Wednesday, December 4, 2002

Australia: What about a bill of rights?

Margo Kingston: Hi. The deed is nearly done. By tonight, the NSW parliament will have passed new laws which allow police, on the say so of the police minister, to break-in to your house and search it, to strip search you, to search your vehicle, and to insist that you answer questions. The police minister is immune from scrutiny for whatever he authorizes and there’s no public disclosure of what is done under the new powers.

To read yesterday’s parliamentary debate, go to Link Now Removed?

Independent liberal Helen Sham-Ho, independent Democrat Richard Jones, the Greens, the Democrats and Dr Peter Wong of the Unity Party expressed reservations about the bill and asked for safeguards.

The Opposition wanted to give the police even more power and One Nation’s David Oldfield supported the bill without safeguards, a strange stance given the far right’s strident opposition to increasing the policing and surveillance powers of the State.

A read of the parliamentary transcript will give you a great idea of the state our alleged ‘democracy’ is in.

The new powers are supposed to be used when there’s a credible threat of a terrorist attack.

[When there may be a false flag operation, need for fear mongering or a scapegoat, to bolster the Coalition of the Killing's illegal and degrading resource wars in the Middle East.]

We’ll never know if it’s being used only for that purpose, and that the powers aren’t being used to harass citizens the government doesn’t like, or whose activities the government wants to stop for political reasons. This is because citizens have no rights to ask the courts to examine the facts and determine whether Costa is acting within the law.

The United States has enacted sweeping new policing and surveillance powers, but there is a crucial difference. All such laws are subject to the Bill of Rights, which sets out the compact between citizens - the ground rules under which the citizen and the State operate.

By this means, the government is subject to scrutiny by the courts when it seeks to alter the balance of rights between the State and the citizen. The European union also has entrenched civil rights, and Britain has just accepted that it must comply too. We’re just about alone in Western democracies in not having a bill of rights to defend ourselves against government excesses.

Add to that the de-funding of community groups - stripping them of the means to argue with government on the merits - the strangling of dissent and independent thought in universities, and the fear of speaking out these days, and we’ve got a real problem. It will get worse.

The federal government has limited controls on their power through the Australian Constitution. It insists, for example, that judicial power only be exercised by judges, which stops the government forming political adjudication bodies, with appointees not bound to be independent of the State.

There is nothing to constrain our State governments. If they’ve got the numbers in the parliament they can do anything. And in NSW, they just have, courtesy of Bob Carr and his strategy to win the March election, regardless of the costs.

We’ll never get a bill of rights in this climate under the current political leadership on both sides - because governments would have to agree to put a constraint on their power and to justify winding back our rights on the merits, before an independent arbiter. Our major parties are too short-termist, too cynical, too small-minded, too morally bankrupt for that.

I thought you’d be interested in Bob Carr’s considered opinion on why he hates the idea of a bill of rights. Weblogger Scott Wickstein

Found this submission by Carr to an inquiry into whether a bill of rights for NSW. Link Now Removed 2009?

The highlights:

“The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable.” [?]

“A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.”

Mr Carr, you haven’t given the good sense, tolerance and fairness of the community a chance! No debate, no inquiry. What happens when a clever manipulator of fear like you rams stuff down people’s throats and terrorizes opposition voices into silence? You pretend there’s a productive, constructive partnership between government and citizen.

There’s not.

Most of the time, the needs of the citizen, and the local communities, aren’t given a moment’s thought, except about how to sell them the latest diminution in their rights and their quality of life in the name of fast bucks, power and personal perky.

A bill of rights sets a benchmark. For government to reduce people’s rights within respect to government, justifications must be put and argued. The merits must be considered, the proportionality assessed. This is what Bob Carr does not want. A bill of rights is a means that can be used by the individual and communities - especially the poor, the weak, the unpopular and the marginalized - to assert their rights as against the government. Bob Carr doesn’t want that. He’s no Labor man. He hates the underdog almost as much as he hates informed public debate.


by Bob Carr, Premier of NSW

The Standing Committee on Law and Justice has requested me to inform it of my concerns about any proposal to enact a bill of rights for NSW. In this submission, I will outline my general objections to the legislative enactment or constitutional entrenchment of a bill of rights, rather than what types of rights should be included and how a bill of rights should apply.

