Australian Bill of Rights

Not quite a first draft. Call it ver 0.0.1 of a Bill of Rights.

I've said quite a few things here on SSR regarding a Bill of Rights. Not being vague is probably a good umbrella term to cover them all. I've since been convinced that I was asking too much. It is fair to say that right now I am a blank slate in regards to a Bill of Rights.

I've been writing down a few notes over the last fortnight on what I would like to see in a rights bill. A lot of them are, essentially, the boiler plate rights that we should be taking for granted. Having said that, some of those boiler plate rights need to be written down. Cam touched on this today as well. Some of what I included is a reaction to a government I think really does believe in the "accountability moment" that George Bush recently spoke of . Finally, some of these are things I have written down but am not sure if they need to be in a bill of rights.

In my opinion, the most important of all the rights are the first two. Right to Rights

I have the right to all rights expressed herein if I am an individual who is a citizen of Australia, if I am an individual within the jurisdiction of Australia, or if I am an individual held by, or in the charge of any individual, group or organisation that is a citizen of Australia, incorporated within Australia, trades within Australia, or is commanded by the Australian government.

I have the right to all rights expressed herein no matter my race, age, gender, beliefs, sexual preferences, wealth, health, associations or prior criminal record. Life

I have the right to life. I have the right not to be deprived of life.

I have the right not to be harmed.

I have the right to be treated humanely at all times. Thought

I have the right to think as I will; and the right to express my thoughts in what so ever way I please.

I have the right to practise any religion or creed. Property

I have the right to property.

I have the right not to be deprived of property, or have property devalued, without fair exchange or consent. Self

I have the Right not to be deprived of my rights by someone else's exercise of their Rights. Their Rights end at the point of deprivation of mine. Liberty

I have the right to Liberty.

I have the right to free movement.

I have the right of free association; the right of free peaceful assembly; the right to protest. Arrest

I have the right not to be unlawfully detained.

I may be lawfully detained, but immediately upon arrest have the right to be informed why and under what authority, and to be informed of all my rights so that I understand my rights. I have the right to be accompanied by a person of my own choosing - who is not also under arrest - upon arrest. If no person of my own choice is available to accompany me without reasonable delay, I have the right to legal counsel without delay.

I have the right to legal counsel before interviewing or questioning may commence. I have the right to remain silent.

Upon detention I have the right to question, without delay, the validity of the detainment by writ of habeas corpus.

I have the right to be charged without delay, or be released immediately. If charged, I have the right to be informed immediately of the nature of the charge and the reasons for the charge.

At all times I have the right not to give up my rights, and may not implicitly give up these rights. No action of mine other than an explicit, uncoerced signed statement may give up these rights.

I have the right to be freed from further detention until such time as my trial, unless it can be proved before a court of law that my freedom represents a likely threat to society; or if it is likely that I would not return for trial. Trial

I have the right not to be charged for an offence that was not an offence at the time it occured.

I have the right to be tried, without delay, for any crime I may be charged with. I have the right to adequate time to prepare a defense

I have the right to legal counsel if I should be tried. If I cannot provide legal counsel for myself, I have the right to have legal counsel competent in the relevant case law provided for me. I have the right to an interpreter if I do not have fluency in the language of the court. The arbiter of my fluency is myself. If I cannot provide an interpreter for myself, I have the right to have one provided for me.

Unless I am a member of the Australian military and charged with a military offence, I have the right to be tried in a public court, before a judge and a jury of my peers for any felony charge.

If I am not an adult, I have the right not to be tried as one, no matter the charge or circumstances.

If convicted, I have the right to appeal my conviction. I have the right to all of the above rights if I should appeal my conviction.

If found not guilty, I have the right not to be charged again for the same offense. Government

I have the right to participation in the government of Australia; I have the right to stand for any elected position; I have the right to stand for any nominated position.

I have the right to vote once I reach my majority.

I have the right to representation.

I have the right to hold my representative accountable; I have the right to query my representative and receive frank and complete answers. Discrimination

I have the right not to be discriminated against on the basis of my race, age, gender, beliefs, sexual preferences, wealth, health, associations or prior criminal record.

I have the right to equal treatment under the law no matter my race, age, gender, beliefs, sexual preferences, wealth, health, associations or prior criminal record.

I have the right to all government services, benefits or recognitions no matter my race, age, gender, beliefs, sexual preferences, wealth, health, associations or prior criminal record.
Permalink, Australian Bill of Rights, Jan 2005, avocadia
cam: Excellent: I like it. I like the angle you came at it with too. Starting with the individual declaring them. I have an issue with this;

No action of mine other than an explicit, uncoerced signed statement may give up these rights.

Inviolable means that they cant be given up and government has no authority in that area to ask you to give them up.

I would probably also add something along the lines that; \"I recognize these rights as inviolable and if these rights are contravened then government has fallen into tyranny and no longer has legitimacy.\"

It would be cool if citizens could petition someone in government to have any incident of tyranny heard by the judicial arm. Government cant be trusted to maintain our rights, so citizens themselves are going to need a vehicle to protect them.

I like the \"Right to Rights\" section as well. I think it is important that there be no wiggle room to use the protection from government discriminatively. Such as citizens get it, and stateless, foreign folk dont. Individual rights are individual rights no matter what country you do or dont come from.

How do you see these rights being protecting if they are entrenched in the constitution? Unfortunately there are two ways to limit government, one legislatively, and the other through the actions of the executive arm.

For instance we could have the GG not allowed to pass any legislation which removes the right to habeous corpus, but he cannot police habeous corpus not being used by the government if they choose to ignore it.

