The article mentions that Australia has no bill of rights which, whilst technically true, doesn't mean we don't have equivalent protections. Some are enshrined in our constitution whilst others are parts of common law and other legislation.
The conclusion they draw from that is right however; a lot of laws can be introduced to our parliament that might not get off the ground elsewhere. It's why we've fervently fought against many other, similar laws that would impinge on our rights and freedoms in the past. I spent a good part of my youth fighting against the Clean Feed legislation (it was a great big Internet filter for Australia, a terrible idea) which was thankfully defeated before it got off the ground.
> The article mentions that Australia has no bill of rights which, whilst technically true, doesn't mean we don't have equivalent protections. Some are enshrined in our constitution
The protections provided by the Australian constitution (as interpreted by the High Court) are quite weak in comparison to those included in the US Bill of Rights, it isn't really a fair comparison.
> whilst others are parts of common law and other legislation.
Anything in common law or legislation isn't worth much, since a single ordinary Act of Parliament is all it takes to cancel them out.
That may be true. However, in Australia, all interrogations have to be filmed completely. Law enforcement cannot lie to the interviewees, kidnapping of targets is not allowed. If Any law enforcement fails to do the correct thing in these areas, courts here will throw out the case. We had a relatively high profile "terror" case here which was thrown out for incorrect procedural actions (starting with the kidnapping of the defendant by ASIO).
I also know of cases where law enforcement improprieties have led the police prosecutors to come down on the side of the defendant in question and the improprieties being dealt with by the judge.
So though we do not have constitutional protections a la USA constitution, we do have other protocols in place.
Mind you, irrespective of any specific political affiliation, most of our politicians are all for higher surveillance and control of the population. It has taken cooperation of both government benches and opposition benches to pass the more draconian legislation in recent years. It has been interesting to watch parliament and see that there are very few there who are willing to grow a backbone and actively protect the rights of the citizens of this nation.
None of the draconian terror related legislation has actually been needed as all such activity is covered by normal criminal and civil legislation previously brought into existence. At least one of the draconian pieces of legislation does not require changes to the legislation to have the targets of that legislation changed at whim. All it requires is an administrative change of definition to change the legislative definition of terrorist. Smart work on the part of those who framed the legislation. A new government can designate any group they don't like as terrorists without going before parliament.
So any citizen of Australia that just wants to mind their own business can be easily caught up in the entire mess.
True, they could and at various times this kind of action has been done by various state governments in the past. But the political backlash has been very large. One is able to challenge the validity of such legislation and the government of the day has to show cause as to why this is valid before the courts.
The problem with the currently enacted terror legislation (approved by both sides) is that only an administrative change in a definition is required. This does not (as far as I can ascertain) require this to even go back to parliament for approval.
The point is that we do have certain rights before the courts that they will enforce. These are not constitutional rights but they are there.
The US bill of rights doesnt define the rights. The bill of rights calls out special rights that the govt shall not touch.
The rights are granted to us by our creator aka natural law. The same law used to declare our independence from the crown and an inherent part of the fabric of the US.
Unless you live within 100 miles of the border. Or happen to be carrying too much cash, according to the authority you’re dealing with. Or are dealing with a FISA court. There’s so many exceptions that it’s naive to think the bill of rights is some kind of magic document. The only right left relatively intact is freedom of speech.
The interesting part to me is the lack of a constitutional amendment granting the govt these powers. The only reason the govt has these powers is we let them. Constitutionally they dont have a leg to stand on.
The Constitution and Declaration of Independence are legal documents setting out the foundations of a government and a nationstate, not some divine text from a higher power. The founding fathers were not a group of infallible prophets.
That’s not what geggam is saying. The underlying philosophy of the Bill of Rights as stated by the founders/framers is that the rights are “natural” rights which all are imbued at birth, and that the rights listed are not exhaustive but merely representative. In fact, the founders were wary of a Bill of Rights specifically because by enumerating some of them the list might be seen as complete.
But the notion is that governments do not “grant” these rights, and likewise government can never infringe upon god given rights.
In fact, the founders were wary of a Bill of Rights specifically because by enumerating some of them the list might be seen as complete.
Right, which is why we have the 9th and 10th amendments. Unfortunately they are effectively ignored, along with the Enumerated Powers clause, meaning our government effectively has unlimited power. :-(
No, they weren't infallible. They were however, experienced in human nature and saw tyranny/ death in ways you only imagine.
Ignoring that experience dooms us to repeat the problems.
Assuming your intellect is superior to that which you cannot measure is also a common failure among smart folks. I am sure you dont fall prey to that trap.
Not really -- your bill of rights can explicitly say that it does not cancel out other rights that it did not mention. That's the purpose of the 11th Amendment to the United States constitution.
