds of inconsistency. However, it has still been a powerful stick for taming government, primarily because a) it forces Parliament to consider human rights effects in legislation, and b) it forces the courts to interpret all legislation so as to be as far as possible compatible with human rights. The latter has been parlayed by the judiciary into a virtual requirement that intent to violate human rights must be clearly signaled in legislation, and used to “read down” incompatible legislation, effectively gutting it while not legally overturning it (e.g. its illegal in NZ to burn the flag, but a recent case reinterpreted the law so narrowly so as to effectively repeal it. An upcoming case promises to do the same with sedition). The bill has been far more effective than even its authors intended, but it seems to generally have struck the right balance and works well.
New Matilda seems to have tried to include everything in their draft, but the lesson from NZ is that even a cut-down bill can be surprisingly effective.
Australians are conservative, rather than constructive, when it comes to incarnating grand ideological messages in their political documents. The constitution barely mentions any political values at all, apart from paying obligatory deference towards the Queen and her dominions.
Civil rights tend to exist as unwritten rules in the people’s folk constitution. As Denis Denuto says, when defending a traditional contruction of rights against a the literal black letter of the law, “…it’s the vibe’.
The ALP gave the people the opportunity to enshrine a Bill of Rights securing “rights and freedoms” in the 1988 Rights and Freedom referrendum. The people rejected it decisively, with the poll failing to obtain majority in any State, and achieving a paltry minority of 3,610,924 votes.
My feeling is that legislating a Bill of Rights would just invite over-lawyering and a plague of frivolous and vexatious adjudications. It is more important to encourage grass roots participation in government and parties, as this includes people in the process.
I would feel more confident of liberal-Leftists committment to civil libertarian rights and freedoms if they showed more gumption in sticking up for unfashionable free speech. Sadly, as the Fraser case shows, their skedaddle from the principle that “freedom is indivisible” proves that their committment to institutionalised protection of free thinking is somewhat notional.
The “bill of rights” movement is nothing more than an outrageous attempt to enshrine group rights at the expense of individual rights – in effect to make the expropriation of productive citizens’ property an irrevocable “right” of “society” (meaning the government). The only people who will get any meaningful “individual rights” (i.e. protection from the government) out of this bargain are likely to be illegal aliens.
Well, in Australia they damn well need it.
And I think that people are focusing too much on the economic and social rights section. Read the rest. This draft, like most bills of rights, enshrines freedom of expression and religion, the right not to be killed or tortured, and the right to a fair trial and natural justice. It even enshrines property rights! Aren’t these things that Libertarians and RWDBs support?
Illegal aliens do not deserve any particular rights in Australia that they don’t already have, and there is no justification for them having any protection under a “Bill of Rights”. As for Australian citizens, there might be a strong case for a “Bill of Rights” along the exact same lines as the 1st through 10th Amendments of the US Constitution. Otherwise, we can expect any “Bill of Rights” proposal to include the usual rubbish about the “rights of minorities”, the “right to education” etc.
Well, the New Matilda draft Bill is even more disgraceful than I thought it would be.
“Everyone has the right to the highest attainable standard of physical and mental health”. Oh.My.God.
“Everyone has the right to an adequate standard of living…” What the f@#$ does that mean?
“Everyone has the right to freedom of expression…any advocacy of national, racial or religious hatred that is intended to, or reasonably likely to, incite violence shall be prohibited by law”. Gee, couldn’t have predicted THAT one!
This is the most disgusting legislative proposal I have ever read. Those who wrote this must be exposed and shamed (and vilified endlessly – I call upon the federal government to pay me and my friends $100,000 a year to set up a vilification unit!) for their duplicitious “human rights” bill.
Say John, what do you think of the full text of the New Matilda’s “human rights” bill?
As I said, I’m still thinking about it, but my initial reaction is similar to Jason’s. I’m in favour of positive rights, but I don’t think a Bill of Rights is the place for them.
And I think we need to have a principled statement of rights against which restrictive legislation can be tested.
Just read Jasons comments. It would seem to me that negative rights only require tax dollars when they involve protecting us from the actions of other citizens. If they are limited to protecting us from government acts then I can’t see why it need cost anything more than a judges wage and the printing paper.
As such I would propose a “Charter of Limits to Government Action” rather than a “Bill of Rights”.
[…] John Quiggin draws attention to New Matilda’s campaign for a Human Rights Act. My initial thoughts which John seems to have expressed agreement with in the comments is that this would be a fine idea if only New Matilda would lose about half the rights they seem to want in the Act. […]
Steve, “The “bill of rightsâ€? movement is nothing more than an outrageous attempt to enshrine group rights at the expense of individual rights”
No it isnt. While feel-good rights have no place in a Bill of Rights, political rights are a universal without which there is no rational reason to obey a government’s law. It is for the defeat of tyranny in government, and to ensure that all individuals (whether citizen or alien) who are required to follow the laws of that government are not subjet to tyranny or discrimination. A Bill of Rights is important in stopping a government acting arbitrarily toward those that are under its jurisdiction.
A Bill of Rights is a brutally limiting language which eradicates government tyranny. Something we need in spades at the moment.
“A Bill of Rights is a brutally limiting language which eradicates government tyranny. Something we need in spades at the moment.”
Unfortunately that’s not what the New Matilda proposal gives us, Cameron.
“A Bill of Rights is important in stopping a government acting arbitrarily toward those that are under its jurisdiction.”
The *Law* stops a government acting arbitrarily. A Bill of Rights prevents a government from acting tyrannically – be it tyranny of the despot of that of the majority.
Lovely rhetoric Cameron, but it has nothing to do with the New Matilda’s proposal whatsoever. I’m afraid you are about the only proponent of a “Bill of Rights” who genuinely believes in restricting the powers of government. Every single proposal for a Bill of Rights I’ve seen so far has been to the exact opposite effect.
Steve, have a look at Avocadia’s Bill of Rights, it is for stopping tyranny. I am loathe to entertain anything called “human Rights” anyway, a Bill of Rights is contitutional language to ensure the equality of political rights.
Avo, Tyranny is arbitrary government. Tyranny comes in all manner of insidious forms. It does not require a tyrant, a despot or the complete collapse of government to be present. The recent Migration Amendment is a good example of the law entrenching tyranny.
From the act;
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Are we a nation of laws, or men? That means any alien is under the personal whim of the minister. Not a law, not a replicable process; but a whim. It is arbitrary government.
Jason, I admit I didnt read the New Matilda Human Rights, but I am not arguing for it, I am arguing for the necessity of political rights, and Avocadia’s enuncuation of them.