The transfer of policy decisions from governments and Parliament to the judiciary

A bill of rights transfers decisions on major policy issues from the legislature to the judiciary. It is not possible to draft a bill of rights which gives clear cut answers to every case.

[But who is asking for clear cut answers and is there a difference between what politicians want and what is right? What is right doesn't have to be elected!]

Carr: No right is absolute. Rights conflict. The right of freedom of speech will conflict with the right to equality (e.g. racial vilification) and the right to equality will in turn conflict with the right to freely exercise one’s religion (e.g. the right to exclude females from the priesthood). While these are extreme forms of conflict, most conflicts will be more subtle and difficult to determine.

Lothar: The diagram above shows the major differences between the collectivist social order that is associated with takerism and the older, natural, social order of peoples such as the Australian aborigines and the tribes of the Amazon, who successfully followed Leaver principles for tens of thousands of years.

On the left, we see that individual species, humans and others, have inalienable rights. These rights are not granted and they cannot be withdrawn. They stem from the divine order that creates matter, structure, and life.

On the right, there is the concept of human-created collectivism, and bigger and bigger governments, all the way to a global, totalitarian state. The distinguishing feature is that, here, the 'order' in society is made by men, it is not natural. Nor is it divine.

Whereas natural rights, on the left, cover all living things, the artificial rights that are given and taken by nation states, on the right, only apply to humans. The dominant idea is, as Daniel Quinn observes, "Humans belong to an order of being that is separate from the rest of the living community (there's us and there's nature)."

Carr: A bill of rights can only be interpreted by the Courts by balancing rights and interests. Most modern bills of rights include a clause recognizing that rights may be subject to such reasonable limits as can be demonstrably justified in a free and democratic society. This is clearly a policy decision, not a judicial issue.

If a bill of rights were enacted, it would then be up to a court to decide whether freedom of speech should be limited in relation to pornography, tobacco advertising, solicitation for prostitution and the publication of instructions on how to make bombs. These are issues which need to be considered in the context of community views. They are issues which should be decided by an elected Parliament whose Members are ultimately responsible to the people for the decisions they make. [?] They are not decisions which should be made by judges, who are not directly accountable to the people.

Lothar: Historically, there have been periods when legal distinctions between animals and humans have been blurred. For instance, in medieval Europe, in the 14th and 15th centuries, numerous trials and executions of animals occurred. One source identifies 34 recorded instances of pigs having been tried and cruelly put to death. Besides pigs; rats, chickens, goats, and bees were similarly tried. Some of the pigs were fully dressed in human clothes at the time they were, inevitably, found guilty. In one case a vicar excommunicated a flock of sparrows that infested his church. All this happened despite the theological stance that animals had no soul, and no morals or conscience. They could not really be guilty of transgressing the Rule of Law.

Carr: There are additional problems in legislatures abdicating their policy role to the courts on human rights issues. Courts operate within an adversarial process. Matters only arise before them when there is a dispute and judgments are made on the basis of particular facts. Decisions are therefore piecemeal in nature and cannot take into account all issues relevant to determining policy. The material before the courts is limited by rules of evidence and procedure and the courts do not have presented before them all the matters which should be taken into account when developing a broad policy on rights issues. In short, a court is not an appropriate forum for making these decisions.

[In short neither is a parliament appropriate forum for making decisions re The Community Protection Act 1994 now repealed].

Repeated: There is nothing to constrain our State governments. If they’ve got the numbers in the parliament they can do anything. And in NSW, they just have, courtesy of Bob Carr and his strategy to win the March election, regardless of the costs.

Carr: Further, a bill of rights will unduly politicize the judiciary. Judges will be seen more and more as policy-makers, undermining the role and independence of the judiciary.

How are rights really protected - by courts or by the good sense of the community?

[Inalienable rights. These rights are not granted and they cannot be withdrawn.]

Carr: Some of the most abusive and oppressive regimes have had extensive bills of rights.

[The Carr Government attempted to make a law for one man Community Protection Act 1994 and cements people into the prison and endlessly tortures those individuals in solitary confinement indefinitely, how is that not an oppressive regime?]

