Should Australia Have a Statutory Bill or Charter of Rights?

| May 19, 2009
NHROC logo

The question of a bill or charter of rights is integral to our national conversation about how human rights might be better protected and promoted in Australia.

As a lawyer with a keen interest in human rights and youth issues, it has always struck me as strange that many Australians, whilst familiar with America’s Bill of Rights, understand little about how human rights are protected and promoted in our own backyard. Many seem to be under the impression that Australia has our own Bill of Rights. We don’t.

The question of an Australian bill or charter of rights has certainly been a hot topic during the National Human Rights Consultation. It is consistently raised both at our consultations and in people’s submissions. It has also inspired great debate in the political arena as well as in the media.

Public feedback tells us loud and clear that the question of a bill or charter of rights is integral to our national conversation about how human rights might be better protected and promoted in Australia.

The Committee’s Terms of Reference include that "The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights".

There has been some confusion as to just exactly what this means. I would like to emphasise that the Committee welcomes all views on all aspects of the human rights bill or charter debate. 

As a lawyer with a keen interest in human rights and youth issues, it has always struck me as strange that many Australians, whilst familiar with America’s Bill of Rights, understand little about how human rights are protected and promoted in our own backyard. Many seem to be under the impression that Australia has our own Bill of Rights. We don’t.

The question of an Australian bill or charter of rights has certainly been a hot topic during the National Human Rights Consultation. It is consistently raised both at our consultations and in people’s submissions. It has also inspired great debate in the political arena as well as in the media.

NHROC logoPublic feedback tells us loud and clear that the question of a bill or charter of rights is integral to our national conversation about how human rights might be better protected and promoted in Australia.

The Committee’s Terms of Reference include that:

"The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights".

There has been some confusion as to just exactly what this means. I would like to emphasise that the Committee welcomes all views on all aspects of the human rights bill or charter debate. 

The Committee’s Terms of Reference simply make it clear to people in Australia that the Australian Government won’t be considering an option that would see a bill of rights in the Australian Constitution.  This would require a special procedure – a referendum – to make the change. Our Committee will not consider proposing such an option.

Of course that doesn’t mean you shouldn’t discuss it, or that we won’t refer to your opinions in our final report. I have no doubt that this discussion forum will again highlight passionate advocates of the cases both for and against a constitutional bill of rights, as well as the cases for and against a statutory bill of rights.

The ACT and Victoria have charters of rights. These are ordinary pieces of legislation made by the parliament and which can be changed or revoked by parliament like any other law.  Supporters have argued that they offer an additional layer of protection from human rights abuses, whilst critics say they are just another level of bureaucracy. If you feel strongly either way, we’d love to know.

Please tell us:

Do you think Australia needs a new national law to protect and promote human rights?

If not, why?

If so, why?  

What model do you prefer?

Your thoughts will be of interest to the Committee. 

The National Human Rights Online Consultation closes on Friday 26 June 2009.

So here’s your chance to weigh in on the discussions. Share your views!

Father Frank Brennan
Chair, National Human Rights Consultation Committee


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  1. olimac

    May 19, 2009 at 5:01 am

    Bill of rights
    I'm disappointed that the Government hasn't allowed the committee to include the option for a bill of rights. I think it is a good idea.

    • cmpmal

      May 27, 2009 at 8:56 am

      Delighted that there’s no chance of a Bill Of Rights.

      The reason I'm happy it isn't going to happens is that a Bill Of Rights would allow a whole bunch of minorities to impose their will on the majority.

      An excellent example is homosexuals, a tiny proportion (less than 2% according to LaTrobe University) of Australia's polpulation who are doing their best to impose their chosen behaviour and values on the rest of the country in the form of gay marriage.

      In America, they've been able to get this through because over there it's judges who make decisions rather than politicians. 

      If for no other reason, I don't want a bill of rights over here.

      I don't ever want to have to say "I'm married, to a woman" 

      • Bayne MacGregor

        May 27, 2009 at 2:06 pm

        Equality is not Tyranny

        Equality is never tyranny.

        Having to accept others different from you as equals is not an unfair burden, no matter how less populous they are. According to wikipedia Indiginous Australians are only 0.6% more of the population than homosexuals. Should Aboriginals not be allowed to marry or have children or adopt or have access to fertility treatment for no other reason than that they have a different culture and some different skin colouration? Should they not be allowed to speak their languages, learn and teach their traditions, follow their belief systems and practice their cultural practices because there are less of them?

        Do small numbers of people not matter at all? Should small groups have no rights? Be disposable? Be forced to conform to be like the majority?

        See one of the very reasons other countries had the wisdom to create bills and charters of rights is to protect unpopular minorities from being abused by the majority. The majority still gets to rule but with a strong limit to stop that rule being abused. Whether a group or just one person the limit of the majority is one of simple fairness. Equality.

        And of course there are the Ancient Homosexual and Transgender cultural traditions of Aboriginal, Torres Strait Islands and our neighbouring Polynesian and South East Asian cultures! Those traditions are every bit as valid and arguably moreso than imported Abrahamic traditions (and only modern altered versions of them at that) that have only existed in this country for a couple centuries, and were secularised long ago allowing civil marriage, inter-faith marriage, inter-racial marriage!

        If you were the one in the minority wouldn't you like to be allowed to be married to your wife rather than prevented from doing so? Thats the thing with equality. You have to treat the minorities, even the gays who want to have all the same legal and financial benefits for their consenting relationships you have for yours, the way you would want them to treat you if the situation was reversed.

        See not being able to impose your will over minorities anymore and having to treat them as equals is not them imposung their will over you. Not even close.

        Equality is not tyranny. But denying people equality…. that is.

    • cmpmal

      May 27, 2009 at 8:57 am

      Delighted that there’s no chance of a Bill Of Rights.

      The reason I'm happy it isn't going to happen, is that a Bill Of Rights would allow a whole bunch of minorities to impose their will on the majority.

      An excellent example is homosexuals, a tiny proportion (less than 2% according to LaTrobe University) of Australia's polpulation who are doing their best to impose their chosen behaviour and values on the rest of the country in the form of gay marriage.

      In America, they've been able to get this through because over there it's judges who make decisions rather than politicians. 

      If for no other reason, I don't want a bill of rights over here.

      I don't ever want to have to say "I'm married, to a woman" 

    • Vytautas B. Radzivanas

      June 15, 2009 at 1:38 pm

      Amen to olimac’s commen

      Before I actually start my thoughts, I missed your submission deadline by a few hours due to some personal logistical time problems over the lst month, so at least I can get a few thoughts in by this on line method. Secondly, the on-line comment website is one of the least user-friendly I have seen. Maybe teenagers can navigate through the various ambiguities, but for some of us older blokes who are computer illiterate, I almost wound up losing the link because my computer told me that your site was suspect and unsecure in giving my password and I should delete it. With great trepidation I took the risk and eventually got here, but no comment box was even initially evident. It took a long time to realise that one had to click the name of the article to get the comment screen up. Why cannot it be presented in a more intuitive and easily evident format? I would therefore add a clause on human rights that all instructions for bureaucratic governmental communication be given clearly and intuitively so that it is not only the younger people who are with it for high tech, but that others with less cleverness be able to deal with government bureaucracy. All that being said, I can now give a few thoughts.

      I am extremely disappointed that the sovereignty of Parliament be the repository of human rights in Australia because it is only when there is a constitutional transcendance over and above the political flavour of the month that is part and parcel of parliamentary systems. Parliaments are there to pass legislation, and parliaments are chosen by voters, the same voters who can be true to human rights one day, but can turn in the other direction another day.

      The reason you need a Bill of Rights in the Constitution is to protect the people from the Parliament's laws when politicians see that they can be elected by pandering to the lower emotions that the voters sometimes get embroiled into as a reaction to some well known event. That the event may be a rarity doesn't matter, anger feeds on itself in the process, so legislators essentially become held hostage to pass draconian laws or they lose the next election. A more circumspect and rational social environment goes out the window and those who disagree with the draconian laws wind up being bullied or derogated. In a sense, if you're not with us you're against us.

      But draconian laws can bite in both directions, and can wind up persecuting the innocent as well as the guilty, so one should always be careful of what one wishes for in terms of wishing to make sure all these bad people be put in gaol, for good. But what happens when you, who demanded such draconian laws, wind up in a situation where someone else thinks you are the bad guy and you wind up in gaol even though you're innocent. But the law is the law, isn't it, and after all, you wanted that law. And hasn't it happened several times over in recent years, that innocent people who had to endure 12 years ot of their life because of an overzealous police or prosecuter through holding back evidence which could have cleared a suspect, went out to claim the prize for number of convictions as equating lowering crime statistics. Everybody these days wants mandatory sentencing laws, but in the emotional fray, in reality it is not the sentencing laws that they seek. No, from what you see and hear in the media, the lynch mob mentality are demanding mandatory convictions, ie, presumption of guilt with the refusal of any possibilty of any credible proof of innocence. Who cares whether the particular person is innocent or guilty, as long as there is a conviction. More convictions are seen by the public, and therefore the politicians as well who want votes, as thinking that is is now safe to be on the street even though the real crriminal is still out there among us while the innocent guy takes the rap.


      It is essential to have a Constitutional Bill of Rights to make sure that laws passed by Parliaments of the day must adhere to the universal and everlasting principles of Human Rights regardless of how popular a particular law against human rights may be to the voters, and that all laws passed by Parliament be suject to Constitutional review. Analogously, it's like looking at the need to oprate within the design parameters of a major project. You can consult among the stakeholders with various ways of best running the system, you can disagree, find new more creative ways, but if you operate outside the design parameters, it will not work, and often with disastrous results. We need a Constitutional Bill of Human Rights as a design parameter to keep our democracy running well. Simply the idea of the greater number of yae's on a vote or the survival of the fittest will not guarantee fairness, and can even do the opposite.

      Look at the demands of the populace in the Soviet Union in 1917 and in Nazi Germany in the 1930's and other societies before and after. Everybody cheered draconian laws as being the saviours per the desired outcomes, until they found out that these draconian laws brought on untold misery to the same people who had supported them.

      We need Principles to be established first in the Constitution, and then we can see what leeway we have in our laws to remain true to our principles in the human rights field. If we work in the opposite direction, which tends to be the reactive rather than the proactive case, when we make laws to micro manage a particular desired outcome and only then later define the principles which we consequently should espouse in order to achieve those outcomes, this is reverse logic. With this, we come up with contradictions in principles. The particular desired outcomes which consequently require espousing one principle can be then found to be an opposite principle for another desired outcome, leading to contradictory principles if one follows that reverse logic. And that leads to not having principles at all, so only the political flavour of the month goverrns with no guarantees of human rights.

       Please, please change the Terms of Reference to the possibility of a Constitutional Bill of Rights. If that isn't there, then it would be difficult to even proceed to the more specific questions you have asked until the principles have been first adopted in the Constitutional to transcend laws which might violate these principles.

      I will address another topic, one regarding the issue of monarchy, republic, and Indigenous Australians in another message a few days later, since this is already a long message. But this later topic is very germain to Human Rights and a possible way of genuine reconcilliation between the original owners of this continent and all other of us who are migrants, regardless of how lmany past generations long ago or how recently we arrived, whether by convict ship, luxury liner, or refugee boat. None of us as migrants should feel more entitled than another.




      • sally.rose

        June 16, 2009 at 12:24 am

        Thank you for perservering with the technology

        Hi Vyt

        Thank you for perservering with the technology and participating in the forum.

        If you are experiencing any further difficulty in making your future posts please feel free to contact me for assistance.

        Best Regards

        Sally Rose

      • Vytautas B. Radzivanas

        June 25, 2009 at 6:33 pm

        Extending Human Rights from individuals to communities

        I am following on from my previous comment back in 15 June where I mentionrd the connection between form of government, form of statehood, and the Constitution having a Bill of Rights as a means of promoting reconcilliation between the original indigenous Aboriginal Australians and all others who are basically migrants. We often look upon human rights as rights of individuals. However, there are community, ethnic, cultural, social, and other collective human rights as well.

        One of these is a human right of sustenance of an indigenous culture in an environment of a majority of the population being of migrant stock. I see very major similarities between Australia and other parts of the world where over time of history, the stronger of the might is right brigade in many parts of the world have ethnically cleansed entire indigenous populations, even in fairly recent times. When the Soviet Union fell, somer of the restored indigenous nations having gotten back their independence found themselves as a minority within their own country, because Soviet policy was to Russify the overtaken nations, and included  both physical and cultural genocide. Similarly, the Third Reich did the same, not only to their ethnic and religious minorities but neighbouring countries as well. Some nations are virtually extinct in their own counry and elsewhere, such as the old Baltic Prussians who were wiped out by the Teutonic Knights centuries ago and the German conquerors simply took on the Prusian name, and now since World War II, t was ethnically and culturally cleansed and is now called the Kaliningrad Province of Russia.

        And in these cases, they were still of a European-type cultures and ethnicities where the differences between the conquerors and the vanquished were not as great as the differences between the European migrants and Australia's indigenous Aborigines. And we now see that the indigenous people of the country are now not only a minority in number in their own country, but they are being de-cultured by the rest of us.

        History cannot be reversed, and the population ratio between the indigenous Australians and migrant Australians in practicality will remain. However under the concept of Human Cultural Rights, there needs to be a redress to restore a balance of the appreciation that Australia is a continent of a number of indigenous Aboriginal nations. If we can look beyond the square to recognise that, just as itis important for, say as an example, Latvia to be Latvian, but at the same time to have democracy and equality of human rights for all its citizens who may have included migrant communities of Russians since World War II or Germans since the time of the Teutonic Knights who had conquered Latvia during the 1300's, it is just as important that Australia be Aboriginal but at the same time to have democracy and equality of human rights for all Astralians who are of migrant stock such as the English, Irish, Italians, Greeks, Lebanese, Papuans, and all, even those of my own ancestry, Latvia's neighbours Lithuania which fortunately for history has maintained its majority indigenous population. 

        So how do we combine a modern democratic society in Australia with one of the most basic violations of human rights, that of the importance of the primacy of the indigenous peple of any country?

        If, as I had argued in my previous comments, there could be a Constitutional Bill of Rights, not only would these rights of individuals but also the rights of communities would be guaranteed to be protected from the reactive swaying of the winds by a populace which might follow the creed of might is right. It has always been my contention that majority who vote in politicians may demand draconian laws which could be against human rights. The sovereignty of parliament must be cjecked against the basic principles of humanity. How can we be sure if the laws that Parliament passes will not result in human rights abuses, especially when heated emotional reactions by the majority population demand such draconian laws against human rights. Following on from that contention that a Bill of Rights should be included as a preamble to the Constitution, while we're at it, why not adjust some oyher changes in our Constiturion which could not only protect individual personal human rights, but establish a community and cultural environment for reconcilliation to restore the dignity of our indigenous Aboriginal Australians. Perhaps my suggested concept may be too radical ast first glance and p[erhaps it is a bit of a tangent from the majority jist of these consultative discussions, but I do hope that somewhere along the line my thoughts might strike a chord.

        Other than the majos such country where a head of state and the head of government are concurrently one and the same official, the President of the USA, most countries have a separation between the State and the Government, and it is in this context that I feel Australia can do a real reconcilliation. Consider the proposals that have presented to change Australia from a monarchy to a republic. Seems like a simple yes or no answer, doesn't it? Well, there's a bit more involved. This issue is that of the State, not the Government. Regardless of who is Head of State of Australia, be it a Kimg, a  Queen, a President, or any other form of a Head of State, such a Head of State does not rule in the Government sense. The Government is run by the Prime Minister through Parliament, so by a change of Head of State, there woulkd be no real reason why our democratic processes should not continue as they are, just making sure that we as a society do not fall astray to our principles of human rights and this is where the Constitutional Bill of Rights woluld insure.

        Being a member of the British Commonwealth, our current Head of State, the Queen, is Head of State of a monarchy, and being a Head of State of a number of countries where it is only possible for her to reside in one country, she is represented in the other countries by a Governor-General in a monarchy form of statehood, as with Australia. However, the Queen is still the legal Head of the Commonwealth and therefore, even a republic in the Commonwealth is still subject to het through the protocols of the Comonwealth. I would see a President of a republic in the Commonwealth as formally being the representative of the Queen who was elected by the people rather than appointed by her, even though her appointment be nominated by the Prime Minister in a monarchy.

        Therefore,  there are two questions of Australian Statehood, Not Government, that must be answere in this issue, not jut one of monarchy or republic. The two questons are first, do we want to sever ties with the Commonwealth? The other question is what form of Statehood do we prefer, monarchy, republic, or other various formats. Remembr, that I am speaking about Statehoood, not Government, which will continue in its democratic form. Putting these two questins into a referendum yields four or more possible scenarios. First, a monarchy within the Commonwealth, as present. Second, a republic within the Commonwealth with an elected President who would titularly still be subject to the Queen as Head of the Commonwealth. Thirdly, a republic without ties to the Commonwealth and I think that this is the model that most republicans think about but unless there is that severance from the Commonwealth which I think few peope even realise this aspect, Australia would still not be a fully independent Australian Head of State. Fourthly, a monarchy wthout ties to the Commonwealth, in other words, a totally separate Australian royal family distinctly Australia and in full time residence in Australia. The other moels I will yet get to, but just to show how a totally Australian monarchy could be achieved, considersome possibilities. Obviously for a monarchy, the monarcj must have royal blood. When the Jagiellan dynesty died without issue in the Lithuanian-Polish Commonwealth inthe 1500's, foreign kings were invited to rule provided they rull full-time in rsidence. So one option is to find a royal from anywhere to set up shop, so to speak, and become Australia's King or Queen and establish an Ausytaliam royal lineage. Or, tere may be a royal already living in Austraia to start an Australian dynasty. Anothr option is that eithe Princes Willioam or Harry could stay King of Britain and the other would renounce the British throne to take up the Australian throne. Finally, what about Princess Mary's of Denmark children. After all, she is Australan. Again one could be monarch of Denmark, and another renounce the Danish throne to start an Australian royal lineage. Where there is a will there's a way. But I'm mainly trying to get people to look outside the box, there are a lot moe options than meet the eye and those which tend to appear obvious may not necessarily achieve what people might think, such as with the republic still witin the comonwealth.  