So the GG can stop repugnant legislation, but the implementation of the practice is totally under the control of the PM/Cabinet. So what means do people have to air their grievances, or ensure the government is not contravening their rights in practice (as opposed to legislatively)

Good stuff avo.

cam
avocadia: Waiving:

No action of mine other than an explicit, uncoerced signed statement may give up these rights.

The thinking behind this was that you willingly waive your rights to a lawyer, or silence, &c, &c. (although maybe that only happens in Law and Order :- ) The idea is that you have to make a specific written statement to waive the right to a lawyer.
avocadia: Protection of our Rights:

First step is a stronger Australian Civil Liberties Union. At the moment it is pretty pathetic; I had to google to make sure we actually had one, and then find they don\'t even have their own domain . That\'s not a sign of a strong organisation.

Second is a strong Opposition. An Opposition that doesn\'t engage in a "small target" policy. A strong Opposition that calls out the Government and has the rhetoric to make the issue important and understandable in the public eye.

Third is a strong, independent media. A media that doesn\'t pander to advertisers; a media whose sole purpose isn\'t readership and ratings. A media that will call out the government on moves towards tyranny.

Finally, there needs to be an position to act not only as a watchdog against the government, but one with the power to pull them up immediately. The aforementioned all relies on the government relinquishing in the face of public condemnation, and cynicism/realism forces me to admit that the media will never be independent, an AusCLU would become just a dirty word as it is in the US in the mouths of socially conservative populists. With that in mind, I\'d like to see the G-G have the power to refer legislation to the High Court for advice on its constitutionality. Or being able to veto it without advice. I\'m actually not quite sure where I stand on this one. But certainly the G-G having some power to enforce the bill of rights.

The bill of rights needs to be an amendment to the constitution. If it is part of the constitution it is, a) harder to change, and b) allows the High Court to declare legislation unconstitutional if it conflicts with our rights. The problem with this is that means a referendum must pass for the bill of rights to be adopted, and Australian\'s aren\'t exactly notorious for passing those, even the ones involving rights and freedom .

To be fair that amendment didn\'t deserve to be passed. The trial by jury change actually weakened the trial by jury rights, the freedom of religion change merely extended the prohibition of establishment of religion to the governments if States and Territories. Only the property rights are a change I can generate much enthusiasm for - which is pretty evident since I put it into my bill of rights above. I probably would have voted against these changes on the basis of the weakening of the trial by jury rights.
cam: Life:
Life

I have the right to life. I have the right not to be deprived of life.

I have the right not to be harmed.

I have the right to be treated humanely at all times.

The not to be harmed one. That falls into feelgood as it is not explicit in what not harming someone is. I think you mean the right to be secure in your person from physical harm of another. That sentence above can be construed as mental, social etc harm.

Same with the humanely, that is like the one in the Swiss Bill of Rights which says an individual has the right to dignity. That is almost impossibly to quantify. It would also be impossible for a GG to defend, as it is too arbitrary and comes down to individual interpretation.

If the GG is to defend these things legislatively, then they are going to have to be explicit and not open to interpretation, especially from GG to GG. otherwise faith in the GG and the process will be lost and the position will become openly/overly partisan.

cam
avocadia: Protecter?:

here was an SMH editorial Ian Barker (QC) and Robert Toner (SC) today, summarised on ABC (since we\'re not helping SMH op-ed advertising).

The Attorney-General is the defender of civil liberties against the encroachment of Government legislation? Talk about a conflict of interest.
cam: SMH op-ed: I have no problems with good op-eds. I just dont want to give hits (and hence ad-referrals) to the bad ones - like Devine, Henderson, Sheehan, Kingston etc. Good writers should be rewarded with referrals. I only want the bad ones to starve. That is just my opinion, I dont care how you or anyone else links. If you or anyone else wants to give Devine referrals, I dont care. But I wont be.

cam
ranomatic: This is what I hoped: you would do.  I am going to spend some time going over it.  My only initial problem is the same as cam\'s - I don\'t like the idea of giving up a true inalienable right.
avocadia: Would we be comfortable with:

"I may temporarily waive a right with an explicit written and signed statement, but may reassert my rights at any time with a verbal statement."

Actually, I\'m not comfortable with that either. My idea for this was to prevent the police from asserting that you waived your rights. You have to be able to waive your rights - otherwise you are living in a Mother state which is just a tyranny of a more patronising form - but there should be protection from the authorities falsely claiming that you did. Thus, a written statement.

Unfortunately, that leaves us in a worse position. Now we have a person who waives their right to a lawyer, and signs a statement waiving that right, then reasserts their right. However, the police can waive a written statement and cast doubt on the verbal reassertion.

I suppose the solution is to take the clause out and leave the uncodified status quo, that a person can waive their rights if they choose.
cam: Liberty:
I have the right to Liberty.

Liberty is a difficult word. If we take the Lockean form of freedom then we are born in a state of complete and perfect freedom. Liberty is the freedom of action when in an ordered society where you cannot impress your arbitrary will on another person or their possessions.

So Liberty is in essence the freedom leftovers when we become social animals. The only freedom we give up is our ability to impress our arbitrary will on another person or their possessions. In other words violence on their person or theft of their possessions. This is what you stated as your rights end where mine begins.

So their isnt really a right to Liberty, as it is an intrinsic property to an individual in a society or polity. That line would probably be better written as, \"I have the right to maximum liberty\".

cam
avocadia: Ninth and Tenth Amendments: Right to Liberty is intended, when I go back and revise to ver 0.0.2, to be the rough analog of the Nine and Tenth Amendments. "I have the right to Liberty" is a placeholder at the moment that I included in my outliner to hang some notes on. Which now include your comment, ta.

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