Carr: In reality, it is not a ‘bill of rights? which protects rights. Nor can the courts alone adequately protect rights. The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable. A bill of rights will only have the effect of turning community values into legal battlefields, eventually undermining the strength of those values.

Lothar: Clearly, there was a period of confusion in the West when remnants of the beliefs (some would say superstitions) of the old, pre-taker, tribal societies existed alongside the new doctrines and dogma of man-made collectivism and religious interpretation. Today the distinction has all been resolved. Even the UN groups that deal with animal matters are clear that animals do not have natural rights. They are merely 'there' to be exploited.

Carr: The respected American jurist, Judge Learned Hand once said:

“[T]his much I think I do know - that a society so riven that the spirit of moderation is gone, no Court can save; that a society where that spirit flourishes no Court need save; that in a society which evades its responsibility by thrusting upon the Courts the nurture of that spirit, that spirit in the end will perish.”

Lothar: The Rule of Reason

In his novel, The Story of B, Daniel Quinn outlines the difference between tribal law and what passes for just law-making in collectivist societies. He illustrates his points with an example relating to adultery, a common enough occurrence in every human community. He writes.

*"Tribal laws are never invented laws, they're always received laws. They're never the work of committees of living individuals, they're always the work of social evolution. They're shaped the way a bird's beak is shaped, or a mole's claw - by what works. They never reflect a tribe's concern for what's "right" or "good" or "fair," they simply work - for that particular tribe."

Carr: ‘Freezing’ rights

Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities at a particular point in time. If a bill of rights had been included in the Commonwealth Constitution in 1901 it would most likely have enshrined the ‘White Australia policy’. The ‘right to bear arms’ is a “right” under the United States Constitution which many see as the root of the tragic shootings which afflict that country. It is not enough to say that these rights can be changed by a constitutional referendum. We all know that referenda are rarely held and are rarely successful.

Even when a bill of rights is not constitutionally entrenched, and can therefore be changed by legislation, the political reality is that a bill of rights is given ‘quasi-constitutional status’ and is almost impossible to amend.

Lothar: *"Here's how the Alawa of Australia handle adultery...." (The example is quite lengthy. Look it up - on page 314 of the paperback edition, 1997 - if you want to know the details. L )

*"Nothing like invented law, which just spells out crimes and punishments, tribal law is something that works. It works well for all concerned. A man and woman whose love is as great as this must of course have each other. But for the sake of the tribe they must be gone - out of sight, out of mind forever. The children of the tribe have seen with their own eyes that marriage and love are not the trifling matters they have become among "advanced" peoples like us. The husband's dishonour has been avenged - and there will be no snickering among his comrades about it, for they stood side by side with him to lambaste the adulterer."

*"Every part of this process is the law, and every actor in it is a participant in the law. The law for these people isn't a separate statute written in a book. It's the very fabric of their lives - it's what makes the Alawa the Alawa and what distinguishes them from the Mara and the Malanugga-nugga -who have their own ways of handling adultery, which are best for them. It can't possibly be said too often that there is no one right way for people to live, that's only the delusion of the most murderous and destructive culture that history has ever produced."

Carr: Unpredictable interpretation

Another problem with a bill of rights is the unpredictable ways in which it will be applied by the Courts. Sir Harry Gibbs, former Chief Justice of the High Court, has noted that the ‘due process’ clauses of the United States Constitution (which prohibit anyone from being deprived of life, liberty or property without due process of law) have been used to render invalid laws limiting working hours, fixing minimum wages and standardizing the quality of food?.

In New Zealand, despite political assurances to the contrary when the Bill of Rights was enacted, the courts have created new remedies to apply to breaches of the Bill of Rights. For example, the NZ Court of Appeal has held that the ‘right to freedom of speech’ includes a power for the Court to order the publication of a correction of defamatory material.

The Court has also held that the State is liable to pay monetary compensation for breaches of the Bill of Rights. Even the Parliament found, to its surprise, that it was subject to the Bill of Rights and had to apply natural justice, particularly in parliamentary committee hearings.

While the New Zealand Parliament has the power to amend the Bill of Rights, as noted above the political reality is that this is usually not an option.