        And now, having set the stage and context of this Statehood issue, I suggest that we sever ties with the Commonwealth in order to be fully sovereign and independent,but select neither a monarchy nor republic, but change our Constitution to indigenoud Aboriginal Statehood. Again, I emphasise that I am notsugesting a change in the form of the Government, bujt only in the form of Statehood. The Government, Parliament, all the mechanisms of Australian Government stay exactly the same as they are with the proviso that a Bill of Rights be enshrined in the Constitution. The aspects of Statehood, such as an indigenous Aboriginal Head of State, the Aboriginal Flage to be the official State Flag of Australia, indigenous Aboriginal languages to be the official languages of the varous Australian nations, etc. English would still remain the primary language of convenience and would still hold a special place, but ther migrant groups would have their human rigts to sustain their language, culture, and traditions, be they Irish, Norwgian, Algerian, Zulu, or Tibetan. I'm talking about giving Australian indigenous Aboriines the pride of getting their country back officially, not about undoing the advances that all Australians have achieved.

         There was once a great indigenous Aboriginal leader, Senator Neville Bonner. There are great leaders in the Aboriginal communities today who would do proud to represent Australia to the world as Head of State. How to select sucj a Head of State? Why not have the indigenous Aborigines themselves make that selection by whatever culturally appropriate manner. Perhaps a rotation among elders of the varous netions, or by election, or by selecton such as in a Grand Duchy, the Dukes would select among themselves the one who woukd be the First Among Equals, or any means the indigenous Aboringinal Australians find best suit them, and then to enshrine that into Australia's Constitution.

        I know that many people might not wish to change Australia's flag, but, again looking at what has happene in the rest of the world, flags of the conquerors have give way to the  genuine flags of the indigenus peoples, and in some cases, the old flags do have a pride of place as supplementary flags. Our Anthem could remain, but have the words translated into the various indigenous languages. Or select another anthem. Those who attended the 2009 Oz Concert surely would have been moved by a rendition of the song I Am Australian in the Nyungar language with chorus in English. These are ways that we can restore our indigenous Austraians back to see their own country wit pride. And again, none of this woulkd take away our democratic way of life through oyr Government. This is the brilliance of the concept of separation of Statehood, which transcends time and history, and Government, which allows the creative evolution of social excellence.

        Just a few thoughts on the Sorry issues. It is unfortunate that the sequencing of the apologies, such as for the Stolen Generation, was not planned out in a more logical manner. Before any other apologies to our indigenous Aboriginal Australians, it was for the Queen, as representing the first migrant entry by British colonialism, to make the first apology. Certainly it is not a p;ersonal one since she did not personally cause the British conquest of Australia, but as the present British Head of state, it was her role, duty, and responsibility as the current Head of State, the Queen of Britain, Not as her separate role as Queen of Australia, to make the first movbe to say Sorry to the indigenous Aboriginal Australians. Since Federation, further apologies then belong to the Prime Minister as Head of Government of Australia for those Government policies which violated both infdividual and cummunal human rights of the indigenous people. There are many such needed apologies, but they must be dome in proper protocol, where Statehood was at fault, the Queen as Queen of Australia since Federation rather now than Queen of Britain or her Governor General should do the apologies, or the Prime Minister where tha Government was at fault, again not personally but on behalf of past wrongs of Government policies.

        Now just to finish up, a parenthetical questin, why do we still refer to our Australia's Head ofState as Queen Elizabeth II? My history books show that since Federation when Aiustralia became an independent country within the Commonwealth, there was no previous Queen Elizabet of Australia other than our current Queen. There was a Queen Elizabeth in England in Shsakespear's era, but Australia did not exist yet as a conquerir. So the current Queen Elizabet should be referred to as Elizabeth II if England, but Elizabeth I of Australia. And since Federation, all other Australian monarchs should have had their ordinal numbers reduced in order to refer the sequencing correctly. Again looking back in history at the Lithusanian-Polish Commonwealth, most Kings of Poland and Grand Dukes of Lithuania were the same person but as different Heads of State. However, there were exceptions where the Heads of State were different persons, and sometimes the numerical sequencing differed. For example, Sigismund I of Poland was Sigismund II of Lithuania.

        Anyway, today is the last day for on-line comments on thehuman rights issues, and I do feel that in the process of reforming our Constitution by enshrining a Bill of Rights of individuals as I encouraged in my previous comments, I also feel thatwhile on the topic of Constitutional change, we should consider the issues of human rights for communities as well to give our indigenous Aboriginal Australians their Statehood back, at the same time maintaining our Parliamentary Government. Render to the State that which is of he State, and to Government that which is of the Government. If we look at it in those terms, I think that we will have bridged a major gap between Australia's indigenous Aborigines and Australia's migrant communities.


        Vytautas B. Radzivanas 


    • rossdmcp

      June 20, 2009 at 1:00 am

      Bill or Charter of Rights
      I'm against a Bill of Rights for two reasons. I'm unconvinced that there is a compelling case for such a charter. If there are genuine instances where human rights are infringed, existing legislative processes are the best way to address this. Secondly, we elect politicians and governments to enact legislation to protect our freedoms. In other countries where such charters have been introduced, the result has been that legislative power shifts from government to unelected judges, and decisions are made against minorities that reflect their ideologies, over and against majority public opinion. Is this really the sort of thing we want to see happen in Australia? Is it really in the national interest?

  2. The Chartist

    May 19, 2009 at 5:13 am

    What model do I prefer?

    Certainly I am opposed to any "Bill of Rights"

    For better accountability, transparency, stability and long-term planning, I don't believe you can go past the idea of annual general elections.

    Only annual general elections which result in the need for a ballot in relation to every Budget (or major piece of reforming legislation that may affect our "rights") will force politicians to convince the electorate rather than to bribe it. With annual elections politicians cannot continue the pattern of soft pre-election Budgets and harsh post-election Budgets. If politicians don't believe that they can convince the people, then they really believe in rule by elites, not in democracy.

    Regards, David from Perth, Western Australia

    Annual General Elections will be the new world religion – of peace in diversity

  3. billofrights

    May 19, 2009 at 12:16 pm

    No Bill or Charter – We have ALL the good guidance we need

    As to whether we need ANY sort of legislation of this matter of 'rights', I think Mr Brennan succinctly answers the question himself…"Many seem to be under the impression that Australia has our own Bill of Rights." This 'impression' is a manifestation of the efficacy and reality of our current institutions to oversee all of our rights WITHOUT recourse to specific and uncodifiable matters covered by the label 'rights'.

    In other words, our citizens enjoy a tremendous amount of liberty and freedom, and our institutions in their current format are as good as its going to get.

    Bob Carr recently wrote an article in The Australian that quite rightly identifies that bills of rights or the like don't guarantee or protect anything e.g. black civil rights and others he listed.

    It would seem to me that, on the contrary the real danger exists of creating a great deal of angst and intolerance to the very people whom you're trying to protect by imposing specific edicts of morality without the airing of same through robust and vigorous debate over time amongst its citizens.

    A further danger is the underlying assumption that such legislation will be its own fountain of authority, and, that reference to the very source of our liberty, as we enjoy it now, that is the Judeo/Christian ethic, will not be required.

    Any rights issue needs to be decided by the people through their representatives, as this reflects the true heart of the nation's constituents on these matters.

    Even Jesus cut through all the legal mumbo jumbo of his time, and for us now, by 'hanging' all the law (and morality) on two edicts, the second of which we all know….love your neighbour as yourself (do unto others as you'd have them do to you), and the first, which we largely forget, to love Him will all the heart, mind and strength.

    We do not need any further interpretations of what we know is the right thing to do. What we need is a people with the courage to do the right thing based upon proven and immutable principles.

    In summary, Australia needs no such bill or charter of rights of any kind. We have all the guidance we need.

    • Bayne MacGregor

      May 19, 2009 at 4:53 pm

      Equality For All, not just some

      Actually our liberty comes not from Judeo/Christian tradition. Israel had Kings. Christianity backed absolute monrachies (such as the Holy Roman Empire). Democracy was a pagan tradition. Liberty of the individual came from Enlightenment philosophy as did modern democracy. We inherited the partially-reformed system from Britain which has moved beyond us to recognise rights itself now! The principles of Enlightenment Philosophy is not hostile to any faith nor putting any faith over others, and many of the same principles can be found in christianity and many other faiths too.

      Australia always has been multi-cultural. With it's multiple Native Cultures to having people of various faiths and backgrounds come in. We have had Arab Muslims and Chinese Taoists on the goldfields. We have Hindus and Ba'hai and Bhuddists and many more.

      The principles of human rights include freedom of religion for all and fair treatment for followers of all faiths.

      This is a country not just for Christians but for people of all faiths too. Confucious also said do unto others what you would want them to do unto you 500 years or so before Jesus lived. And Confucian Australians contributed much to this country despite systemic racist laws. And doing unto others would include respecting the faith of non-christians as much as you would like them to respect your Christian faith. They don't have to follow your other rule of loving Jesus though, just respect that you do.

      However i think your argument shows we do need a charter of rights, at the least to protect the freedom of religion in Australia for people of all faiths, not just the most numerous ones.

    • JEQP

      June 18, 2009 at 9:08 pm

      Behaviour vs Treatment
      To be precise, Jesus' two commandments refer to how people should behave, not how they should be treated. The whole "turn the other cheek" statement indicates that He was more concerned with how someone should live their lives in all circumstances rather than seeking protection or retribution for a wrongdoing. A bill of rights is not about how people should behave, but how they can legally be treated.

      • Bayne MacGregor

        June 19, 2009 at 4:04 am

        Multi-Faith Australia

        Interesting point.

        But again as Australia is now and crucially always has been a place with more than one set of beliefs then what is needed are principles that support religious freedom.

        Non-christians, which this country has plenty of and has had for tens of thousands of years, are not bound by Christian tenants or rules or obligations.

        We need rules that are fair regardless of which faith a person follows and are fair to Atheists too.

        A charter or Bill of Rights provides that. Making the Australian Jew, The Australian Muslim, The Australian Bhuddist, the Australian Witch, The Australian Taoist, The Australian Hindu and all the other Australian Religious and the Australian Agnostic and Atheist the equal of the Australian Christian of any denomination, all fairly treated.

        Australia is a multi-faith nation, and always has been for it's entire history. Any lack of total religious equality is an insufferable untenable and unjustifiable injustice.

  4. Bayne MacGregor

    May 19, 2009 at 4:33 pm


    A well written Bill of Rights harms no-one but protects those who most need protection.

    An advisery one rather than a constitutional one is easier to install in our processes, can be overridden in times of great need, can be trialed for a decade or so to see if it works well and yet will still improve human rights in Australia by ensuring old legislation gets reviewed and improved and new legislation gets screened for it's human rights impact.

    After all if every other developed democracy in the world can survive and prosper from protecting the rights of it's citizens with a charter or bill then why shouldn't we? Especially as with so many examples many generations old Australias could pick and choose the best aspects of them all and have the best one.

    We need more protection and promotion of Human Rights in Australia and an Advisary Charter is one of the swiftest and one of the best ways to do that.

    • Craig.Hendry

      May 21, 2009 at 11:49 pm

      “Sovereignty of parliament”?
      As I take the perspective of a qualified Social Planner who has been part of community consultative processes for a number of years I was aghast to see that this consultative process was immediately limited by the federal government placing restrictions upon any suggestions that may be offered up from the public regarding the subject matter. It is usual practice that the one seeking answers at least appears to be open to community feedback. Instead, what was said to the voting public during this “consultation” was that no suggestion would be considered which challenged the “sovereignty of parliament”. Claims of “sovereignty” as being the reason why an elected body restrict a public consultation to a narrow framework is indeed questionable. One can understand such claims when speaking to countries other than its own, but is hardly a justification for refusing to even consider a suggestion from the very people that created it. This may seem a pedantic play on words to some, but I think it is an important point which goes to heart of the matter and explains some actions this government is doing in overriding so many basic human rights with seemingly little consideration for the consequences. Regarding sovereignty, it is the PEOPLE who are sovereign, not the vehicle they create to serve them. The federal government appears to have forgotten this when it claims sovereignty as an excuse to ignore the concerns of the people that put it there by restricting even such a simple process as a community consultation.

  5. Fr Frank Brennan

    May 21, 2009 at 7:05 am

    Just to clarify…

    Just to clarify, our Terms of Reference indicate that the Government will not consider a constitutionally entrenched Bill of Rights, but that does not rule out a statutory Bill of Rights/Charter of Rights or Human Rights Act such as those existing in the UK, Victoria and the ACT. Furthermore, it also doesn't mean that a constitutional Bill of Rights can't be discussed.

    On a separate note, if we were to live by the motto, existent in numerous religions, faiths and belief systems in Australia, 'do unto others as you'd have them do to you' then we'd probably be part way there. But what should we do when people fail to respect the human rights of others? How do we in fact encourage people to respect, protect and promote human rights? How do we make sure that the Government is accountable when human rights are violated? What would you want to be able to do if you felt that your rights had been infringed by the Government or others? Doing unto others as you'd have them do to you didn't get Cornelia Rau very far, nor did it help Haneef, Hicks or others. Do you think that a Bill of Rights would have helped?

    Father Frank Brennan
    National Human Rights Consultation Committee

    • cmpmal

      May 27, 2009 at 8:48 am

      governments and human rights

      Frank, when you say " But what should we do when people fail to respect the human rights of others?" the obvious answer is: vote them out of office!

      Something that we would not be able to do if judges made rights decisions as you propose. 

       And when you say "How do we make sure that the Government is accountable when human rights are violated?" the obvious answer is the government IS accountable.

      While cloaking all this in very honourable intentions (protection of the poor, vulnerable etc.), it's obvious that a Bill Of Rights would clog up the courts, making justice slower and more expensive.  

      This would disadvantage precisely those you purport to protect – the poor and vulnerable.

      The only reason that I can think of that you are behind this Bill is that you want to ensure a lot of your fellow lawyers are on the gravy train for years to come!

       Tell me it isn't so… 

    • Jayz

      May 27, 2009 at 10:49 am

      Bill Of Rights

      Personally, I would prefer that the Australian Government:

      > revert in name to "The Commonwealth of Australia",

      > include a Preamble to the Constitution that acknowledges and describes the prior occupation, ownership and government of the continent by Indigenous Peoples with the Colonisation of the continent by Great Britain and

      > includes a second Preamble titled The Australian Declaration of Human Rights (that is verbatim and without alteration The Universal Declaration of Human Rights – signed by Australia in 1948 but never incorporated in Australian law)

      > includes thereafter the existing Constitution of Australia – with the proviso that the Powers of the Parliament are constrained by the second Preamble and actionable in any Australian Court by any aggreived person.

      Anything less than that is 2nd best and I believe its First & Best or not at all.



  6. ICAC_4_SA_NOW

    May 22, 2009 at 4:03 am

    Human Rights…

    When the day arrives that democracy and basic human rights are continually waived in favour of political point scoring and sensationalist media headlines, we will ALL need a system of checks & balances that protects All Australians…

    That day is here and now… Especially in South Australia where currently, our Government sets out daily to target & marginalise small sections of the community with ludicrous, draconian laws that deny the most basic of human rights and with an arrogance that absolutely floors me. And to make matters worse, other states are/or intend following suit to one extent or another…

    When did I sign up to be a part of the world's newest Dictatorship…??? NEVER!!! That's when…

    We certainly need something, and sooner rather than later… Ohh, and an ICAC (Independent Commission Against Corruption) in South Australia wouldn't hurt either…

  7. traceyf

    May 22, 2009 at 5:06 am

    Human Rights = A Fair Go
    Australia should have a Human Rights Act.  I have spent a year researching this topic as part of university studies and then as a campaigner.  I began this research feeling sceptical about such laws and am now converted to solidly campaigning for the same laws.

    Why?  After researching arguments and case studies I have learned that there are many people in Australia whose rights are constantly ignored or overlooked.  These people are vulnerable members of our society and deserve better treatment than what they are currently receiving.  

    Disabled people are being placed in shared housing with no choice of housemates or guarantee of safety.  I recently spoke with a vision impaired lady who is studying at university.  She has trouble studying because the Government does not provide vision impaired people with the same access to electronic research materials as to standard research materials.  

    Elderly people are also suffering rights violations.  I have heard of a case where a nursing home decided to cut staffing costs and pop our elders on the loo in the morning whilst they ate breakfast – issues of dignity and health are a concern here.  Old couples are being split up because the service providers don't cater for couples – imagine that, in your twilight years you are denied your life long partner – your right to privacy and family life because the service providers don't want to spend money on providing facilities.  Is this really a ‘fair go'?

    Young people who become homeless, (50% of Australia's homeless are under the age of 24) have trouble accessing welfare because they don't fit the criteria, or have the right ID or a fixed address.  Homeless people loose the ability to access education, health services, and the right to an adequate standard of living.  The cost of living is rising, and without access to affordable housing, so is the number of homeless people.  Without a home, a person can't shower, cook a meal, wash or iron clothing, sleep soundly, stay warm in winter, or feel safe.  This makes it very difficult to apply for a job or continue schooling and mental health issues are often the end result.  And the cycle begins again – homeless people with mental health issues are unable to access the mental health system and their conditions deteriorate.  

