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(POLL) Should Australia have a "Bill of Rights"

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TicTac View Drop Down
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  Quote TicTac Quote  Post ReplyReply Direct Link To This Post Topic: (POLL) Should Australia have a "Bill of Rights"
    Posted: 16/September/2012 at 20:09

Should Australia have a "Bill of Rights"?

Yes
No
Undecided
I don't Care


Edited by TicTac - 16/September/2012 at 20:09

MartinO View Drop Down
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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 02:02
Folks be aware that the poll generator is located on another site, and is not part of this site, The administration of this site are unable to guarantee the security of any data gathered on that site. Vote at your own risk

Many activists call for a Bill of Rights, but many do not realise that having one can be a double edged sword.

Having such an act and giving it the same significance as the constitution, which seems to be what is being called for and how it is applied in many countries which have such an act means that often rights are locked in to what the current thinking may be.

Just think if a Bill of Rights were to have been adopted in the 1940s it may have locked in The White Australia Policy, if it had been adopted in the 1950s perhaps people of Aboriginal origin may have been locked out of having a vote.

Take a look at the problems in the USA, where the Right to Bear Arms did not consider in 1791 the development of and the ownership of AK47s, and so on.

Just and fair laws of the land as passed and amended by the parliament, to me, are a better way to go.
I am NOT a lawyer. Anything said is NOT legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks.

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  Quote TicTac Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 02:54
Great points Martin, and I wasn’t sure if this "poll" would be allowed or not but I was going to take a chance as there are no poll options on the forum that I could see. I'm glad you have made the decision to keep it at this point. I am also pleased to see that nobody has clicked the "I don’t care" option yet. As such a bill would defiantly change Australia. Maybe the question that should have been asked is "Does Australia need the bill of rights?"

It is my understanding that the basic reason as to why Australia or any other country needs a Bill of Rights Charter is to have a means of protecting the rights of minorities against majority opinion. Discriminatory laws or those, which impose non equal rights, made by a majority or at the behest of powerful, external to political, bodies, will be challengeable in a court of law.

Even though Australia has signed all five international treaties that make up the International Bill of Human Rights, none of these treaties are legally binding in Australia. Nor is there is a Bill of Rights in the Australian Constitution. This means that the fundamental rights and freedoms of everyone living in Australia are not protected by the law.

Some say that human rights are protected enough, and the implementation of such a bill would increase the amount of litigation in the courts and that it would give excessive power to the judges. Wouldn’t implementing such a bill give clear direction about what rights should be protected they shouldn’t have to rely on precedent and legislative whim. A bill of rights would consolidate the emerging rights of indigenous peoples and not prevent it.

I understand that the US had the bill of rights when slavery was used and that blacks weren’t allowed to vote in those times either. However as times changed and people became more tolerant this changed with legislations such as the Civil Rights Act of 1964 and the Voting Rights act of 1965 which embraced African-American as full citizens with equal rights. Having such a bill did not lock out emerging attitudes so I don’t see how other legislation wouldn’t be able to be implemented and or amended here if it was introduced.

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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 06:09
But when "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" when those arms were muskets and single shot rifles in the wild west days, turns into anyone can own an automatic weapon today, something is wrong.

There are many Americans who wish to be rid of weapons in the hands of ordinary people, any of whom could lose their cool at any time.

But are unable to muster enough support to for a constitutional change being the majority of the people in three quarters of the states to vote yes. It just does not get up. That's what I mean as far as the US goes.

In Australia it is just as bad. We require:-
a majority of electors voting to approve the change in a majority of states (four out of six); and
a majority of all electors across Australia (including electors in territories) to approve the change.

In the past 106 years there have been 44 proposed constitutional changes and only 8 have got up. The vast majority of those changes were for the good of the country and the good of the people, but because when people do not fully understand what the effect may be on them they tend to vote no, and also even when the majority of people vote yes but the majority of states do not, because of the double majority requirement, as you can see most of these referendums do not get up.

Saying because when people change the voting will change is the reason slavery was abolished is flying in the face of the facts. It was abolished because they had a civil war and the north who were opposed to slavery won. And that was before the US Bill of rights was even established.

If you wish to plug for a Bill of Rights get your facts right.

We have a democracy in this country, the people get a say, they vote for the politicians who make the laws. Why should the people today decide the form that democracy should take in a hundred years time by setting up a bill of rights now. Let the people who are living in a hundred years time vote for the politicians who will pass the laws that suit the people living at that time.