Lothar: Quinn makes the point that the emphasis in tribal law is always on correcting the harm done. The Rule of Law that applies in collectivist societies, even before they become totalitarian states, places its emphasis on punishment. Even in cases where courts award damages the compensation is always in a monetary form; loss of an arm is worth so much, damage to reputation is worth so much. The philosophy seems to be that every harm can be expressed as a sum of money, and that there is no need to do anything more than fix the price of the damage.

This simplistic and mechanistic view, is characteristic of materialist cultures. But it is totally foreign to the tribal peoples of the Amazon forests or the Australian wilderness. They have laws that aim to repair feelings and lessen animosities. Their aim is to keep their tribes functional and to maintain respect for the rights of the other creatures and life-forms that share their world. Tribal laws reflect a very different mindset, and a system that is much longer lived and successful than modern approaches to law-making and justice.

Carr: The creation of a culture of litigation

A Bill of Rights will further engender a litigation culture. Already it seems that people are unable to accept responsibility for their own actions. If a person trips and falls today, instead of blaming himself or herself for carelessness, the person will be looking for someone to sue. If a person is burnt by coffee while juggling it and driving a car at the same time, instead of recognizing that this is a really stupid thing to do, the person will sue because the coffee was too hot. How much more litigation will we be inviting by a bill of rights?

A quick look at the law reports of Canada and New Zealand will show the extensive use of their respective bills of rights in litigation. It will also show that the primary use of a bill of rights is in relation to criminal appeals. In New Zealand, in the first seven years after the Bill of Rights Act was enacted, it was invoked by the accused in literally thousands of criminal law cases, a large number of which were appealed to the Court of Appeal (the highest court in New Zealand). Some may argue that this shows the system for prosecuting defendants was deficient, and indeed reforms were made.

However, the fact is that the Bill of Rights continues to be routinely used as a ground for attempting to overturn the admissibility of evidence, including confessions, evidence obtained under search warrants and breath testing of drunk drivers. It gives lawyers a new source of technicalities to allow the guilty (including those who have confessed or were found with large quantities of drugs in their possession) to go free.

Bills of rights are notorious for being the last ground of the desperate in litigation. The broad terms of ‘rights’ can be argued to cover almost anything. For example, the NZ courts have considered the case of a man who claimed that the Bill of Rights protected his right to walk down his suburban street naked (on grounds of freedom of expression, religion and belief) and a case where it was claimed that a rise in rent for public housing breached the ‘right to life’ in section 8 of the Bill of Rights.

In a recent Australian case, a prisoner brought a legal action on the basis that his human rights were being abused because there was not enough variety in the vegetarian meals offered at a prison. He relied on the International Covenant on Civil and Political Rights, which is often described as the International Bill of Rights. However, his claim was rejected because (unlike a bill of rights) the treaty is not enforceable at Australian law.

While those who propose the enactment of a bill of rights do so with the intent that it be used for lofty purposes, the more likely result is expensive litigation concerning naked strollers, vegetarian menus, and new ways to avoid losing your licence for drink driving.

Lothar: Divine Order Versus Secular Structures

The word 'God' in the above diagram refers to the divine order of creation, rather than the concept portrayed in the various interpreted religions of the world. God, in the context of the diagram, is the same as the "Great Spirit" (etc) of pre-taker tribal societies. This is the God of earlier times, not necessarily the God of the sages who wrote the New Testament of the Christian Bible. The diagram simply contrasts the secular structures and man-made order of modern nation states and interpreted religions with the natural order that tribes, flocks, herds, hives, and all other collections of creatures follow.

Every social group has rules of conduct and ways of achieving order. The key difference between the two sides of the diagram is that on the left the rules evolve within what is practical, while on the right the rules are determined by elites. Whether those elites are in religious institutions or state institutions they determine how others in the society should live.

In 'modern' society the parrot people of the media often tend to reinforce the notion that the way the churches and the various layers of government say we should live is the way we were meant to live. This is an implicit message, for as Daniel Quinn notes, we are seldom aware of the paradigm that he terms 'Mother Culture,' even though we live by it all the time.