    Refugees and asylum seekers are detained in jails and treated worse than prisoners.  We should all be grateful that when our ancestors came here we weren't treated the same by the original inhabitants of this country.  Indigenous Australians still aren't treated the same as white Australians.  The suspension of the Racial Discrimination Act should be ended.  Indigenous Australians should be included in the decision making processes, and furthermore they should be recognised for the excellent work that many Indigenous communities have done in developing successful programs that return successful outcomes.  

    Australia in so many ways is the lucky country.  But not for everyone.  At any moment any one of us could suffer an injury, or an illness, that leave us disabled and many of us will live to an old age.  Circumstances could change and our children or someone you love could end up on the streets.  For many people, from all walks of life, life is hard and without equal access to services such as free health care and education and secure shelter the situation isn't getting any better.  

    So what would a Human Rights Act do for these people? For starters, the Government would have to consider the human rights laws when making laws and policy decisions and in delivering services.  So when making decisions about the health care system, the Government would have to consider if changing Medicare policies would infringe on an individual's human right to health care.  Elderly people in the UK have successfully won the right to be housed together in nursing homes and to be treated with dignity.  In Victoria, a single mum maintained her right to remain in her home after her landlord tried to evict her for no reason during the term of the lease.

    A Human Rights Act for many of us won't even be felt.  But it can make the world of difference if it is your rights that are in danger.  Better to have the safety net then risking free-falling.  It won't make everything perfect but it will provide people with a rights – which should be respected under law.  

    If you have an issue with protecting the rights of our elderly, our homeless and disabled peoples then I have to ask what is your agenda?  You may say that we all have an opportunity to make something of ourselves.  But it is important to remember that life doesn't present us with an equal starting line – we aren't all born with the same advantages, some of us have more and some of us have less.  We weren't all born in a country where our daily security is not an issue.  We weren't all born 100 per cent healthy.  Some of us have parents who have mental or physical health issues so we don't have a ‘normal' childhood.  A Human Rights Act will be able to make life a little more equal and offer a ‘fair go' for us all.  

  8. Damien Kingsbury

    May 25, 2009 at 4:39 am

    Civil and Political Rights in Australia

    As Acting Director of the Centre for Citizenship, Development and Human Rights, I am most interested to see how this online forum develops.

    At the moment I am researching how the Victorian Human Rights Charter and the United Nations declaration of human rights could be expanded upon to form a National Charter of Human Rights for Australia.

    You can follow this link  to read a chapter I wrote on civil and political rights published in the book 'Political Development' (Routledge, 2007).

    Damien Kingsbury

    Associate Professor, Associate Head (Research), School of International and Political Studies Deakin University, Melbourne

  9. ag02

    May 25, 2009 at 8:58 am

    We have enough protection

    It appears that at least part of the problem is not that the laws do not exist to protect our rights but that those laws were not properly followed (i.e., Cornelia Rau) and it should be noted that because of her case changes were made to procedures – that should be evidence that while the system is not great at least it is working. We make sure our rights are protected by holding our elected officials accountable and by a free press.

    What concerns me is that something similar to what happened in Victoria with the Racial and Religious Tolerance Act could happen in all of Australia.  In a case a couple of years ago the judge said that the truth was no defence when two pastors were accused of vilifying Islam.  That scares me.

    • Bayne MacGregor

      May 25, 2009 at 2:12 pm

      What Protection?

      We have 0 Human Rights protections.

      We have laws with no consistent principles, merely presumptions. Any law could be instituted to deny everyone freedom of speech, freedom of religion or any other human right!

      The only thing that could stop that is that in a democracy unpopular decisions result in voting choices.. but that means nothing unless you belong to the popular groups. The Human Rights of Intersex people as well as Transgender and Gay people in australia shows that the current system is not working. That its not a failure to enforce existing laws but often the laws themselves that are unjust and wrong.

      Thats not Human Rights, it's Human Wrongs. The unjust result of majoritanism that means that anything can be done to unpopular minorities by popular majorities.. thats contrary to the priniciples of modern democracy which is why every modern democracy has seen the need to limit the powers of the majority so that they can only do so much to the minority.

      As for the specific religious villification case, can you please quote the relevant comment directly with full context? As depending on definition and context the truth would be so nice to most other religions, christianities 'thou shalt not suffer a witch to live' comes to mind for just one example but we could hardly truthfully call all or even most christians pagan-hating wiccan-murderers.

      • ag02

        May 26, 2009 at 11:18 am

        That’s the problem though,

        That's the problem though, who decides what Rights?  When laws are decided by elected officials who are accountable to the people this is a far fairer system than that of a Charter whose meaning is decided by people who are unaccountable.  You answered the problem yourself when you said that the power of the majority is limited and you can also look at countries that have a Bill/Charter yet that has not stopped them from persecuting minority groups.

        For information on the vilification case if you search 'two dannys' you should get enough information, and you'll get both sides of it instead of just what I can give you.

        You might not call all Christians 'pagan-hating wiccan-murderers' – partly because you don't need to hate someone to kill them and killing someone isn't always the same as murdering them – but you should be able to say that you believe that the Bible calls for Christians to kill witches.

        • Bayne MacGregor

          May 26, 2009 at 3:01 pm

          Rights Origins, Protections for Minorities, Villification

          Rights come from philosophy, from in the logical consequence of assuming all people should be treated as equals and be equally free with that freedom bordered only by the boundary of others equal rights and that society exists to serve people for mutual equal benefit which we all do contribute to.

           All the rights come from those basic notions, not from politicians. Those are ideas that have stood for centuries, that can allow any faith to co-exist, are the foundation for modern democracy and are the reason many countries fought against Germany in WW2.

          To a large extent needs decides what rights.. for we wouldn't need to mention the rights of Intersex, Transgender Gay and Lesbian people, the Disabled, Elderly, Children, Indiginous Australians etc if they didn't get treated as not-equals so very much more than others. 

          Now true they have not always worked perfectly to protect individuals or miniorities from oppression.. but no other system of law and government has either. The problem has been people usng the letter of the law rather than it's meaning so as to excuse leaving African Americans, Women etc out of their clear obvious obligations to their rights.

           Still there have been plenty of landmark human rights cases around the world where the rights of minorities have been protected so that the system isn't perfect is no argument against it, as no system is perfect. All that needs be shown is that it would be better than what we have now. And that is I think quite certain.

          It doesn't need to be flawless, just better than things are now. Especially for thise who need it most, the unpopular and discriminated against and the hated and ignored.

          As for the case you cite, please at least give an exact quote where demonstrable truth was dissmissed as not allowed rather than interpretation exageration or missrepresentation of truth.

          For example context is important.

          I couldn't say 'Christians kill witches', or that 'killing witches is a central tenant of christian faith' because those are no longer true while I could say that 'the bible has lines calling for the killing of witches but this hasnt been acted on by most christians in centuries, depends on which translation/interpretation of the bible is used and is not a central part of the faith'.

          But if i leave out the context and just say 'the bible calls for the killing of witches' while technically stating a fact by leaving out the context I missrepresent the religious beliefs and practices of most christians today who can easilly live side by side with wiccans.

          And I could well see that a series of statememts without context while built with technical truths could result in missrepresentation and villification. A handfull of passages quoted out of context and I could be claiming that christianity is pro-rape, pro-slavery, pro child-murder, pro-murdering non-christians, pro-war and much more which totally missrepresents the actual christian religions of the world.

          • ag02

            May 31, 2009 at 4:25 am

            You said, “All the

            You said, "All the rights come from those basic notions"

            Where do those basic notions come from?  What philosophies?  And you realise that there is a place for inequality in society? 

            What about this:

            or this:,21985,25521677-5005961,00.html

            Minorities hardly need a bill of rights for protection.

            The two danny's case:

            Politicians often have not had the experience of living outside Australia, thus they bend over backwards to please immigrant communities without understanding what motives can lie behind some of these groups. Presently, we have been found guilty of vilification of Muslims under this ridiculous law, which is subjective and not objective, one where TRUTH is no longer a defence. This was clearly demonstrated in the tribunal procedure and outcome. Several times when we wanted to simply quote a verse from the Koran in response to questions put to us by the Islamic Councils legal team, we were stopped on the grounds that we could once again vilify Muslims by quoting from their Koran.

            (Catch The Fire April 2005)

            You said, "But if i leave out the context and just say 'the bible calls for the killing of witches' while technically stating a fact by leaving out the context I missrepresent the religious beliefs and practices of most christians today who can easilly live side by side with wiccans."

            But this means that you would not be able to be truthful.  You realise that don't you?  People may take 'the Bible calls for the killing of witches' the wrong way but you should still be able to say it.

            You said, "A handfull of passages quoted out of context and I could be claiming that christianity is pro-rape, pro-slavery, pro child-murder, pro-murdering non-christians, pro-war and much more which totally missrepresents the actual christian religions of the world."

            But you should be free to make truthful statements, even if they could be misrepresented.  Otherwise where do you draw the line?  I may be prevented from saying that many women suffer depression after having an abortion or that men who engage in homosexual behaviour have shorter lifespans – all because someone may take it the wrong way – and that is dangerous – not that someone takes it the wrong way but that we cannot be truthful because of other people's reactions.

            Patrick Parkinson  – Professor of Law; Head of School, Faculty of Law, Sydney University

            In democracies there is a long tradition of people holding and expressing and passionately debating their views of what is true and right. To risk curbing truth telling which offends others is to risk our way of life.

            The protection of truth telling is an important justification for the right of freedom of speech.

            At issue, is the freedom to express views about truth and falsehood, right and wrong, good and evil, which may offend others who have a different view on these matters. Religious vilification laws in practice, if not in theory, pose a grave danger to this freedom because of the collateral damage that can be caused by a legislative strategy to enforce tolerance.

            (P.Parkinson; ‘Enforcing Tolerance: Vilification laws and religious freedom in Australia', Nov.2004)

            Did you hear about the man who claimed that the Red Cross was discriminating because they ask, among other questions, if you have had male-to-male sex before giving blood?  Fortunately that case was dismissed but you understand the problem.,27574,25546515-29277,00.html – like I said before it's not the minority that needs protecting.

            "Recent cases including the nurse suspended for offering to pray for a patient and the British Airways worker sent home for wearing a visible cross have left many believers afraid to go public with their faith at work."- And this is with a Charter in place.


            • Bayne MacGregor

              May 31, 2009 at 4:49 pm


              "Where do those basic notions come from?"

              Why centuries, millenia in fact, of thoughts on right and wrong, justice and fairness. Equality, liberty and society existing to serve all within it. Especially from the movement of Modern Democracy away from Absolute Monarchy, Freedom of Religion was always a big part of that, and onwards it developed. If you need more than that I suggest the history of the last several centuries is filled with it.

              "What philosophies?"

               You want me to list them all? They come under the banner these days of Human Rights Philosophy. Building on from Egalitarianism through the arguments of the State of Nature (and the Veil of Ignorance which is an idea I recomend to you) and the Enlightenment and onwards.

              Though you can find the basic principles in the Bible, the sayings of Confucious, the teachings of Bhuddha, the writings of Lou Tzu and many others, they are after all common ideas of fairness found in many cultures and faiths.

              "And you realise that there is a place for inequality in society? "

              Why is there? And what place for what inequality? I see none.

              Your first example is about religious employers not being able to discriminate in employment. Well paid work is not a religious function. Besides, the same fight occured in the past with hiring women and non-whites. A churches religious practice is not interferred with. If it's going to have a secular practice involving wages and employment then of course it shouldn't be able to discriminate in who it hires for a job. And it can easilly avoid those problems by not involving itself in business.

              Your second is a charity choosing to apologise for offending a group in a cash-raising advertisement. They chose to apologise so what's your point?

              As for minorities not needing protection.. have you actually looked at any of the minorities complaints in Australia? Looked into the surgeries done on Intersex childrens genitals that get it wrong about 1/3rd of the time? Imagine someone gave you a sex-change operation against your will and tell me you think that would be fair, reasonable and not needing protection.

              Again you cite the two danny's case but not the pertinent details. Try quoting the verdict! Try quoting the argument from the case where it determined this was vilification not truth-telling. Then maybe we could discuss the facts of the case not baseless assertions. And even then, courts sometimes get it wrong, with current law or a charter of rights. So finding one bad incorrect judgement would not prove your point. The case you cite might very well be overturnable on appeal or ruled invalid by a later case.

              As for missrepresented… a truth miss-told is a lie. Bearing false witness, a sin to those religions that follow th 10 commandments even. Missrepresentation is lying and if it is a personally slanderous lie then current law would apply to it anyway. Which is totally different from devating the truth of something. And a charter of rights will likely strengthen not weaken freedom of speech.

              Maybe rather than opposing a charter you should instead that statements of evidential fact be especially protected? I could support that. You mentioned the homosexual lifespan study (out of context I might ad, unintentionally I'm sure. You may want to see what the studies authors have to say about the missunderstanding and missrepresentation of their study ) and of course I should also be able to cite this I could support a 'statement of fact' clause in free speech, where it has not been taken out of context or missrepresented though.

              A good way to test something for fairness is to reverse it. To put the shoe on the other foot or see things from the other side. 

              Lets look at the nurse example amongst the many you cite. Say your a seriously ill fervent and faithful Christian patient. A nurse, a Satanist, Witch or Voodoo Priest offers to perform a religious ritual on your behalf. Say asking Satan to grant you health. Would you happily accept that or can you imagine you might want them to keep their different religious practices to themselves? They could still do their job, worship Satan in the privacy of their own home or with their local Satanic group all without subjecting you to their beliefs on the job. If you met them socially you could discuss those beliefs consentingly and you could leave that conversation whenever you chose. A patient in a hospital has no such ability, they are trapped at the mercy of the workers and that makes a crucuial difference doesn't it.

              • ag02

                June 7, 2009 at 12:37 pm

                Responses to responses

                You asked if I would mind a Satanist offering to pray for me, I wouldn't mind the offer – would you want someone suspended for offering to pray for you?  Because that is what the article was about, the nurse was suspended for offering to pray, that's it, and this is in a country with a Charter.

                As the quote about the two dannys showed they could not even quote the Koran at times.  If you care about freedom of speech you must be concerned about that. 

                You said, "I could support a 'statement of fact' clause in free speech, where it has not been taken out of context or missrepresented though."

                You're missing the difference between saying "The Bible calls for witches to be killed" and "Christians are witch-burners" – although I think even preventing the latter from being said can be the start of limiting freedom of speech.

                Because the truth may be taken the wrong way by someone this makes it wrong?  What about freedom of religion, what about the Bible and Koran which both condemn  homosexual behaviour?  What about true statements that paint groups in a bad light.  I wasn't referring to the lifespan study you mentioned but you're missing the point because it is about being able to speak the truth even though it may be offensive or it may be mis-represented.  If it makes you more comfortable lets assume that Christians commit more crimes, would it be wrong to say that even though it paints them in a bad light?  That was the point about the statement that people who engage in homosexual behaviour having shorter lifespans.

                Do you have any references for the intersex cases?

                But because some minority groups suffer this means that a Bill is needed?

                You said, "Why is there? And what place for what inequality? I see none."

                Groups are constantly and appropriately being discriminated against – the blind can't drive, children can't drink, smokers can't smoke in public places etc.

                What do you mean by equality?  Do you mean that all individuals should be treated the same or that all groups should be?  Should equality be measured by outcomes?  If so, why? 

                You said, "Well paid work is not a religious function."

                What do you mean?  Do you mean that if a priest is paid then his role isn't a religious one?  Would you expect the Labor party to employ a card-carrying Liberal?

                You said, "Why centuries, millenia in fact, of thoughts on right and wrong, justice and fairness."

                What makes those notions right?  And where is this continued theme throughout history?  Because it only appears continuous if you firstly take the beliefs/notions you approve of and then look at history.  Even though someone may talk of equality what they mean by equality is different than what you mean.  Where is the continual, historical, universal definition of equality and fairness?

                You said, "Your second is a charity choosing to apologise for offending a group in a cash-raising advertisement. They chose to apologise so what's your point?"

                That if the Salvation Army has to apologise to prostitutes then it suggests that minority groups are not as powerless as people may think.

                • Bayne MacGregor

                  June 8, 2009 at 5:34 pm

                  Free Speech is ALREADY Limited

                  And ince again this flaw in your argument is not considered by you. We already have laws against Slander, Libel, Racial Villification and more in states without a charter or bill of rights!

                  So any such argument you make that free-speech may be limited is not an argument against a bill of rights as free speech is already limited without one.

                  A deliberatly miss-represented part of a truth is a lie.

                  An accidentally miss-represented part of a truth is a mistake.

                  A system where mistakes may be apologised for publicly, retractions etc surely would be fair wouldn't it? Whereas do we need protection for lying?

                  As for religion and homosexuality, the bible has a lot to say about slavery that doesn't get preached about any more, same with witch-burning. If the faith could survive no longer being able to call for the murder of witches (public incitement to violence laws cover this!) why should that not set a precedent? Or would you wish to return to pro-witch-burning and pro-slavery?

                  If you weren't responding to the study i mentioned where did you get your data from?

                  Also again context is crucial. Oppressed Indiginous peoples in much of the world are jailed dissproportionately. Is this a bias in conviction? Or is their crimes a result of the injustices of being dispossessed of land and culture unjustly in the first place? Mentuoning a crime rate free of context places blame solely on that group and ignores what makes things that way. Miss-representation is a lie or a mistake. Mistakes could and should be retracted but what value have lies?

                  As for Intersex theres been plenty you can find from past 60-minutes episodes to entire sites dedicated to the subject. This might be a good start and a quick google will help from there 




                  "But because some minority groups suffer this means that a Bill is needed?"

                  YES! If a bill of rights could make more justice for just one person it wiould be justified. As it would for thousands then it is moreso.

                  "Groups are constantly and appropriately being discriminated against – the blind can't drive, children can't drink, smokers can't smoke in public places etc."

                  Blind people cannot drive because they cannot without endngering the lives of others. Yet they require transport though as much as anyone. Their equal right to transport can be met by affordable public transport. Problem solved.

