An opportunity for a Bill of Rights

One of the striking outcomes of the equal marriage survey is that a lot of people who had always assumed themselves to be part of (in Spiro Agnew’s phrase) the “silent majority” have been presented with undeniable evidence that they are actually in the minority. Not only that, but the minority to which they belong on equal marriage would be even smaller if it weren’t boosted by lots of people they’ve always thought of as undesirable minorities. Most notably, the No vote was swelled by Muslims and recent migrants from more traditional cultures.

Against that background, it’s not surprising to see people who have never had a good word to say about the United Nations, or about a Bill of Rights, embracing the idea of incorporating the International Covenant on Civil and Political Rights into Australian law (we’re already a signatory, but that has no legal effect).

It would be absurd to incorporate a document dealing with topics as diverse as the death penalty and war propaganda (both prohibited) into the Marriage Act. Nevertheless, now that the issue has been raised, it’s a great opportunity for Australia to get something like a Bill of Rights enshrined into law (though of course it wouldn’t change the Constitution).

It’s tempting to use the thumping majority recorded in the survey as a stick with which to beat those (variously described as “dinosaurs” or “reactionaries”) who campaigned against equal rights on this occasion. But all majorities are temporary. It would be far better to use this moment to make common cause in support of protections for minorities of all kinds.

A couple more points

As occasional commenter Fran B points out on Twitter, there’s no risk of the ICCPR becoming a backdoor way of implementing Brandis’ “right to be a bigot”. Section 18(3) reads

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

and this clearly includes the protections of our current anti-discrimination law, not to mention Article 26 of the ICCPR which prohibits all kinds of discrimination.

Another appealing feature of this approach is that it doesn’t leave room for lots of quibbling about what rights to protect: we can’t amend the ICCPR, so the appropriate approach is to legislate it as a binding set of principles, then use subsequent legislation to interpret.

So, let’s get equal marriage done straight away, then turn to the broader question of protecting civil and political rights for everyone.

30 thoughts on “An opportunity for a Bill of Rights

  1. The Four Corners program seemed to illustrate how offensive Murphy was to the status quo and how hard he pushed against it. Amazing man, how he legislated change that we can argue over but not be subject to.

  2. Yet Murphy came from a ‘take no prisoners’ ‘look after your mates’ partisan political culture (Sussex Street) and a terrifyingly corrupt court system (NSW in the 1960s and 1970s), and proved unable to leave all that behind when he went to the bench. It was not at all just “offensiveness to the status quo” which led principled if conservative fellow judges (including Labor appointees, BTW) to refuse to sit with him. That ABC doco was disgracefully unbalanced and far too flattering.

    Which I suppose just shows that bad people can do good things, just as good people can do bad things.

  3. @Smith
    “The Labor Party does not support a bill of rights. ”

    Labor has introduced statutory Bills/Charters of Rights in ACT and Victoria, and canvassed the idea in Queensland.

    As I understand it the (limited but significant) protection against subsequent Parliaments overriding the Act is that they must declare they are doing so, otherwise legislation that violates the Act will be invalidated by it. The same is true, IIRC of the Racial Discrimination Act, which Howard did over-ride in relation to native title.

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