Carr: Access to justice

While the Courts are swamped with thousands of Bill of Rights cases, where will the ordinary person go for justice? The Courts will be made even more inaccessible and the cost of running the court system will increase. The main beneficiaries of a bill of rights are the lawyers who profit from the legal fees that it generates and the criminals who manage to escape imprisonment on the grounds of a technicality. The main losers are the tax-payers, and society in general through the reduction of community values to mere court room weapons.

Lothar: On the left of the diagram is the natural world where all creatures are free to determine, for themselves, how they live. They do this within the practical bounds set by the divine structure of nature and the cosmos. A bird is designed to fly, so it can migrate from one continent to another without regard for any rules other than those imposed by climatic conditions and the availability of food and water along the route. Migrating birds often fly in vee formations, because this arrangement allows them to all have clear, undisturbed, air. Only the laws of aerodynamics govern how the migrating flock travels. There are no imposed rules about the way birds are allowed to fly.

Carr: Conclusion

Parliaments are elected to make laws. In doing so, they make judgements about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgement is correct. However, if the decision is unacceptable, the community can make its views known at regular elections. This is our political tradition.

A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy making functions to the judiciary. I do not accept that we should make such a fundamental change just because other countries have bills of rights. The culture of litigation and the abdication of responsibility that it engenders, is something that Australia should try and avoid at all costs. A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.

Lothar: Conclusion:

On the right of the diagram the situation is quite different. There are rules in many denominations of the Christian religion that prevent women from becoming ordained ministers. There are rules in some countries, such as China, that allow each couple to have only one child. There are rules that prevent people who flee Afghanistan, and travel to Australia in unseaworthy river boats, from living freely in that country.

Instead, men women and children are held in what are effectively prisons, at the pleasure of the Federal government. There are rules that prevent more than limited amounts of money from being taken out of one country and into another. There are rules about rules about rules. And all these rules and laws are human inventions. None of them are natural and divine. Yet, they must all be obeyed, because that is the way we were meant to live. The nature of their rules is a key difference between the natural order on the left of the diagram and the man-made order of collectivist states, on the right.

The Rabbits Who Caused All The Trouble

Within the memory of the youngest child there was a family of rabbits who lived near a pack of wolves. The wolves announced that they did not like the way the rabbits were living. (The wolves were crazy about the way they themselves were living, because it was the only way to live.) One night several wolves were killed in an earthquake and this was blamed on the rabbits, for it is well known that rabbits pound on the ground with their hind legs and cause earthquakes.

On another night one of the wolves was killed by a bolt of lightning, The wolves threatened to civilize the rabbits if they didn't behave, and the rabbits decided to run away to a desert island. But the other animals, who lived at a great distance, shamed them saying, "You must stay where you are and be brave. This is no world for escapists. If the wolves attack you, we will come to your aid in all probability."

So the rabbits continued to live near the wolves and one day there was a terrible flood which drowned a great many wolves. This was blamed on the rabbits, for it is well known that carrot-nibblers with long ears cause floods. The wolves descended on the rabbits, for their own good, and imprisoned them in a dark cave, for their own protection.

When nothing was heard about the rabbits for some weeks, the other animals demanded to know what had happened to them. The wolves replied that the rabbits had been eaten and since they had been eaten the affair was a purely internal matter.

But the other animals warned that they might possibly unite against the wolves unless some reason was given for the destruction of the rabbits. So the wolves gave them one.

"They were trying to escape," said the wolves, "and, as you know this is no world for escapists. "

By Margo Kingston, Gregory Kable, Lothar & Bob Carr Dec 4 2002


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Middle Eastern: Specific Legislation
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Howard defends terror alert
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Greens more of a human touch
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Koch's Skoff Channel 7' Sunrise
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The Australian Flag - Burn baby burn
If John Howard is not constitutional and racist. If our obligations to human rights are not being upheld, then burn baby burn the Australian flag in protest and start it with little Lucifer like a picture of Bob Carr.

About Protesting &: Corporate media, Ben English and Rachel Morris who spell their names in capitals? [Yes too right! Ordinary people some protesting against the occupation, murder and genocide of hundreds of thousands of innocent men, women and children. And you call yourselves reporters? You should hang your head in shame and go get jobs defending those poor innocent people. Shame on you!!!]