                  Smoking, again in public they endanger the health of others, in private they cannot. Thats a non-argument cause its allready recognised that the limits of ones rights are the rights of others! My right to punch people in the face is bordered by their right not to consent, so outside the boxing ring I don't have that right but inside it i do within the limits of agreed rules all parties give informed consent to.

                  So far those are within peoples equal rights! The fair limitations only being where a person harms anothers rights!

                  And that informed consent principle makes childrens drinking wrong too.

                  But where do Goths, Gays or Transgender people risk others lives? Their health?

                  "What do you mean by equality? Do you mean that all individuals should be treated the same or that all groups should be?"


                  "Should equality be measured by outcomes?"


                  "If so, why?"

                  Because if you say both left handed and right handed people have the right to arm-wrestle, but arm-wrestling can only be done right-handed you have created a disdvantaged situation where right-handers will dissproportionately succeed despite both groups being subjected to the same rules. An unfairness. Outcomes are needed to measure the actual fairness.

                  "What do you mean? Do you mean that if a priest is paid then his role isn't a religious one?"

                  No I mean a cleaner, a food factory worker, a bookstore clerk etc are not fulfilling religious functions but business functions even though the bussinesses may be christian owned. Though your right i should have made that more clear.

                  "What makes those notions right?"

                  That they have not yet been refuted. And yes at times in history they were unpopular, but popularity and truth are different things.

                  "That if the Salvation Army has to apologise to prostitutes"

                  Again, they CHOSE to. They were not FORCED to by laws or political power. 

                  "then it suggests that minority groups are not as powerless as people may think."

                  One instance or even several does not prove your point. If minority groups had so much power they wouldn't have these issues to bring foward as they would have fixed them ages ago! That they face discrimination at all still shows they don't have fair treatment or equality or half the power you attribute to them as tiny oligarchies of tyranny when all people are asking for is fairness.

                  • ag02

                    June 15, 2009 at 9:29 am

                    Of course speech is

                    Of course speech is already limited, that's why limiting it even further is dangerous.

                    "A system where mistakes may be apologised for publicly, retractions etc surely would be fair wouldn't it? Whereas do we need protection for lying?"

                    As you've said, we already have laws in place to protect people – you have to prove that we need more laws and you have not show that there is a need for even more laws and that there is a failure of current laws.  Why do you want judges to have even more power to decide what people mean by their actions? 

                    What you're also getting away from is that you are saying that facts have to be ignored if someone may get the wrong impression.  

                    "As for religion and homosexuality, the bible has a lot to say about slavery that doesn't get preached about any more, same with witch-burning."

                    Where in the Bible does it talk about witch-burning?

                    Actually slavery does get preached on, you should go to church more – you do realise that it was fundamental Christians who stopped slavery in England right?

                    "As for religion and homosexuality, the bible has a lot to say about slavery that doesn't get preached about any more, same with witch-burning. If the faith could survive no longer being able to call for the murder of witches (public incitement to violence laws cover this!) why should that not set a precedent? Or would you wish to return to pro-witch-burning and pro-slavery?"

                    So you're saying that people shouldn't be able to preach that homosexuality is wrong?  At least we know that you're not really interested in freedom of speech.

                    What I want is the continued freedom to say what I believe to be true and even though there are some limitations, I am still free to say that I believe witchcraft to be wrong and homosexuality to be wrong.  And since there are already slander and libel laws in existence there is nothing a Bill of Rights can offer except increased restrictions.

                    "Also again context is crucial."

                    Mentuoning a crime rate free of context places blame solely on that group and ignores what makes things that way. Miss-representation is a lie or a mistake. Mistakes could and should be retracted but what value have lies?

                    Don't you see that you want to create laws which will direct what we can and cannot say on the basis that they may be mis-represented?  You talk about mis-representation as though it is clear-cut, it is not, and if the fact is that Indigenous people are convicted of more crimes then that is a fact that should not be silenced.  This is the way it should be even if some people may take it the wrong way – and you should try being a pro-lifer after Tiller was murdered in America – read some of the news around that, talk about mis-representation but if a fact is a fact then that is all that matters.

                    "YES! If a bill of rights could make more justice for just one person it wiould be justified. As it would for thousands then it is moreso."

                    Apart from the fact that people have different conceptions of justice (for example, you probably believe gay marriage is justice, I don't), if you applied this logic to cars they would be banned, in fact so would EVERYTHING! 

                    "Their equal right to transport can be met by affordable public transport. Problem solved."

                    What about the cost?  What about the convenience – public transport doesn't compare with private.

                    "Thats a non-argument cause its allready recognised that the limits of ones rights are the rights of others!"

                    But all issues are not as clear-cut as blind drivers.  That's why judges shouldn't have the say, they are not experts on these issues.

                    "And that informed consent principle makes childrens drinking wrong too."

                    Who says they can't give informed consent? – society, not judges.

                    "But where do Goths, Gays or Transgender people risk others lives? Their health?"

                    I'm not sure where Goths are discriminated against, but when there is possibility that the homosexual lifestyle is unhealthy and that homosexual tendencies are partly the result of socialisation then I think that such behaviour shouldn't be encourage (n.b., I'm not saying that it should be illegal but there is a big difference between tolerating behaviour and approving of it).

                    The other aspect is the benefit to society, but we're discussing that on another post (I think).

                    Thanks for the intersex links but the second one isn't exactly an unbiased source (although if you accept my ‘two danny's' one, I'll take it) and the first looks like it's a debate as opposed to a fact.  And if it is a controversy then it should be decided by society not judges.


                    See the point about blind drivers.

                    "Outcomes are needed to measure the actual fairness."

                    So there is blatant discrimination in the garbage collection business?  The fact that there are hardly any female garbage collectors does not mean there is discrimination or inequality.  You cannot make assumptions about fairness based on outcomes. 

                    "No I mean a cleaner, a food factory worker, a bookstore clerk etc are not fulfilling religious functions but business functions even though the bussinesses may be christian owned."

                    Who says they are not fulfilling a religious function, talk to many Christians and their business functions are considered religious.

                    "That they have not yet been refuted. And yes at times in history they were unpopular, but popularity and truth are different things."

                    History is written by the winners?

                    "Again, they CHOSE to. They were not FORCED to by laws or political power."

                    But that wasn't my point.

                    "One instance or even several does not prove your point."

                    No, that's why I said, "suggests".

                    "If minority groups had so much power they wouldn't have these issues to bring foward as they would have fixed them ages ago!"

                    If they had that power ages ago then yes, but just because they have power now doesn't mean they had it then. 

                    "when all people are asking for is fairness."

                    Their opinion of what is ‘fair'.  That's the problem.

                    What about the 2 Danny's?

                    • ag02

                      June 15, 2009 at 10:18 am

                      If I could add that in not allowing the blind to drive you are agreeing that groups should not be treated equally.  Although I understand you think that the point is not about driving but about transport – even then if you compare the places you can acccess by private and public transport, it's not remotely fair, but what government could afford to and would it be right for blind people to have their own transport?

                    • ag02

                      June 15, 2009 at 10:48 am

                      Another addition
                      Concerning religious employment, if it is a normal organisation, for example, a newsagent, I don't see any problem with employing anyone of any lifestyle – but if it is for a religious organisation, if it is part of a church or mosque or whatever, where you are a representative of that organisation even outside work then I don't see the problem with having certain behavioural restrictions.  And don't just think it's about sex, drinking, smoking (for Christians), eating pork (for Jews) etc. those behaviours should be permitted to be regulated if it is relation to a job where the person represents the belief system, even if it is not deliberate (i.e., as priest).

                    • Bayne MacGregor

                      June 15, 2009 at 4:48 pm

                      Why do you think GLBT Equality is unfair?

                      A proper definition of free speech would reduce not increase laws restricting speech and make it far more consistant.

                      And I'm not saying facts should be ignored so people wont get the wrong impression. Thats idiotic. I'm saying taking a partial fact and allowing it to be missrepresented is a lie. One could quote any fact along with its full context and meaning and no-one would get a false impression.

                      Why do you insist that deliberately creating false impressions by missquoting facts out of context not only should be protected but is so important that Rights must be prevented in order to protect the capacity to lie?

                      Yes there are different concepts of justice, many are internally inconsistentand thus worthless at best and monstrous on average. You say same-sex marriage is not justice?


                      What crucially makes it not justice? See I can answer why it is. That reciprocal ethics, human rights, freedom of religion, freedom of personal choice for consenting adults… there are lots of 'why's for it being justice. Give me some cogent ones for it not being so.

                      Previously you stated that "marriages are instituted and encouraged because of the benefits they provide to society, stable marriages, stable families, stable society – gay marriages don't provide that to society"

                      And I responded with evidence to the contrary disproving your claim and proving my point. Same-sex marriage helps children of parents in same-sex relationships, thus providing benefit to society. Q.E.D. So refute my FACTS seeing as you claim to like facts or accept your position disproven.

                      And no, the statement that if a bill of rights would improve justive for at least one person they would be justified wouldnt ban everything. For starters Rights don't reduce the justice for some for the benefit of others, it renders equal justice. If one person has more need than all others that remains just for all!

                      "What about the cost? What about the convenience – public transport doesn't compare with private."

                      Making a disabled person productive also has a financial benefit to the community. Forcing them to remain locked at home has a cost to the community. A blind person has a right to access transport, not a right to kill themselves and others by driving. See the difference?

                      They are unable to drive because they cannot (currently, science may change this) do so while fulfilling their responsibility to the lives of others on the road. But they have a right to be able to get transport. Just like food and shelter – hence we have a disability pension.

                      People have Equal Rights despite being in different circumstances. This isn't a very complex notion. It's not about treating everyone as if they were identical clones in identical circumstances with the same wants desires and preferances. It's about giving everyone equal freedom and equal access to the benefits of society.

                      Left-handed people are different from right-handed. So a left-handed person will find left-handed scissors more comfortable to use. They both should have an equal right to purchase own and use scissors, that one smaller group needs left-designed handles does not refute that. You seem to argue that people should only have a right to scissors if it's only right-handed scissors. Treating people as Equals is not Treating people as Identical.

                      "That's why judges shouldn't have the say, they are not experts on these issues."

                      Then why do we let Judges have their say on Murder and Rape and Assault.. and already on Vilification? And who do you consider more qualified, who do you consider the experts on these matters?

                      "Who says they can't give informed consent? – society, not judges."

                      No. Cognitive scientists, psychologists, ethicists (thats philosophy again) and… lawyers and Judges! Because consent is involved in law plenty already. Such as with sexual assualt.

                      "I'm not sure where Goths are discriminated against"

             theres a bunch of international reports including Australia, plus the discrimination that happened to people I know, plus the discrimination I myself have experienced in the past.

                      "but when there is possibility that the homosexual lifestyle is unhealthy"

                      Seriously do some research. There's not a single 'homosexual lifestyle'. There is plenty of unhealthy heterosexual lifestyles too. I tell you what is unhealthy though, anti-gay attitudes resulting in a massively higher suicide rate especially youth suicide rate as well as mental health issues. All identified in the 70's as being caused not by being gay but by being discriminated against. 

                      "and that homosexual tendencies are partly the result of socialisation"

                      Where do you get that from? Try some more of those Facts 

                      "then I think that such behaviour shouldn't be encourage (n.b., I'm not saying that it should be illegal but there is a big difference between tolerating behaviour and approving of it)."

                      Indeed there is. The difference is deaths. And your opinion results in them.

                      "Suicide risks:
                      A national study by Jonathan Nicholas and John Howard presented at the Suicide Prevention Australia national conference revealed the following figures around suicide attempts:

                      Gay male: 20.8% had attempted suicide
                      Heterosexual male: 5.4%
                      Bi/undecided male: 29.4%
                      Lesbian female: 28%
                      Heterosexual female: 8.3%
                      Bi/undecided female: 34.9% "

                      Not accepting them results in deaths. What benefit is there to society for these people to die?

                      And as I said, there are other sources on Intersex so if you don't like the ones I quoted go find some others via google.

                      "The fact that there are hardly any female garbage collectors does not mean there is discrimination or inequality. You cannot make assumptions about fairness based on outcomes. "

                      A woman i went to school with became a motor-mechanic, a friend of mine is a carpenter, both face susbtantial sexism in the workplace so the answer is yes, actually you can!

                      As for religion-owned profitable businesses there is no excuse for the religion to extend into the workplace nor for the workers to be forced to be walking advertisements or representatives of that faith. The religious functions can stay in the church and mosque and the profit-making business can stay religious-function-free. Why should religion get unneccessary special-rights and special-treatment in the bussiness world?

                      "History is written by the winners?"

                      No philosophy like science and mathematics doesn't work like that.

                      "What about the 2 Danny's?"

                      What about them?

                      Either the ruling was correct because they did actually vilify others or the rulling was incorrect as courts make mistakes just like elected representatives and voters too. Neither possibility invalidates the appropriateness of the right to not be slandered or vilified! Now why not quote the records of the case? Show the legal argument used by the parties why it was or was not vilification!

                      "Their opinion of what is ‘fair'. That's the problem. "

                      I could make this post even longer by trying to explain reciprocal ethics to you but instead I'll ask a question.

                      How is it UNfair to give equal rights to Transgender, Gay, Lesbian, Bisexual, Intersex, Goth, Emo and Indiginous people?

                      It's far from a complete list but if your trying to claim that it is not fair then please explain how that is so. And how it belongs to principles of fairness that are consistent, unbiased, not religiously dependant and evidence-based.

                      Explain how what I am calling Fairness is somehow UNfair.

    • samir

      May 26, 2009 at 7:46 am

      Stop vilification

      Why do you think two Pastors should be able to vilify Islam?

      You are a person who is obviously don't care about human rights and need to give himself a right to abuse or vilify other religious groups.

      Had there been a legislation that protect every religion then no one can insult one another.

      • ag02

        May 26, 2009 at 10:41 am


        How do you define abuse or vilification?

        What about 'the truth being no defence'?

        Should there be a human right not to be offended?

        • Bayne MacGregor

          May 26, 2009 at 3:25 pm

          Defining Rights and Wrongs with Vilification and Offence

          No there is no right to not be offended.

          As a Goth and Transgender someone may be offended by my very existance or style of clothing, art, music and literature (even the stuff over a century old). They have a right to look away but no right to stop my self-expression because they simply dislike it.

          However if i walk up to them and shout a deliberate false insult at them this is different. Rather than simply having different tastes to them which they may dislike I have in fact intended to insult and hurt them.

          As people have different personal views on religious symbols or individuals what is blasphemy to one person may be faithful acts or a work of art for another. But there is a difference between dissagreeing with somone elses beliefs and making abusive statements about them because of their beliefs.

          So there can be no right to protection from being offended by others differences but their can be from false claims, from vilification, from abusive remarks.

          A quick google on vilification defines it thus:

          Definitions of vilification on the Web:

          • smear: slanderous defamation
          • abuse: a rude expression intended to offend or hurt; "when a student made a stupid mistake he spared them no abuse"; "they yelled insults at the visiting team"
          • In law, defamation (also called calumny, libel, slander, and vilification) is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. …

          It all seems pretty simple to me.

          • ag02

            May 31, 2009 at 4:30 am

            Whose definition?

            Who defines what abuse is?

            • Bayne MacGregor

              May 31, 2009 at 4:01 pm

              I already quoted a definition!

              We already have legal definitions of abuse, legal slander laws legal anti-vilification laws.

              Defined by judges, legislators, and more broadly by linguists and philosophers. Just like all other words and ideas.

              If your having trouble with definitions of simple words like abuse in a charter how do you handle the current laws?

              They too have words in them.

              • ag02

                June 7, 2009 at 4:10 am

                The point

                Who defines the meaning of words is very important because under any Charter or Bill of Rights judges can make words mean the complete opposite – and who can fire the judges?  Yes, in some cases the government can theoretically overrule but that is only by painting themselves as against human rights.

                Even given the definition of vilification which you provided which says that it is a FALSE claim and your response to me in a previous post where you said that "a truth miss-told is a lie"- reveals the problem. 

                You say that it is vilification that is wrong, vilification only refers to false claims, but then you say that telling the truth can be wrong – but that is not vilification is it?

                Even if it could be mis-represented, if it is the truth it should be almost sacred because each step that society takes to limit free speech is a step towards the restriction of all other liberties.

                • Bayne MacGregor

                  June 8, 2009 at 5:43 pm

                  Language is in constant change

                  Look up some basic linguistics and you'll see words meaning change constantly. Aweful was once good, the christian god wss often called aweful, as inspiring awe. Terrific comes from Terror, Thig was a governmental body…


                  So a charter needs to be built on Ideas not just the words used to express those ideas. Understanding the notions underpinning and expressed by those words is crucial.

                  A truth misstold deliberately IS a lie. A clear leaving out of crucial portions of meaning that changes the meaning and make it untrue.

                  Example: sentence: I have a dog bowl but i have never owned a dog.

                  If you missquote me by saing I said "I have a dog" while all those words were in my sentence that is not what my sentence said or meant. In favt the opposite to what I said has been said. A lie!

                  Now I could do the same with a paragraph and it would take up more space, leave a key sentence out of a paragraph and you change the meaning. Leave a key paragraph out of a page and the same thing can happen.

                  And again. There is no free speech now! If you want protected speech then argue for a charter that allows and protects unrestricted free speech so it will overturn existing slander, libel, incitement, sedition and villification laws!

                  Preventing a charter wont protect free speech because its already limited now and nothing is there to prevent that being limited further!

                  • ag02

                    June 15, 2009 at 10:09 am

                    “If you missquote me by

                    "If you missquote me by saing I said "I have a dog" while all those words were in my sentence that is not what my sentence said or meant. In favt the opposite to what I said has been said. A lie!"