Edited by MartinO - 17/September/2012 at 06:14
I am NOT a lawyer. Anything said is NOT legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks.

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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 10:31
Well I generally am pro bill of rights because it at least codifies things... what astonishes me though is how many Australians think they have certain rights when they actually don't (as has been shown on this forum many times).
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

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  Quote NotGuilty Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 12:28
The essence of a bill of rights argument is; should we entrust the courts or parliament to protect our rights? Interestingly, I asked the Chief Minister of the ACT once, who was the architect of the Human Rights Act 1994 (ACT), if his rights were violated, would he prefer the legislature or the courts to protect his rights, he said the courts in an instant, even though the Human Rights Act does not give the courts the power to invalidate an Act.

Parliament is not best placed to protect an individual's rights as laws are passed that have general application and laws just cannot take into account all individual circumstances. A factual circumstance could arise that parliament could never have foreseen. If your rights have been violated, could one expect the entire legislature to stop its business to address the infringement? No. They simply don't have the time. The fact is parliaments do make bad laws. And common law rights are being eroded in this country over time. For example, take a look at changes to the right to silence in NSW. Sometimes I think Today Tonight sets the policy agenda for governments. We as a society don't trust our politicians and yet we are to trust them to pass laws that are only "just and fair".

Originally posted by MartinO

Having such an act and giving it the same significance as the constitution, which seems to be what is being called for and how it is applied in many countries which have such an act means that often rights are locked in to what the current thinking may be.

Certainly not true in Australia. The meaning of our Constitution has changed over time and we now have a few implied constitutional rights that have developed in recent times. Better to have them clear in black and white, rather than having the High Court imply them.

Originally posted by MartinO

Take a look at the problems in the USA, where the Right to Bear Arms did not consider in 1791 the development of and the ownership of AK47s, and so on.

That is an extreme example and not a very good one. That right is expressed very specifically such that a court cannot interpret it to changing times. I don't suggest we have rights specified in such detail, rather they should be expressed generally as they are in most countries. In any case, the gun lobby in the USA is too powerful to enable a constitutional amendment.

Originally posted by MartinO

In the past 106 years there have been 44 proposed constitutional changes and only 8 have got up. The vast majority of those changes were for the good of the country and the good of the people ...

I don't agree. The 8 that passed were of benefit to citizens generally, most of the others were a power grab by the Commonwealth at the expense of the states, the electors are not stupid. We are a federation and electors want power to be shared.

Have a look at the list of rights contained in Part 3 of the Human Rights Act 1994 (ACT) Martin and tell me which ones are not worthy of being in our constitution.

Originally posted by MartinO

We have a democracy in this country, the people get a say, they vote for the politicians who make the laws. Why should the people today decide the form that democracy should take in a hundred years time by setting up a bill of rights now. Let the people who are living in a hundred years time vote for the politicians who will pass the laws that suit the people living at that time.

We have a vote every 3 or 4 years, what happens when rights are infringed in between elections? You are right we have a democracy and we have a democratic constitution given the electors approved it. If the electors were to say now we want our High Court to decide our rights not parliament, Isn't that decision democratic? What happens, as TicTac suggests, when the majority passes laws at the expense of minorities?

The fact is constitutions do change over time either by amendment or interpretation.

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  Quote TicTac Quote  Post ReplyReply Direct Link To This Post Posted: 17/September/2012 at 18:08
Great discussion people. By the looks of the voteing thus far it seems that the majority are for No Bill of Rights". If this was a referrendum one can see the power of democracy without understanding the minorites point of view.... Democracy isn’t all what it’s shaped up to be. Oligarchy ruled by a few, which is the most common form of government today nd democracy ruled by a majority, which of course sounds good. However what if the majority wanted to take away one’s home or business or children….The stolen generation could be an example of the latter. So one can now see that the power cannot be restrained in some instances, if more than half the people a persuaded to do something, then they rule. As to do with the US, the early founders did look at democracy in contempt, as they knew the early democracy’s in the early Greek states produced some the wildest excessive governments imaginable, in every case they ended with mob rule, then anarchy then finally tyranny under an oligarchy. This is one of the reasons they formed a Republic, “ruled by law” and indeed a bill of rights as well… to protect human rights.

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