NZ Bill of Rights Act 1990, s28: "An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part." [1]
Without knowing much about the Australian system, I suspect the protections in the Constitution are equivalent, but not those in "common law and other legislation". In the US, the protections in the Constitution + Bill of Rights are considered much more fundamental than our common law and other legislation because it requires an amendment to override those protections, and amendments require an enormous level of national consensus to pass.
But even so, having something in the constitution is of relatively little protection if the judiciary and government are in favour of an idea.
For example, the bill of rights talks about "right of the people to be secure ... against unreasonable searches and seizures" and yet asset forfeiture is still a legal option. Actual practices surrounding plea bargains also look to run counter to the spirit of the BoR, but I mean what do I know.
I don't see how having a bill of rights helps. The only matter of import, and the only protection, is an engaged and motivated voting public. Constitutional amendment might provide a thin layer of protection against short-term rogue actors, but the creeping surveillance state is not rogue by any means, it seems to be a point of international consensus over many decades.
In Australia (unlike the US), constitutional amendments are decided by both a majority vote in both houses of parliament and by referendum where the public votes and a double majority (majority of people in the majority of states, and the majority of people in the country) must vote YES in order for a referendum to pass. And in Australia voting is compulsory so there's no question about election turnout spoiling the result.
So in Australia it is very hard to get a constitutional amendment to pass, and politicians have very little say in whether the amendment will pass (they can block it by voting against it but they cannot force it to pass). Only 8 (out of 44) have passed in the past 117 years that we have been a country.
As for Australia having a bill of rights, I think it would be an improvement (especially if it was anything like the Swiss constitution) but I don't know whether our bill of rights would be ridiculously watered down (not to mention that the US bill of rights is like the 10 commandments -- many people know a couple but don't know all of them and forget that the majority of them are not really relevant today).
If your point is that it's harder to pass an amendment in Australia than the US, based on your description, I would disagree. The US system requires more than a majority vote by representatives, in a couple different ways. The Australian system does sound more democratic.
I would still argue that it is harder to pass amendments in Australia, based on the simple fact that America passed 10 constitutional amendments in the first 2 years of the US Constitution being active (which is more than Australia has passed in 117 years) and that of the 33 amendments that have been proposed 27 of them were accepted (which is a much higher success rate than Australia's 8 passed out of 44 proposed).
So while purely looking at the proportion of YES votes needed and ignoring who is casting the votes, you might be able to argue it could be harder to get something passed in the US because in Australia it requires a super-majority of the public (which is generally a smaller percentage than a majority of 3/4ths of states) which means that it is not purely the role of the government to decide the rules that restrict the government's power. This means that the concern of a constitutional bill of rights in Australia being "pointless" because it would be easy for the government to overturn doesn't make much sense.
It's true that any codified protection of individual rights is worth nothing without people motivated, either in- or extrinsically, to uphold them.
But the power of such shape public opinion, and even people's sense of their, and their country's, identity.
The US, for example, has long had a strain of something akin to "patriotism to the constitution". It's a collective narrative that makes people believe in those rights (and the rule of law). And even those that do not share that believe have historically been motivated to play along, because it was the only way to stay what's called "acceptable company" (or "electability").
Of course we're currently running an experiment if that mechanism still works when 47% of the voting population and half the elected representatives decide to try something else for a change. Currently, it's only parts of the judiciary, and of the media, holding everything up. we'll see how it ends.
> I suspect the protections in the Constitution are equivalent,
No, Australia has nothing like the Bill of rights, even if some bits of the constitution cover the same ground very partially.
To give a flavour of this, our constitution prohibits an established church using language very similar to the US 1st Amendment. But the silence about freedom of speech is deafening.
In the '90s the High Court decided there had to be an implied right to freedom of speech inherent in the political system which is itself implied by the constitution. But since it is not explicit, they still restrict it to only political speech. And (since it really did require a strong judicial activism) many in our legal community are against even this much enforcement of fundamental rights.
When I said "equivalent", I didn't mean in the sense of having the same protections in the Constitution, but rather that in the sense that its protections are equivalently difficult to amend as those in the Bill of Rights.
Common law rests heavily on stare decisis. The precedent set in Australian Communist Party v Commonwealth is not likely to be overturned, as far as free political speech and organisation goes.
The High Court of Australia has ruled that Australians have an implied right to political communication and an implied right to protest.
Not specifically pertinent to this legislation but worth pointing out for HN readers who may think we live without protections and freedoms US citizens seem to enjoy.
The conclusion they draw from that is right however; a lot of laws can be introduced to our parliament that might not get off the ground elsewhere. It's why we've fervently fought against many other, similar laws that would impinge on our rights and freedoms in the past. I spent a good part of my youth fighting against the Clean Feed legislation (it was a great big Internet filter for Australia, a terrible idea) which was thankfully defeated before it got off the ground.
We'll have to do the same for this.