                    If that's what you mean by mis-representing then we don't have a problem but, there is a HUGE difference between mis-quoting someone and not being able to say the truth because it paints someone in a bad light.

                    Think of the rules of quotation where you put … when missing out words etc.  It would acceptable to say "I have a dog…". 

                    "Now I could do the same with a paragraph and it would take up more space, leave a key sentence out of a paragraph and you change the meaning. Leave a key paragraph out of a page and the same thing can happen."

                    So the mistake the 2 danny's made was in not quoting the WHOLE Koran?  You see the problem, you wouldn't be able to say anything because you would have to include every single word of every single conversation or document.  Does that seem right?

                    "Preventing a charter wont protect free speech because its already limited now and nothing is there to prevent that being limited further!"

                    It will limit it further because at the moment the protections we have in place as a result of our system of government (and the strength of our press, which I think we are discussing in another post) means that free speech can only be further limited by the government, whereas with a Charter, speech can be limited by a few judges!

                    It's like I've said before just because the Queen can theoretically control Australia's armies there's no way she would (but if you responded to this on the other post we'll talk about it there).

                    • Bayne MacGregor

                      June 15, 2009 at 5:20 pm


                      "So the mistake the 2 danny's made was in not quoting the WHOLE Koran?"

                      I don't know the specific wrong they did, if any, as I haven't read the trial records and you haven't quoted any key points or findings of it directly. 

                      However again your seriously missing what I was saying. To give an accurate presentation of christian tenants from the bible for example one cannot just quote exodus but must quote the new testament to give an accurate representation. To only quote passages of leviticus for example would give a thoroughly false representation of most christian beliefs.

                      Obvious no? You have to include the pertinant bits. Not quote all of the begats.

                      "You see the problem, you wouldn't be able to say anything because you would have to include every single word of every single conversation or document. Does that seem right?"

                      Of course not because it's not what I was saying!

                      And where was the 'strong media' when Sedition laws were strengthened? When villification laws enacted and increased? Again I suggest that Judges, especially in a charter of rights as currently proposed, would protect free speech from government restriction not restrict it moreso.

        • cmpmal

          May 27, 2009 at 8:39 am

          Offense? Puhleese!

          You would only need to work in HR in a big company now to know that one person's offense is another's compliment is another's belly laugh for the day.

           To suggest we should have a right to protect people from being offended is completely ridiculous.  

           If you spend a lot of time getting offended, maybe you should come and live at my family's house for a few weeks for desensitisation! 🙂

           I have 4 brothers and believe you me, any preciousness I ever had I got rid of a long time ago 🙂


      • Hansel

        June 14, 2009 at 2:40 pm

        Vilification, the ability to debate and the role of respect

        And here lies one of the largest concerns about the introduction of a charter or a bill of rights.  Many ordinary Australians that I interact with are gravely concerned about the role the introduction of a bill of rights will have on protecting religious beliefs at the expense of freedom of speech and healthy debate in society.

        It seems here that there is much debate around freedom of speech.  The concept of freedom of speech appears to have been eroded by certain laws (such as vilification and anti-discrimination) – even if the desire to achieve truth comprises a core component of the discussion.  For many people wishing to robustly debate the role of religion in society (questioning of assertions of absolute truth etc) – the net feels as though it is tightening and there is increasingly a requirement to allow the religious to voice their beliefs, but seemingly to have a right for others not to question those beliefs.  The most important component of democratic and western societies is the ability to rigourously analyse, research, debate and robustly question assertions made about religion, and any other topic of concern.  This is how in the western world we have sought to develop scientific thinking and acheive the advancements we have to date.

        However, there is much tension that exists around the concept of having freedom of religion and freedom of speech.  Recent examples (eg:  the riots following the publication of a cartoon of the prophet Muhammed) highlight that Freedom of religion (and the perceived right not to be offended) is seemingly being seconded to the concepts outlined in Article 19 for Freedom of speech.  I doubt that any free press are likely to print any further images of Muhammmed, lest people become offended.

        However, being offended is a ultimately a personal choice about how to respond to a situation (deciding to be offended rather than accepting a position as a legitimate means of question).  Whilst there are social standards & laws that will ultimately influence what society deem to be, and deem not to be, acceptable within the public sphere; this erosion of free speech and the right to satirise and question religion of all types and the argument of "respecting religious beliefs" is leaving society in a dangerous position of almost voluntary self censorship.  At what point will the judiciary commence implementing human rights legislation start to impose their own personal standards of what is and isn't allowable on Australian society – rather than allowing open debate and full media coverage to acheive this aim through the exploration of ideas?

        Increasingly, one hears about the requirement to "respect another person's religious beliefs".  However, respect is a two-way concept where there  is a notion of reciprocity and implied acceptance of another's religious tenets.  However, no individual should be obligated to "respect" another's religious beleifs where those beliefs may be inconsistent with accepted social standards.  For instance – certain religions state that homosexuality is a sin and that homosexuals should therefore be punished for their sin.  This is discrimination on the grounds of lawful sexual conduct, and I should not feel obligated to "respect" that belief.  Neither should a person who holds that belief be obligated to hold the open-minded acceptance that I do on that matter if their religion is saying something contrary.  However, what each party should "recognise / acknowledge" rather than "respect", is that the other is entitled to hold their views without behaving in a manner that adversely reflects on the dignity of the homosexual person in society.  Any such legislative instrument (bill of rights included) should not be inclusive of wording requiring "respect".

        Ultimately I believe that if we are to have a  Bill of Rights introduced by the HREOC, it has the potential to significantly strengthen the ability for people to claim that they are offended and to claim that their religious beliefs aren't being sufficiently "respected" at the expense of a person wishing to engage in discourse around that belief.  Therefore, the introduction of any such legislation should seek to minimise the ability for people to claim offence at freedom of speech.  In fact, it would be preferable to have a hierarchy of importance – chief amongst those being the ability to have freedom of speech, and the ability to question religious assertions / claims without fear of judiciary applying decisions asserting Vilification or discrimination on the grounds of religion.

         For the record, I believe that the existing legislative and social mechanisms we have in place in Australia are sufficient to acheive good social justice outcomes and I don't believe a bill of rights is the answer to the questions posed.

        Article 18.

        • Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

        Article 19.

        • Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

        • Bayne MacGregor

          June 14, 2009 at 3:37 pm

          Decrease free speech? Or Increase it?

          Why do you assume a charter of rights will Decrease and not Increase Free Speech?

          Already there are anti-vilification laws in Australia. Have we even removed all previously existing Anti-Blasphemy laws?

          Whereas a charter of rights could make clear that free speech is only limited by slander and vilification etc. Not following anothers religious tenants is simple excercising your own freedom of religion and not vilifying anothers. And same with questioning it's tenants. Saying the adherants of a faith are morons would be vilifying them (presumably you wouldn't have evidence that an entire faith is made up solely of extremely low-IQ individuals), saying their cosmological explanation for the origins of the universe are inconsistent with scientific evidence is not at all doing so.

          As for the current system acieving social justice… Not Remotely!

          Not for Transsexuals coerced into sterilisation waving all reproductive rights just to get treated as ordinary citizens!

          Not for many Transsexuals forced onto a sex offender list even though they have done no sex-crime just to obtain the right medication!

          Not for Transsexuals, Gays, Lesbians and others who are refused treatment by medical staff for being that way or because of the medical staffs religious beliefs!

          Not for Intersex Infants put through substantial irreversible unneccessary genital mutilation that frequently guesses the wrong sex to make them conform to!

          Not for Transgender people who are not covered by Anti-discrimination legislation in their state (as many protections only cover some but not all transgender people) or whose coverage varies as they cross borders!

          Not for Goths and Emos who suffer discrimination because of their culture and self-expression (and isn't the self expression of ones appearance a form of free speech?).

          Not for Indiginous peoples with a panoply of injustices done to them.

          Thats just a small list of examples! The current system doesn't result in social justice, it results in much injustice with minute improvements taking decades or generations!

          So argue for a better definition of villification in a charter so that not following religious rules is clearly not vilification whereas calling adherants of that faith names or making false claims about their beliefs is vilification and inciting hatred and violence towards them remains a crime.

          But the current system has decreased free speech from what a charter could protect. And the current system does not sufficiently produce good social justice outcomes!

      • Hansel

        June 15, 2009 at 2:19 am

        Right to “vilify” Islam vs right to freedom of speech

        You question whether people have the right to "vilify" Islam.

        The major concern here is that even if there is discussion about Islam and any other religions which is not derogatory but rather factual, open debate, there are unelected persons making unaccountable decisions about what constitutes vilification.  Increasingly, there appears to be claims by certain religions (Islamists most notably) that their religion /beliefs should not be questioned / analysed or countered in any way because it either a) causes offense or b) amounts to discrimination or c) results in vilification.

        Factual and reasonable questioning of all religions is in the public and society at large's interest and should not be limited by the possibility that a person may take offence, nor by arbitary decisions by judiciary as to what constitutes vilfication even if the discussion is truthful.

        There is a very big difference between having social discussions and specifically causing harm to any religious group.

        • Bayne MacGregor

          June 15, 2009 at 3:06 am

          Judges already decide what ‘murder’ is!

          If judges already decide what 'murder' is, and let me point out for the umpteenth time that there is currently right this instant anti-vilification laws in Australia!

          And so what if some Islamists don't like their religious figures being negatively portrayed. Are you really trying to tell me other faiths have not argued the same thing? Remember the controversy over the piss-christ artwork? Christians have had their share of calling for protections against public blasphemy!

          As slander libel defemation vilification incitement and the like laws currently exist then surely what is needed is merely a clear definition of vilification in a charter rather than just the presence of the word to ensure that factual evidence-based in-context speech is protected while stirring up hatred of religious groups and the like are not protected.

          But this notion that suddenly unellected judges will be making decisions is utterly nonsensical as that is their job! They pass decisions every day on Murder, on Rape, on Assault.. and they already make decisions on what Villification is!

          If there is a problem with judges deciding what vilification is, or murder etc then our entire justice system is completely broken at it's most absolute fundamental level! As is every legal system throughout the world.

    • cmpmal

      May 27, 2009 at 8:35 am

      We have all the protection we need.

      The two pastors in Victoria had every right to say what they said – it wasn't defamatory, just truthful.

      But it's obvious that a Bill Of Rights would actually impinge on free speech. 

      If that's what a Bill Of Rights brings to us Federally, when the Victorian act has created such disasters, we DON'T want it. 

      • Bayne MacGregor

        May 27, 2009 at 2:26 pm

        Not So

        What you are saying is not so. Now I don't know the details of the frequent claims here about one specific case and I'd appreciate it if a direct link could be made on that. Especially the claim it wasn't defamatory.

        However there is no right of or protected free speech in Australia right now. The government has the legal power to make any law they so please to restrict speech any way they please. They could make all christian preaching thoroughly illegal right now if they passed legislation doing so. With no defence for anyone.

        So in fact a bill of rights would protect you from a ban on christian preaching or any other such. It would define the limits of free speech consistently… right now your speech is already limited! By several anti-villification laws, media classification laws (ie censorship) and the government can set that at whatever level or form it likes so long as it can still get elected.

        Were the approximately 60% christian and 30% atheist/agnostic proportions of Australias population to reverse, something that could happen in just a generation in theory, then the numbers christianity currently has would no longer be a defence for it and it might need such a strongly protected right.

        Australians do not have the protections they need, not even on free speech. And a Bill of Rights would give us at least some.

        • ag02

          May 31, 2009 at 4:40 am

          You realise that some of the

          You realise that some of the worst human rights violaters have had a Bill of Rights? 

          It's not a Charter or Bill that protects us, there is a good reason why Australia enjoys such freedoms without a Bill, it is the basic beliefs of the society, the separation of powers, and the freedom of the press – and a Charter or Bill of Rights does away with the separation of powers through enabling judges to 'interpret' the Bill in accordance with their personal beliefs.

          And I don't think minorities need protection when the influence of approx 2% of the population can get legislation passed.

          • Bayne MacGregor

            May 31, 2009 at 5:53 pm

            You reckon?

            What countries with operating bills of rights have been amongst the worst human rights offenders? Zimbabwe's entire legal system is defunct so you can't count it.

            Australias basic beliefs? I suggest you identify those. I'd have thought A Fair Go for All would be one but we haven't been living up to that one have we, as Homosexual and Transgender and Intersex and Aboriginal Australians can all testify. Were still struggling to give Women a fair go even though we were the second country to give them the vote!

            You'd think it'd include religious freedom wouldn't you? After all we had Chinese Temples here on the goldfields, we had Muslims here builing the Ghan railway and Jews have also contributed much to Austrlia and I would think we had enough struggle with the Anglican/Catholic divide in early colonial days. Yet much of our government sessions open with a specific religions prayer. We have Bhuddists, Shinto, Taoists, Ba'hai, Wiccans, Druids and more than I could list of other faith in this country yet when one faith gets preferential treatment then we have not got true religious freedom nor proper representation of all australians in their own government.

            What freedom of the press? D-notices, no right to protect sources… little press freedom here.

            And judges interpret the law every day. That's their job! And in fact they'd be doing it less on personal beliefs (convention or precedent? Depends on the judge already) with a charter of rights!

            And back we come to your 2% figure. Back to gays again is it? If they had it so good wouldn't they have got all this legislation passed years ago, wouldn't they have got their full equal access to a dying partner in hospital years ago? Equal ability to bequeth their estate including super etc to their partner years ago? And why can they still not have a public celebration to go with their registering their relationship?

            Marriage after all became secular when they started letting Protestants marry Catholics, or Jews, or Atheists, and when Captains of ships at sea or Judges or Public Registrars could marry people.

            Why do Intersex children get their genitals mutilated still? Why do Transgender people face a panoply of discrimination? Why are Aboriginals grossly over-represented in our prisons?

            Seriously, while you may have a bee in your bonnet about gays getting treated the same as non-gays maybe you should actually look at the problems still faced by many minorities. And imagine those things being done to you and whether you would like it!

            An already married transsexual is forced to divorce their partner and be sterilised before having many of their rights recognised in Australia. Imagine if you had a medical condition (Australian scientists have found it is at least partly genetic!) where you were treated that badly and coerced into being sterilised and made to divorce the love of your life or to face constant discrimination, likely not get a job either, not have most of your medical expesnes covered and face hostility including violence. All from something biological! And even if it weren't, even if we ignore the science for a moment, imagine if you faced that for something you could chose, like being a christian.

            Look into it. Put the shoe on the other foot.

            • ag02

              June 7, 2009 at 5:11 am

              Yep, I reckon so

              There are others but one is China which has a Bill of Rights.  Judges do interpret and that is why they shouldn't be given even more power.

              You're assuming that there is some agreement that homosexual's should have more rights.  That is your opinion, that doesn't make it right, and that is why these decision should not be made by a minority group.

              What are women missing out on?

              Yes, Aboriginals have suffered alot but they are being redressed – the right way – not by judges imposing their will on the people but by society realising as a whole – that is the way it should be.

              And do you expect these things to happen overnight?

              You said, "And in fact they'd be doing it less on personal beliefs (convention or precedent? Depends on the judge already) with a charter of rights!"


              You said, "And why can they still not have a public celebration to go with their registering their relationship"

              Lol, who is stopping them from having a public celebration?  Just because you can't call it marriage – why do they want society's approval?

              Ship's Captains cannot conduct marriages.

              You said, "Marriage after all became secular"

              So what's your point – I'm not against gay marriage on soley religious grounds, marriages are instituted and encouraged because of the benefits they provide to society, stable marriages, stable families, stable society – gay marriages don't provide that to society.  Also, aside from religious grounds, I don't think activities that are not categorically different from sexual disorders should be supported.

              When did the homosexual movement start?  Because if it was from the 60s they appear to be doing quite well, really – and since people disagree on what 'rights' people who engage in homosexual behaviour should have why shouldn't this be decided by our elected leaders as opposed to judges – who are experts in the law not experts on human rights.

              You said, "What freedom of the press? D-notices, no right to protect sources… little press freedom here."

              Have you read the paper lately?

              You said, "Why do Intersex children get their genitals mutilated still? Why do Transgender people face a panoply of discrimination? Why are Aboriginals grossly over-represented in our prisons?"

              Discrimination is not always wrong, why shouldn't Transgender people be discriminated against?  You are asking the wrong question concerning Indigenous Australians, it is not that they are over-represented in prisons, it is why do they commit more crimes?  And there are a numer of reasons for that and if you could show me how a Charter will help?

              Why haven't you mentioned the fact that men die earlier than women?  Surely that is discrimination or inequality as well?

              I don't know anything about intersex children but if you could show me the evidence.

              Isn't it interesting how you go from saying that transgender is partly genetic to being biological (why didn't you say "partly biological" instead of saying "All from something biological") – all in the space of one paragraph – and who said that just because something is partly, or even completely, genetic it is right?

              To show the problem how about you replace 'transgender' with 'paedophile' – and no, just in case you get offended, I'm not comparing the two, I'm saying that the reasoning to not discriminate against transgenders can be used to say we shouldn't discriminate against paedophiles.

              If you could also provide references or links for the examples you've used.

              • Bayne MacGregor

                June 8, 2009 at 6:58 pm

                Might doesnt make right!

                Just cause the majority might like to kick around a minority and has the power to do so doesnt make it right.

                Homosexuals and many others currently have less rights.

                Women still don't have equal pay or equal representation.

                The public celebration of registering relationships was a point of conflict between the ACT and the federal government.

                All sorts of non-religious people have at times in history been allowed to perform marriages and in some countries like japan it does include captains at sea But my point remains if ANY non-religious authority has EVER been allowed to perform a marriage.

                "So what's your point – I'm not against gay marriage on soley religious grounds, marriages are instituted and encouraged because of the benefits they provide to society, stable marriages, stable families, stable society – gay marriages don't provide that to society."

                So you make an evidence based claim? fine. Q.E.D. 

                "Also, aside from religious grounds, I don't think activities that are not categorically different from sexual disorders should be supported."

                By being relationships of informed consent they are catagorically different. Thats why homosexuality was removed from lists of sexual disorders decades ago!

                "When did the homosexual movement start?" Well the first Transgender organisation long before the term was invented was in the 1800's. The Nazis crushed the movement that had been growing in pre-war Germany (pink trinagles sat beside yellow stars in death camps!)

                "why shouldn't this be decided by our elected leaders as opposed to judges – who are experts in the law not experts on human rights"

                Elected leaders sure are not.. but what's a Human Rights Lawyer if not an expert on Human Rights?

                "Have you read the paper lately?"

                Again I say: D-notices, no right to protect sources!

                "Discrimination is not always wrong, why shouldn't Transgender people be discriminated against?"

                Because If I wear a skirt and makeup one day and pants and beard stubble the next I harm no-ones rights, cause no-one harm. If a transsexual has a measurable neurological brain difference that is best treated with surgery on their body they cause no one else harm.

                But discriminating against us causes us harm!

                "You are asking the wrong question concerning Indigenous Australians, it is not that they are over-represented in prisons, it is why do they commit more crimes?"

                Assuming they do and that racism is not present in the justice system.. the same phenomena can be found in many indiginous peoples, where depression, substance abuse and the like is a consequence of having been dispossessed, oppressed and being denied fair treatment. Not to mention the phenomena known as Internalised Oppression

                "if you could show me how a Charter will help?"

                Being treated increasingly fairly will mean a decrease in the reactions to misstreatment. Good for them, good for the rest of society too!

                "Why haven't you mentioned the fact that men die earlier than women? Surely that is discrimination or inequality as well?"

                Oh indeed. It comes from the sexist culture that men must show no weakness that results in them remaining ignorant of their own needs and risks and refusing to see doctors properly. As well as funding for breast cancer for example being far higher than that of prostate cancer even though both kill similar numbers of people.

                As for Intersex I posted other links here and i'm sure you could try googling.

                "Isn't it interesting how you go from saying that transgender is partly genetic to being biological"

                Because currently thats what the evidence says! Maybe you dont know much about science but most genetic things are biological but not everything biological is genetic.



                And you can find much more as thats just a bit of the science.

                "and who said that just because something is partly, or even completely, genetic it is right?"

                Granted. However the discrimination of coercively interfering with the reproductive rights of someone in order for them to obtain basic rights and services based on a genetic trait is a form of eugenics and by some definitions is genocide.

                And when being Transgender is not harming the rights of others, when not being discriminated against is best for the individual, when society gains nothing at all of valid benefit from that discrimination then in all ways it is ethical and right and discrimination wrong.

                "To show the problem how about you replace 'transgender' with 'paedophile' – and no, just in case you get offended, I'm not comparing the two,"

                Of course I AM offended! Yes you are comparing the two by ignoring the massive collossal and obvious key difference of a paedophiles harming others and abusing their rights! Why wouldn't I find that offensive? It's not like in the posts I've made here I haven't repeatedly made a point about INFORMED CONSENT already!

                "I'm saying that the reasoning to not discriminate against transgenders can be used to say we shouldn't discriminate against paedophiles."

                No it cannot. Firstly wheres the evidence being a paedophile is biological? Secondly one of the myriad of reasons not to discriminate against Transgender people LIKE ME is that we don't intrinsicly harm others or abuse their rights. A paedophile does intrinsicly harm others! A paedophile does intrinsicly abuse others rights!

                So other than the gross and offensive suggestion that my claim to not be discriminated against somehow means paedophiles shouldn't be, that merely by the association in the same sentence without a darn good reason why no other example were possible is offensive, what possible reason do you have that I and other transgender people should be discriminated against?

                How does it help society? And why is that help (assuming you can think of anything) so great that it validates harming me and others?

              • Bayne MacGregor

                June 20, 2009 at 3:33 pm

                Paper-Tiger Bills and Rubbish Comparisons

                You said "You realise that some of the worst human rights violaters have had a Bill of Rights?"

                But then the example you cite was China!

                Zimbabwe also has a bill of rights… but both are paper-tigers. They exist in name only not as effective instruments.

                The point of a bill of rights is whether or not it improves the current and future human rights situations in Australia and similar countries, not whether in-name-only ignored and non-functional decorative bills of rights exist unused and gathering dust in failed-states and totalitarian regimes.

                Your argument that as China has a bill that fails (cause it would never be used properly) we shouldnt bother with one is as nonsensical as saying because Iran has elections that fail (as again they are not properly done) we shouldn't have elections either!

            • gjclarke

              June 21, 2009 at 12:20 pm

              From the Centre for Public Christianity (CPX)

              CPX exists to promote the public understanding of the Christian faith, employing the best of scholarship through the best of media. We wish to make some general comments about human rights.

              It has always been a basic Christian stance to favour the rights of others above one’s own. Indeed, ‘rights-language’ probably entered our modern Western discourse through Medieval ecclesiastical reflection on the ancient Christian texts (see Nicholas Wolterstorff, Justice: Rights and Wrongs. Yale University Press, 2007).  Consequently, we support efforts to improve the rights of the vulnerable—those least able to defend or speak for themselves.

              i.               Since the pursuit of the common good usually involves competition between rights, we believe that the Christian stance is to support the rights of the least privileged and most disadvantaged over those of the most privileged and least disadvantaged.

              ii.              We do not believe that the possible abuse of an instrument of rights is a sufficient argument to oppose such an instrument. We reject stances on this issue that are born of fear (“perfect love casts out fear”).

              iii.            While Australian society may choose to enshrine particular rights that are inconsistent with historic Christianity—gay ‘marriage’ rights, for example—we do not believe this should discourage Christians from supporting the broader project of protecting the rights of the vulnerable. The Centre for Public Christianity rejects the idea that Christians have a duty to legislate Christian morality. In a secular society, the duties of the Christian community are to persuade others of biblical truth and serve others in Christ’s name.

              iv.            We are of the view that research is as yet ambiguous on the actual outcomes of bills or charters of rights, and that it is not possible at this stage to mount a persuasive evidence-based argument for the general effectiveness or ineffectiveness of rights instruments.

              v.              We would be opposed to any particular rights that jeopardise freedom of religion (including, particularly, freedom of religious expression).


  10. samir

    May 26, 2009 at 11:20 pm

    Bill of Rights can help

    The ways Australia could better protect Human Rights in my view would be as follows:

    Australia must have a bill of rights that includes

    ·         breach of privacy
    ·         defamatory content
    ·         profane content
    ·         racial and religious hatred/vilification

    Bill of Right Charter that includes and define clearly, unfairly treated and discriminated against as well as blasphemy against any religion in a play and or in media, in writing or in group discussion other then within the religion (faith) own people.

    As religion is the most used ground for racial discriminations. By Governments and Media, this is presently not covered by States and Federal legislations, even though if there are legislations they are vague. 

     An Advisory Charter clearly stating the principles of Human Rights which should be protected through representations by Legal Aid. There are many instances where human rights are not protected as well as they should be; or where people are not even aware of the rights they have, let alone what to do if their rights are under threat.

    Australia is signatory to a number of international human rights treaties and declarations, but refuses to introduce legislation, for Courts to accept the treaties. A committee to review all new legislation as well as any old legislation brought to their attention for compliance with the principles of the charter. Such a committee should be made up of Parliamentarians, retired Judges, High Court Judges, human-rights experts and academics, understanding of Human Rights Principles, understanding of legislation and understanding of the legislative process.

    Such a committee is able to make proposals to amend new legislation.

     That Parliament should be required to refuse to do if such a committee declares or reports that the proposed legislation is not consistent with international human rights.

    The report should be sent back to the committee for re adjustment also parliament should not be able to introduce new human right legislation due to international political pressure, without the advice of the committee.

     Australia needs a new national law to protect and promote human rights, the reason FOR THIS IS MY OWN EXPERIENCE NOT BEEN ABLE TO EITHER DEFEND MY SELF OR OBTAIN JUSTICE DUE TO THE LACK OF LEGISLATIONS.

     Australia Should Have a Statutory Bill or Charter of Rights same as that of those existing in the UK, USA, Victoria and the ACT but more defined.  

    I agree with Father Frank Brennan, he said;-"On a separate note, if we were to live by the motto, existent in numerous religions, faiths and belief systems in Australia, 'do unto others as you'd have them do to you' then we'd probably be part way there. But what should we do when people fail to respect the human rights of others? How do we in fact encourage people to respect, protect and promote human rights? How do we make sure that the Government is accountable when human rights are violated? What would you want to be able to do if you felt that your rights had been infringed by the Government or others? Doing unto others as you'd have them do to you didn't get Cornelia Rau very far, nor did it help Haneef, Hicks or others. Do you think that a Bill of Rights would have helped?" I do. 


      June 18, 2009 at 2:41 am

      charter of rights

      It is my opininion that Australians do not need a limiting bill of rights.

      Under the Magna Carter we have fundamental rights that neither the courts nor the government can take away from us.

      Under our constitution we also have fundamental rights that the government and the courts cannot take away.

      By introducing a Bill of rights we run the risk of limiting what we already have with the  courts having the power to place amendments and restrictions depending on the current trends within our society.

      We are a nation of diverse peoples with many differences that can, and mostly do, live compatably side by side.

      It is important that we can have, for example, faith based education and be able, at present, to place restrictions on teachers and staff to being of "like minded" faith and belief system.  A Charter of Rights will now longer allow faith based schools to hire in this positive discriminatory way.

      A Charter of Rights has the potential to restrict, at any time in the future, where and what one would be allowed to worship and believe.  Our constitution currently protects us and allows us to exercise our right to believe and worship as we want.

      Our current consitition can only be changed by referendum.  Neither the Government nor the courts has the right to make changes in conflict with OUR CONSTITUTION.

      We do not want to go the way of America.  They have very regimented and limited ways in which to make changes to their "Bill of Rights".  The courts are the ones that make the amendments.  Unless you have the money to get your interest into and through their court system what hope would you have.

      We need to protect what we already have and not have any further limitations placed upon us.

      The breaches to people's human rights in this country have only come about because of officious public servants over stepping their boundaries.  This will happen under a Charter or Bill.  Nothing will stop humans making mistakes.  When found out the mistakes have been addressed and rectified through our court system.

      We do not need to become a "nanny state" having all our actions dictated to by those who are powerful enough to pay for changes to be made that will benefit themselves.

      I am a practicing christian and I try to live by the direction to "do unto others as I would have them do unto me".  But it is the right of every human being to exercise their own free will to live as they choose.  God gave us all a free will it is not my place to take it away, and UNLESS the people of this nation's free will breaks the law, let us all live in peace.

      • Bayne MacGregor

        June 19, 2009 at 4:16 am

        More is less? Is Up really Down then?

        You say that more protected rights is less.

        You say protected religious freedom will be lack of it. 

        You cite America as a bad example, a country with the highest degree of religious observence of the developed world! Where there are still faith-based schools which you fear rights would eliminate. How can that be?

        "The breaches to people's human rights in this country have only come about because of officious public servants over stepping their boundaries."

        Legislation specifically ensuring inequality for many peoples is not about public servants. I have listed plenty of examples before. I'd like you to consider them. Yes public-service breaches of rights do occur but they are not at all the only human rights breaches in Australia, not by a wide margin.

  11. Fr Frank Brennan

    May 27, 2009 at 11:37 pm

    Suspending rights?

    Reading the posts this week, two questions spring to mind. The first question relates to the comment made about the suspension of the Racial Discrimination Act in relation to the Northern Territory intervention. Are there any circumstances in which it might be appropriate for the government to suspend some human rights? For example, in times war or other public emergency, should the government be able to say that some of the rights included in a charter do not apply?

    The second question relates to the point made that we hold our government accountable through free elections and a free press. Are existing institutions like elections and a free press sufficient to protect rights? Would the ability to bring an action against the government in court, arguing a breach of human rights, result in too much litigation? Or would it provide a much needed check on government action?

    Father Frank Brennan
    National Human Rights Consultation Committee

    • Bayne MacGregor

      May 28, 2009 at 2:48 pm

      Are other countries courts clogged with rights cases?

      Many suggest our courts will clog up with rights cases, and that lawyers will grow fat on such a bill or charter where courts are involved.

      But that should easilly be anwered by looking at the myriad countries with bills and charters of rights. Are their courts clogged up with rights cases? Do they have lots of wealthy lawyers finding rights cases lucrative? Or is this notion a piece of common non-sense, something many would assume to be true but that in actuality doesn't turn out that way?


    • Hansel

      June 15, 2009 at 1:59 am

      Yes – suspension is sometimes needed

      The suspension of Anti-Discrimination provisions is sometimes needed.  In a multi-cultural society as Australia there are, and will increasingly be (look to US and UK for the increasing social problems there) socio-ethnic groups who may fall foul of the law or accepted social standards.  Being able to name the problem, and then deal with that particular group by it's very nature requires the group to be named and social pressure being brought to bear to move towards accepted behaviours.

       The NT intervention is just one example where the broader good of the Aboriginal communities there are served by a specific intervention to address some of the endemic problems within those rural and remote communities.  An attempt to break cycles of abuse and to get professional assistance into those communities is very much needed in the interests of the children.

      Another example is the problem of black gun & knife crime in the UK, particularly amongst teens.  For a long time there, the media were fearful of naming the issue as being this in case it resulted in descending the issue into a race-related debate, rather than a debate about the issue of crime.  It finally took a black community elder to speak and to name the issue as being a black community concern to bring the issue from being that which is unspoken, to that which can be openly debated and acted upon.  As a result of the community elder's actions, massive peaceful vigils were organised by the community to rally for awareness, and action on the issue.

      Suspension of human rights for the purposes of positive action (ie for the greater good) should be allowable, in exceptional circumstances.

      It would be naive to think that human rights breaches won't be perpetrated in times of war.  As history demonstrates, enemies are less concerned about the protection of human rights than winning the war.  Killing people is not a nice concept for anyone.  But if another country were intent on invading Australia with the intent of taking away the democracy, values and other hard-won rights that our forefathers gave their lives for, then I and many others would be more concerned with defeating the enemy (including killing if necessary) than sitting down to a legal debate & a cup of tea to debate ad nauseum as to whether Human Rights legislation would be breached when decisive and immediate action is required.  

      Therefore I do believe that there will be occassions where the concepts of Human Rights will be breached through necessity.  Thus, if Human rights legislation is enacted, there should be provision to allow for exceptions.  Likewise, there should be no power of veto for a committee (whether HREOC or other) to go against the will of parliament acting as elected officials on behalf of their constitutents.

      • Bayne MacGregor

        June 15, 2009 at 3:18 am

        Exactly how is it needed in those cases?

        Exactly what way was it utterly neccessary to suspend any human rights in the Intervention? (last I heard there's plenty of child abuse in small white towns too)

        As for the UK example suspension of rights was not neccessary there.

        And there is heaps of Human Rights Law Internationally regarding War. It allows us to wage war without comitting war-crimes but not to torture prisoners or slaughter civillians with weapons of mass destruction. So what human rights need suspension in times of war?

        So if we can wage war fine without suspending rights, if the UK could work on the knife issue without suspending rights then exactly what use and need is there for suspending rights?

        You suggest that a community may have greater problems within it.. who wouldn't want those dealt with? They can be dealt with without condemning an entire group of people just because they have a higher rate of a problem within that community!

        We can surely deal with the fact that more men commit rape than women commit rape without condemning all men as rapists or ignoring that much smaller numbers of women do still commit acts of rape. So we could also do the same with any ethnic group or any other situation!

        All those things are possible without abusing any human rights.

  12. chienoir

    June 2, 2009 at 12:35 am

    YES-we need a charter of rights like we need fresh air

    -without it we can't function sustainably, we become comatose, we die

    A charter of rights sets a standard for all people to live and thrive in peace and harmony, lawfully respecting each other's diversity and differences, and taking responsibility for all to reach their full potential.

    Nationally, a charter of rights provides a tangible and enforceable code for civilised and co-operative behaviour for the collective social, economic and cultural good.

    Internationally, a charter of rights, that recognises and references all the international charters, UN declarations and conventions, validates Australia's voice and influence in world affairs. Without a national charter, Australia is an outside in global discussions on any subject – an immature nation that does not understand the "terms of engagement". We will remain an outsider until we demonstrate that we practice at home, according to a lawful standard, how we expect to be treated in global affairs.

  13. Pablo

    June 2, 2009 at 1:45 am

    constitutional convention time
    to be lasting and meaningful, Human Rights need to be written into (or attached to) the constitution. An act can be changed or discarded far too easily.  This is good time to look at a wholesale renewal of our constitution, which is well past its use-by-date. We can then enshrine rights, dispense with the monarchy and reconsider the cumbersome three tiered system of government.    It would be time consuming but well worthwhile and we could start aspiring to real democracy.

    • Bayne MacGregor

      June 2, 2009 at 7:27 am

      Trial step?

      Canada went with a charter and placed it within the constitution afterwards when it proved good for the country.

       We could do the same and likely a lot easier than a straight reform of our constitution now.

       But our consitution does desperately need reform. To remove the racism built into it from the outset at the least.

  14. Fr Frank Brennan

    June 4, 2009 at 2:24 am

    Introducing legal facilitators

    Today, I would like to introduce a couple of special guests to our online Forum. Our guests are Professor George Williams and Professor Tom Campbell, both of whom have taken a keen interest in the debate about human rights in Australia in recent years. We hope that George and Tom will be able to clarify some of the legal issues that have been raised on this Forum, and offer some insights into the various models of rights protection that have been proposed.

    George Williams is the Anthony Mason Professor of Law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales. He has written and edited many books, including A Charter of Rights for Australia (2007) and The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004). In 2005, he chaired the Victorian Human Rights Consultation Committee that lead to the enactment of the Victorian Charter of Human Rights and Responsibilities. George Williams will be supported by Phil Lynch, Director, Human Rights Law Resource Centre.

    Tom Campbell is Professor of Philosophy in the Centre for Applied Philosophy and Public Ethics at the Charles Sturt University, and was Dean of the Law Faculty at the ANU from 1994 to 1997. He has written and edited many books, including Protecting Rights Without a Bill of Rights (2006) and Sceptical Essays on Human Rights (2001). He is currently working under an ARC Discovery Grant on an Australian alternative to Bills of Rights. Tom Campbell will be supported by Nicholas Barry, Research Fellow, Centre for Applied Philosophy and Public Ethics & Lecturer in Politics, School of Social Sciences and Liberal Studies, Charles Sturt University.

    Father Frank Brennan
    National Human Rights Consultation Committee

    • olgabodrova

      June 4, 2009 at 2:31 am

      useful link

      Here is the link to Prof Williams' latest opinion piece in the Sydney Morning Herald, published last Tuesday, which has direct relevance to this debate

      "Wisdom of politicians is frail shield for our rights" (2 June 2009)

      "[…] Australia is the only democratic nation without a national charter or bill of rights. This means our human rights are uniquely dependent on the wisdom and good sense of those we elect.

      Unfortunately, the record shows that this can be a frail shield, especially when any one party controls both parliamentary houses. Without a charter of rights, our freedoms can be ignored or taken away far too easily.

      While the legal system has many checks and balances, there is a gaping hole when it comes to our basic freedoms. It is time that we fixed this. We should adopt a national charter of rights to improve how Parliament operates so laws are made and basic services delivered in a way that better reflects the human rights of everyone."

    • James South

      June 15, 2009 at 11:26 am

      Should the courts be able to give unreasonable interpretations?

      In the UK, the House of Lords has determined that the interpretative obligation imposed by 3(1) of the Human Rights Act 1998 (UK) empowers the courts to give interpretations of legislation (including future laws) that are not reasonably open (Ghaidan v Godin-Mendoza [2004] 2 AC 557, [44] (Lord Steyn)). Given that some commentators have advocated the introduction of a federal Charter modelled on the UK's Human Rights Act, I would be grateful if Professors Williams and Campbell would respond to the following three questions: 

      1) If it is decided to introduce a federal Charter, should courts applying the interpretative obligation under that Charter have the power to give interpretations of legislation that are not reasonably open?

      2) If so, should the Charter expressly provide that power, or alternatively should the courts have the discretion to decide whether they have that power?

      3) Are there any constitutional impediments to the enactment of federal legislation (or for that matter State legislation) requiring or empowering the courts to give interpretations of future laws that are not reasonably open?

      With respect to question 3, it seems to me there are a number of potential constitutional impediments. In contrast with the situation in the UK, the doctrine of implied repeal has not been modified in Australia. The Federal Parliament and all of the State Parliaments have the legislative power to impliedly repeal or amend earlier laws. The Commonwealth and State Constitutions provide that power. Any abrogation of that power would require an amendment of the involved Constitution. Covering clause 5 of the Commonwealth of Australia Constitution Act states that all laws made by the Parliament of the Commonwealth under the Constitution "shall be binding on the courts". Section 118 of the Constitution requires all Australian courts to give "full faith and credit" to State laws (if valid) in cases where they are the applicable law. In the circumstances, it seems doubtful that the Federal Parliament or any State Parliament possesses the power to require or empower the courts to give interpretations of future laws that are not reasonably open.

      • George Williams

        June 16, 2009 at 2:48 am

        Thanks for your questions James

        Hi James

        Thanks for your questions. Answers below:

        1) If it is decided to introduce a federal Charter, should courts applying the interpretative obligation under that Charter have the power to give interpretations of legislation that are not reasonably open?

        No. This is a key reason why I favour changing the interpretive clause from that in the UK so that the clause has a new qualification requiring consistency in interpretation with parliamentary purpose. This change had been adopted in both the ACT and Victorian charters, meaning that the role of the courts there is significantly more constrained than is the case under the UK Act.

        2) If so, should the Charter expressly provide that power, or alternatively should the courts have the discretion to decide whether they have that power?


        3) Are there any constitutional impediments to the enactment of federal legislation (or for that matter State legislation) requiring or empowering the courts to give interpretations of future laws that are not reasonably open?

        Yes, there could well be as former High Court judge McHugh states in his speech at:

        This is another reason why I favour the change noted in 1, which McHugh finds would avoid any such problems.


        Professor George Williams
        University of New South Wales

        • James South

          June 16, 2009 at 7:43 am

          Should unreasonable interpretations be impermissible?

          Thanks George for your considered response.

          In Kracke v Mental Health Review Board [2009] VCAT 646 [215], the President of the Victorian Civil and Administrative Tribunal concluded that the reference to "purpose" in s 32(1) of the Victorian Charter "was intended to put into s 32(1) the approach to s 3(1) adopted by the House of Lords in Ghaidan".

          Based on that conclusion, he asserted that "[s]ection 32(1) of the Charter and s 3(1) of the Human Rights Act express the same special interpretative obligation and are of equal force and effect."

          If that assertion is correct, Victorian courts applying s 32(1) are permitted to give interpretations that are not reasonably open.

          Do you agree that it would therefore be advisable for any federal Charter to include a provision clarifying that unreasonable interpretations are not permitted?

  15. jupiter

    June 5, 2009 at 10:29 am

    No to Bill of Rights

    I wish to object to the introduction of a Bill of Rightds on the following grounds:

    1. It transfers powers from elected representatives to unelected lawyers.

    2. It delivers power to vested interest groups who have failed to win their case with voters.

    3. It implies Governments rights to dispense freedoms taken for granted by Christians.

    4. It transforms "rights" into a tool for conflict through unregulated assertion.

    5. The need for enshrinement of a Human Rights clause in Australian Constitutional law has not been demonstrated.

    • Bayne MacGregor

      June 5, 2009 at 11:49 am

      Could you clarify your reasons?

      "1. It transfers powers from elected representatives to unelected lawyers."

      But only those related to rights.. so why is that a bad thing? If you were in the minority and the majority could do whatever they wanted to you wouldn't you like a limit on that so while they still got to decide they could only go so far?

      "2. It delivers power to vested interest groups who have failed to win their case with voters."

      But not power over others, just the power not to be misstreated or made 2nd class citizens. It wont make them an all-powerful oligarchy or overthrow democracy, just put a limit to ensure everyone is treated as equals. What's wrong with equality and fairness? Isn't A Fair Go one of Australias Ideals?

      "3. It implies Governments rights to dispense freedoms taken for granted by Christians."

      But how can fairness be unfair? Whats so wrong about letting non-christians be treated just as fairly, no more and no less, as Christians?

      "4. It transforms "rights" into a tool for conflict through unregulated assertion."

      How so?

      "5. The need for enshrinement of a Human Rights clause in Australian Constitutional law has not been demonstrated."

      The findings against us in the Internaitional Human Rights courts isn't enough of a need? Or all the issues I've raised in my posts?

      And do you have the same objections towards a Charter rather than a constituional bbill of rights? As the government has already said it wont accept a bill anyway but might a charter.

  16. lisaballinger27

    June 7, 2009 at 8:06 am

    No Statutory Bill or Charter Of Rights
    We have already enjoyed an enormous amount of freedom and liberty in Australia for the past 200 years.  The current system of protecting human rights through common law, elected officials and freedom of speech has served our country well.  We do not need to head down the path of other countries and adopt a charter of rights or statutory bill.  Such bills/charters are not always been effective in administering human rights protection.  In 1936, Soviet Union had a bill of rights protecting the rights of its citizens but it did not stop Stalin from killing his own people.  While we have a system in place to successfully administer human rights protection we should retain the current system.

    • Carkeys

      June 9, 2009 at 7:13 am

      One of the lucky ones

      You said the system works fine, and that we already have an enormous amount of freedom and liberty – by We, I presume you do not mean the Aboriginal people in remote communities who are being discriminated on a daily basis – including by bus drivers and shop owners, the homeless people who are unable to access basic services, the women who are denied equal work and pay opportunities, the prisoners in remand centre who have been denied the right to vote even when they have not been convicted of any crimes, the non-English speakers who were denied proper health services and care in hospitals because they could not access an interpreters, and the many more other people out there who have not enjoyed as much freedom and liberty as you have?

      Many Australians enjoy an enormous amount of freedom and liberty. For us, the lucky ones, lets help spread these freedoms and liberties to those of us who are not so lucky. Sure, Australia has a common law system that has kind of worked for many people, but surely, a nation as advance as ours can do better than just providing ‘kind of okay’ human rights protection.

      • Bayne MacGregor

        June 15, 2009 at 3:46 am

        Some without need think there is no need for others!

        Many of those criticising protecting human rights are not those whose rights are being abused!

        And some of the rest are arguing they should be free to abuse the rights of others!

        Inconvenience to the lucky or the powerful, or some being denied the power to trample over others is a small price to pay for fairness equality and justice.

        Those who think there is no need for human rights protections should ask themselves..

        Would you be happy having to be sterlised in order to be properly recognised and treated like Transsexuals have to? Being forced into giving up the chance to have children just to live with less discrimination?

        Would you be happy if someone forced a sex change on you with you having no say over it at all? As this happens to Intersex Infants, despite often getting it wrong causing lifelong harm.

        Those are just two examples. Those who say there is no need are ignorant of serious issues and need to know about them before saying there is no need just because in their lives they haven't had a need and fear they may face some minor inconvenience from a charter if any doesn't mean other lives aren't ruined or diminished or burdened unjustly for the lack of one.

        And those who argue that human rights protections are a danger because they will force them to treat others fairly as equals? What total failure of basic logic is required for that line of thinking to seem acceptable even to themselves?

        A Fair Go For All. Thats all a charter or bill of rights means. What is wrong with Fairness?

        • Skepticus

          June 15, 2009 at 10:16 am

          Typical illogical claim that people’s “rights” are being abused

          Bayne offers us the classic that is repeated ad nauseum:

          Many of those criticising protecting human rights are not those whose rights are being abused!

          And some of the rest are arguing they should be free to abuse the rights of others!

          Bayne, how can rights be abused that don't even exist? Isn't that the supposed whole point of this excercise? To actually get some rights?

          If we already actually have "rights" how can they be being "abused"? And if our existing rights are being abused, what is the use of getting more?

          • Bayne MacGregor

            June 15, 2009 at 5:11 pm

            Logic, not illogic

            The rights exist, but are not protected.

            They exist as recognised principals.

            Australia specifically recognised those principals as it was one of the authors as well as one of the signitories of the Un Decleration on Universal Human Rights.

            Thus they exist but without protection by the law.

            The point of this excercise is to get protection for the rights which have already been acknowledged as existing by Australia 60 years ago!

            And Australia repeatedly since then further recognised them in further signing and ratifying further Human Rights declerations and conventions etc.

            I hope that clears it up for you.

            • Skepticus

              June 16, 2009 at 2:40 am

              There is no Reason why Rights must be judicially-reviewable LAWS

              Bayne, you have actually hit on a very important aspect of this debate, which has been silenced by the hegemonic academic elite. You say these "rights" that are allegedly being abused exist only "as recognised principles". But recognised by whom? And what is your evidence of this recognition? And if they are so recognised, where are they?
              Are you assuming that human rights do not have to be legal instruments, that human rights can equally exist as broad principles, whose role in our governance might assume other forms, rather than a legal Charter? If so, I agree with you. I would like to see a Charter drawn up by the Australian people before being put to a plebiscite.
              Now, I am sure you agree that the world and Australia has changed a lot since 1948. Also, remember the Australian people had no input into the UN Declaration, which by the way has never had any 'legal' significance, and was not supposed to. It would be like if the UNGA passed the "Declaration on How Much Lovelier Spring Days are than Winter days".
              This Charter would then guide the Senate Review process, but would not be a normal legal bill or statute.



              • Bayne MacGregor

                June 16, 2009 at 3:34 am

                There are plenty!

                The reason why these principles require specific protection is because they are abused often.

                They have been recognised as the standard of justice between a government and it's people (even down to a minority of one) internationally by successive governments of Australia. And Australia played a part in it's inception. The Australian people had a say in its drafting and Australia remaining a signatory to it the same way they do in every other foreign-policy issue, by voting representatives to make those decisions.

                For 60 years we have not withdrawn from the decleration but continued to sign further such declerations and conventions each one reinforcing the recognition of these principles.

                And if the current system of representative democracy is not sufficient to serve the Australian people… what is? I would say representative deomcracy constrained by the safetynet of protected human rights.

                It wouldn't need to be protected under law were humans perfect, voters infallible and human rights never abused.

                But they are abused so they are needed. Each single human rights abuse is a reason protections of rights are needed.

                Right now the strongest option available is an advisary 'charter of rights'. Which would ensure new laws are compatable with rights and old incompatable laws are reviewed. Still relying not on Judges but Politicians. And it would ensure rights are protected much more than now.

                What is so bad unfair or harmful with that?

  17. Modernthinker

    June 8, 2009 at 2:37 pm

    Touchy situation.

    Laws have guidelines. Rights do not. For example if you have been discrimnated against and the government believes you do not meet the criteria for anti-discrimnation laws then no justice can come of it. 

     Rights have no guidelines. If they set out that as a citizen of this country you have unalienable rights no law can overide that. 

     For the people who are vilifying minorities please have a moment to ask yourself "What if I were in their situation? What if my child was?"

    Would you be wanting your rights as a citizen of this country to be expressed in everyway and acknoledged? What if you had none? What if you were denied marriage based on sexual orientation? And then told that you had no rights to try and achieve justice for that?

    Majorities are supposed to look after the wellbeing of minorities.

    In my situation I am denied this human right:

     Article 7 of the Universal Declaration of Human Rights:

     "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

     I am denied this right because of the Marriage Act 1961 and the Amendmant of 2004 – wich reads:

     "Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
    Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia."

     Why should I be denied marriage based on something I believe I cannot control? Religious counter arguments hold no power in this debate. Relgion holds no grounds in government. And it should not because it gives a level of bias towards situations and inhibits growth as a society. It has done so for eons.

     If Australia were to get any type of recogntion regarding rights then I believe this would help future oppurtunities for equality (not just for my situation).

     A Bill of Rights would be hard to forge but it has been done in the past. Several societies today have, not to mention the Magna Carter and the Charter of Liberties in the Thirteenth Century.

     Such a bill would pinpoint several inequalities in Australia. 

     Also, I keep reading arguments centered on a shift of power towards unelected Lawyers. Yes, this would be undemocratic. NO society in this modern world is truely democratic. I believe a shift of power would be a wise decision because Lawyers have a better understanding of society and are more intelligent in general than Politicians. 

  18. Carkeys

    June 9, 2009 at 6:37 am

    We need better human rights protection

    I support the development of an effective and practical human rights instrument in Australia, largely because I think human rights are not that well protected in Australia, when Australia is amongst the very few countries in the world that can really afford to provide comprehensive human rights protection.

    I would like to see an instrument that can hold the authorities accountable for the decisions they make -given the huge powers they hold in and over our society. They are also the ones with the primary responsibility to protect human rights. I would like to see an instrument that can effectively counter popular political agendas so that discriminatory legislations such as Temporary Protection Visa, mandatory detention and the Northern Territory Intervention would never happen again. I think the most important feature a human rights mechanism can offer is to protect the rights of the minority against the demands of the majority, especially when the popular demand is driven by moral panic and hidden political interests.

    I would also like to see a human rights instrument that can educate all of us on human rights, including what our rights are, how to observe human rights, what constitutes as a breach of rights, and how to resolve breaches. I believe education can help foster a human rights cultural, so that one day, people would actually take it seriously when someone complains about a human rights breach. From current experience, most people only seem concerned about human rights when they think their own rights have been breached. The predominant thinking seems to be focused on ‘my rights’ as opposed to ‘the rights of everyone’. I think educating everyone about our rights as well as our responsibility to human rights will have a positive impact on social attitudes and behaviours.

    The consultation asked about responsibility – I think we all have a role to play in protecting human rights, but some have more responsibilities and abilities than others. For example, policy makers make decisions on laws and policy, which impact on our society as a whole. Ordinary citizens, on the other hand, are unlikely to make decisions that can effect more than a handful of people. Given the policy makers possess so much more social and political powers than the everyday citizens, it would make sense that policy makers have a lot more responsibilities to observe the protection of human rights than the everyday citizen. I think our level of social and political powers is indicative of the extent of our responsibility to observe the protection of human rights. And so, service providers should observe the rights of those who access their services; employers should observe the rights of their employees; police should observe the rights of those who come into contact with them, be they a concerned citizen or a convicted criminal, and so on. Having said that, I also think even the most dispossessed persons can respect the inherent rights of another person. They may not be able to protect it, but they can still do their best to not violate it.

    There has been a lot of debate in the media about whether judges or politicians should be charged with protecting our human rights – I don’t understand why it has to be one or the other, can’t we have an independent body that performs the watchdog/advisory function? I would have thought something akin to the Australian Human Rights Commission would be the perfect mechanism, given they are human rights experts, they are independent and their organisation interest is on the protection and promotion of human rights. A properly legislated independent body to keep the politicians, the judges and any other public authorities in line would be most useful.

    I would be greatly disappointed if after spending all these efforts and resources, nothing practical and meaningful comes out of the consultation. I think many Australians have been waiting for proper human rights protections for a long time, and many other countries are waiting for a country like Australia to take the lead in advancing human rights and our common humanity.

  19. Russell Stuart

    June 10, 2009 at 9:19 am

    A question: what form will this Bill of Right take?
    I have a few queries here.  The first one is: when does a Bill of Rights takes effect?  In other words, if a new law clashes with the Bill of Rights, what takes precedence?  My assumption is the Bill of Rights trumps other laws.  It would if it is part of the constitution, I guess.

    A second question is what or who does the Bill of Rights effect?  Reading some of the posts here it seems Victoria's Bill of Rights may have been used to censor a pastor's comments on Islam.  That seems back to front to me.  A Bill of Rights should give me rights, not take them away.  The job of taking them away belongs to the elected government.  I can unelect them if I don't like what they have done.  I can't unelect a Bill of Rights, so it should not constrain what I can do.  And thus the question: who or what does it constrain.  I am hoping it constrains our government, not its citizens.

    Now that I ponder it, I am not entirely certain how our system works.  (A sad admission, I know.)  I am guessing the only way the government can do things is by passing or amending laws.  In other words, the government can't build a road, or jail someone, employ someone without first passing a bill or law that says they are going to do that.  Assuming that is so, if a Bill of Rights took the form of a series of statements like "the government can pass no bill/law such that …", I would hope the Bill of Rights would only constraint what the government can do to me, not effect how I personally interact with others.  In particular no one can hall me before a judge and say "he broke the Bill of Rights – jail him!", as presumably happened to that pastor.

    The next question that arises is what to put in a Bill of Rights.  I see all sorts of things being proposed here, many of which are going to cause spirited debate.  To have a chance of getting up I think a Bill of Rights has to be fairly minimalist.  There is only one thing I think is essential to enshrine in our constitution, it is the one thing we all share, and hopefully the one thing most will be convinced should be there.  And that is our thriving democracy.  Having a perfect democracy where all citizens are equally unhappy with the laws they have to abide by is probably as good as it gets.  "Do unto others as you would have them do unto you" would seem to naturally flow from such a system.  However our constitution does not do this.  One thing that I am certain is required in a healthy democracy is free political speech, but it isn't explicitly guaranteed by our constitution.  Given when it was drafted it probably omits other rights too.  It would be interesting to see someone who is familiar with these things make a list of possible omissions.

    Equally, if the goal is to codify our form of democracy, there are some things discussed here that I don't believe belong in a Bill of Rights.  For example, how we treat foreigners or asylum seekers.  Obviously there is a moral obligation to treat them as equals, and I support laws to that effect.  However, foreigners are by definition not part of our democracy.  In times of war it may even be necessary to treat them with downright suspicion.  Nor does a definition of absolute privacy belong in there.  It is important that everyone is entitled to similar amounts of privacy, as a person can be persecuted by putting on public display what would normally be considered private.  However, some here argue for an absolute definition of what is private.  It isn't the absolute definition that is important – it is the equality that matters.  To put it another way – everything will be fine if we know at least as much about the people who have power over us as they do about us.  Mind you, I suspect this isn't so now.

    There is one other thing I would like explained.  I see people who sound like they should know argue against Bill of Rights because it will put more power into the hands of Judges.  But they don't go beyond that argument, and there is an obvious flaw in it.  We already have a constitution and that gives powers to Judges.  At lot of power.  Yet I don't see any of these people saying the constitution as a whole is a bad thing, or that we should get rid of it.  So obviously giving power to Judges isn't always bad.  Quite the reverse – it is necessary.  But apparently any power a Bill of Rights gives Judges is automatically bad.  Why?  What is the essential difference between any laws we might put in Bill of Rights, and the laws that are already in the constitution?

    • George Williams

      June 11, 2009 at 2:49 am

      Bill of Rights

      A Bill of Rights takes effect on the date set by Parliament, and would affect all laws passed both before and after it comes into operation.

      However, a later law passed by Parliament could override or even repeal a statutory bill or charter of rights. In this, Parliament would keep the final say. It would be very hard to do this though without community support.

      The Constitution as the ultimate foundation of the legal system trumps all other laws and has precedence in our system of government.

      • Russell Stuart

        June 11, 2009 at 9:41 am

        Existing Rights?
        Thanks for the answer.

        After thinking about the question posed ("Should Australia Have a Statutory Bill or Charter of Rights?") I started wondering what rights we already have. I found a veritable shopping list of them here:

        Many of the rights discussed here are on that list, which sort of implies we have them now. They apparently come from lots of different sources – among them the constitution, acts of federal and state parliaments, and international treaties.

        I assume the rights in the constitution are pretty iron clad, but there aren't many of them.  The linked page mentions just three: trial by jury, religious freedom, and property rights. As for the rest, I presume the argument is we would be better off rolling up the ones we consider important into a Bill of Rights.  What is different about having them in a Bill of Rights, as opposed to how they are expressed now?

        A related question is what rights do we have now that are protected at least as strongly as they would be in a Bill of Rights.  My guess it would be just those in the constitution.  Is that correct?  So given the sorts of rights being discussed here, which of those already exist in the constitution beyond the three mentioned above?

      • Skepticus

        June 15, 2009 at 10:24 am

        External Affairs power undermines our democratic Constitution

        Actually George, the claim that our written Constitution is trumps is not really true. Ever since The Tasmanian Dams case, the judiciary – particularly those judges who thinks the citizenry is a bit on the nose compared to UN committees – has increasingly allowed the federal government to pass legislation that the Constitution itself does not authorise.


        What they do is hold up some international treaty or convention, and what do you know, the HC will let the feds ram it straight through.

  20. Skepticus

    June 15, 2009 at 10:05 am

    Why are Rights Activists so slavish to UN Conventions?

    I have become very cynical about Charter of Human Rights Luvvies and their obssessions with UN instruments.

    These various conventions simply do not have legitimacy among Australian citizens. Unlike our Constitution, Aussie men and women do not vote for all these Conventions, nor do we decide what goes into them.

    The really rabid legal academic supporters can hardly contain themselves at the possibility of instruments like the ICCPR and IECSR basically being copy and pasted and renamed The AUSTRALIAN Charter of Human Rights.

    Why? Because, as they even admit in the law journals that none of us citizens reads, any Charter will be deliberately written so that judges can use precedent from any court in any country of the world, so long as it has some connection to the ever opaque notion of "human rights".

    Judges will even be able to decide cases, based on mere committees. The UN does not even have any citizens!

    THIS is how ordinary citizens get pushed out of our democracy. They push us out and defer to their Luvvie UN mates in Geneva and New York. 

    This scandal is one of the biggest swindles in Australian history, but WHAT can we do about as the government has no intention of putting this Charter to a vote! 

    • Bayne MacGregor

      June 15, 2009 at 5:17 pm

      Your condemning representative democracy

      So you dont like that the government signs conventions and declerations (and participates in authoring them) without referenda on each?

      But the legislatures pass tons of legislation all the time without referenda either. Thats the nature of representative democracy.

      And the limit on abuses of power in representative democracy against ordinary citizens?

      Why those are those rights-thingies you seem to have a problem with.

      • Brett Paatsch

        June 15, 2009 at 6:02 pm

        Psst – its declAration not declEration
        PS: But you are making a lot of sense.

        • Bayne MacGregor

          June 16, 2009 at 3:51 am


          My disability, Chronic Fatigue Syndrome, effects memory and thus my spelling, it also can mess with my typing.

          I do my best to ensure my posts are as clear as possible but mistakes will happen.

          I suffered several discriminations because of bias against my disability over the years actually. The early media commentary about sufferers of the illness being lazy or malingerers caused a lot of people a lot of harm.

          Not only did this innaccurate media claim result in hostility and verbal abuse from several people but I even was told by Social Security staff for several years after my diagnosis that the disability pension did not recognise the illness so I continued to study and try to find work resulting in missmanagement of my symptoms and worsening of my condition and loss of quality of life. Only to find out that others in my town with the condition had been on the pension for the illness with less severe symptoms than myself for that whole time!

          My doctor informed me of the processes I needed to go through. The staff at Social Security had missinformed me, repeatedly.

    • Tom Campbell

      June 16, 2009 at 1:42 am

      A Welcoming Response to Skepticus

      As someone who comes to human rights and human rights law from a political theory point of view, I endorse the views of Skepticus and others that the global institutionalisation of human rights is a cause for concern in terms of its anti-democratic aspects.  There is a real downside in equating human rights with the pronouncements of international institutions and the judgments of domestic courts. Democracy is, after all, as the philosopher Jeremy Waldron famously wrote, 'the right of rights'. Even with the rather modest proposals for a 'charter' like that adopted in Victoria, there is considerable scope for judicial 'interpretation' to distort the legislation of the Victorian Parliament.  

      However, I think we can look on human rights as important guides to how we as citizens should approach political debate, decide how to cast out votes and what say to our representatives. The United Nations Declaration of Human Rights is a wonderful document and the Conventions that are based on it are certainly worthy of our support, but they should be turned into specific legislation in Australia by our elected politicians and not through the backdoor of judicial lawmaking.  It is very important that we have human rights laws, but they should be laws made by our governments on the basis of the manifesto on which they have been elected. My own view is that we should adopt a bill of rights that is used for educational and political purposes to assist the Parliament and ourselves in  the hugely important task of holding governments to account for how they treat all citizens. 

      • Brett Paatsch

        June 16, 2009 at 3:36 am

        You say they should be – why haven’t they been Tom?

        "they should be turned into specific legislation in Australia by our elected politicians and not through the backdoor of judicial lawmaking".

        The UN Declaration of Human Rights was written in 1948. Seems like there has not been a shortage of time!

      • Bayne MacGregor

        June 16, 2009 at 4:26 am

        How is that valid when the responsibility is FAILED?

        "My own view is that we should adopt a bill of rights that is used for educational and political purposes to assist the Parliament and ourselves in the hugely important task of holding governments to account for how they treat all citizens. "


        Parliament and ourselves Failed that task.

        Failed it for the stolen generation.

        Failed to prevent cultural devestation of Indiginous traditions, languages and more.

        Failed to deal with the myriad inequalities, discriminations and vilifications that lead to the near 30% attempted suicde rate for Australian Gay Lesbian and Bisexual Youth and going by international figures similarly biased against them the likely 50% or higher attempted suicide rate of Transgender youth.

        Failed to provide appropriate neccessary medical treatment for Transsexuals.

        Failed the reproductive rights for GLBT people.

        Failed to learn the lessons of the Eugenics outrages of the past by insisting on coerced sterilisation for Transsexuals.

        Failed even to ensure they get the same basic medical treatment that other citizens enjoy.

        Failed to prevent the unneccessary and often harmful non-consensual Genital Mutilation of Intersex Infants.

        Failed is a strong word. But thats what it is. Failure. Which results in Death!

        Your advocating for what has Failed in the past, Fails today and will continue to Fail in the future!

        So long as the rights, needs, basic dignity and fundamental equality of minorities relies upon the whim or largess then unpopular minorities and those suffering prejudice will continue to be abused rather than protected. And people will continue to suffer and people will continue to die.

        If you take your personal responsibility to these rights seriously, then I suggest you find a way to effectively address this Failure and currently I see that as a strong charter that ensures greater equality not some easilly ignored toothless and worthless paper tiger that can be brushed aside in an instant or used only for the benefit of the popular while continuing to trample and heap injustice upon the rest.

        How many Gay, Lesbian, Bisexual and especially Transgender people have died from the Failure of this responsibility? Where is the holding to account those who ignored that statistic and di nothing or next to nothing to stem the tide of blood and coffins?

        It's nowehere because your preferred model is an abject Failure. And the ACL and their views, Failure. And Peter Cosgrove's preferred system, Failure. John Howard and every past government on protecting GLBT people, Failure. Kevin Rudd thus far with his piecemeal improvements for just some GLBT people on some issues with no great effort on cutting down the deathrate or fixing the injustices to Transgender people Failure.

        Negligent homicide is murder. If you stand by and watch a child drown in a backyard swimming pool when you can swim it's murder. A willfull choice of inaction resulting in anothers unjust death. Well not acting to stem these deaths is the same!

        How long will Australia remain a nation of murder? As long as it retains this system of Failure.

    • Brett Paatsch

      June 16, 2009 at 3:50 am

      Which parts of which conventions do you object to Skepticus?

      I agree that many ordinary Australians played no part in the drafting of those documents – but we hardly need to or all together in our millions could – there is a difference between representative democracy and direct democracy and we have a representative one.

      We don't vote for a Prime Minister or a Federal Cabinet – we vote for representatives from the choices in our local electorates and then the chosen appoint a Prime Minister from amongst themselves.

      In practice though Prime Ministers and Federal Cabinets determine most of the day to day business of governments weighting up a variety of competing demands.

      Personally I am not happy with the idea that Federal Cabinets may choose to support important American allies agendas by trading away the basic rights of individual Australians as bargaining chips. 

      If your picked up by mistake overseas wouldn't you want to be able to ALSO appeal to a judge (not concerned about getting reelected) to have your right to appear and state you case when politicians may decide you personally are less important against the conflicting goal of keeping the large economic and military ally onside?

      David Hicks sat in detention for longer than it takes Australians to change our governments.

      • Tom Campbell

        June 20, 2009 at 5:16 am

        A short reply for Brett

        But they have Brett!   Human rights are most directly and effectively protected through specific legislation. The United Nations Declaration on Human Rights, along with other instruments, and political activism, has resulted in a great deal of human rights legislation over the past few decades: The Racial Discrimination Act, The Sex Discrimination Act, The Disability Discrimination Act,  as well as lots of other statutes, including parts of the the Crimes Act, all of which play some part in promoting human rights. For the complete picture see David Kinley Human Rights in Australian Law, 1998, Federation Press. Or the Australian Human Rights Commission website: ´Human Rights Explained´.   It is a big mistake to think that human rights have to be implemented by courts changing or seeking to change legislation. We have to take responsibility for this ourselves.  

        • Bayne MacGregor

          June 20, 2009 at 3:16 pm

          -1 + 1 = 0

          That some legislation consistant with Rights has been implemented without courts is clear.

          That legislation directly contravening them has been implemented is also clear.

          How then can we consider the former sufficient when the latter occurs so often?

          "We have to take responsibility for this ourselves."

          Which has been a failure thus far resulting in countless deaths of discriminated against minorities. The GLBT youth suicide rate alone condemns it.

          Are we not as a community then responsible for these deaths and injustices?

          How if not through a strong charter could this horrific situation be effectively changed? Is not providing such a safeguard the most responsible act the community could do?

          Is it not the equivalent of handing our car keys over before we start drinking knowing full well when drunk we could make bad decisions? When sober we get them back and drive safely. Would such a charter not be similar, a simple effective functional safeguard for those times when the community get it very very wrong as it has done repeatedly in the past to a host of groups of people and individuals?

        • Brett Paatsch

          June 22, 2009 at 2:40 am

          Thanks for the courtesy of your reply Tom, But…

          I'm not persuaded and tend to agree with Bayne's comment.

          To me, it is unsatisfactory and hypocritical of Australia and of Australians generally through our parliaments to, on one hand sign treaties with specific words and terms in international forums and to on the other hand not put those same words and terms into legislative effect here in Australia. 

          Picking and choosing from our own international statements as a nation which we will honour and which we will not is a practice that if other nations adhered to would make the whole exercise in trying to establish international law hopeless.

          What happens when Australians turn up to sign another treaty – do other countries look at us to see if we have our metaphorical fingers crossed? – this is no way for groups of homo sapiens – thinking, rational, beings to behave. I find it most objectionable when the United States as the world's leading power breaks its word on treaties that prohibit aggressive invasion and torture but we here in Australia are also a part of the problem of undermining the rule of law internationally when we don't do as a nation what we say we are going to do – I don't think it gets much simpler than that.

          Australia should back to back its treaty promises with mirroring legislation – and if it won't other countries shouldn't accept further treaty promises from us as valid and honourable (and we likewise of them).  Its not possible to build rational confidence in the rule of law on obviously incosistent foundations. 

          Reading over the comments in this forum and noting the relatively few that have commented doesn't give me as an Australian a great deal of confidence in my fellow Australians. I feel like what is likely to come out of parliaments or juries made up of such people is going to be closer to a random outcome that a reasoned and just outcome. 

          You seem to be of the view that a charter can serve an educational function – and it might theoretically do that – but I don't see in those without an understanding of basic civics currently any great desire to overcome that lack of understanding. Disappointingly, most Australians seem to be perfectly satisfied maintaining an "I'm alright Jack" attitude to human rights.

  21. phillynch

    June 16, 2009 at 4:05 am

    The Value of UN Conventions and Foreign Law

    Thank you for raising these concerns regarding the nature of international human rights conventions and their relevance to Australia.  Thank you also for the comment regarding the use of international and comparative jurisprudence.

    I would like to make a number of comments in response.

    1. Both Liberal and Labor Governments have a proud history of contributing to the development of international human rights conventions.  Australia's Doc Evatt, a Labor Minister, was President of the UN General Assembly when it adopted the historic Universal Declaration of Human Rights in 1948, while the Howard Goverment played an active and constructive role in the negotiation of the most recent international human rights instrument, the UN Convention on the Rights of Persons with Disabilities. 

    2. The core international human rights treaties, including particularly the ICCPR and the ICESCR, enshrine a body of core minimum standards necessary to live with dignity and very much embody and reflect fundamental Australian values like decency, equality, freedom and a fair go.

    3. The process of Australia becoming a party to an international human rights treaty is fundamentally democratic.  While it is the Government that signs international treaties, Australia generally only ratifies and becomes bound by such treaties if such action is recommended by the Joint Standing Committee on Treaties.  This is a parliamentary committee comprising members from both the Senate and the House of Representative and from all sides of politics.  Prior to JSCOT making such a recommendation it holds a public inquiry which enables individuals and organisations to make submissions as to whether the treaty should be ratified.  It is open to any Australian to participate in this democratic process.

    3. Once a country ratifies and becomes bound by a UN human rights treaty it commits itself to a process of 'periodic review'.  This involves the Government of the country engaging in a constructive dialogue with independent international human rights experts to identify areas of best practice and areas for improvement.  Although these experts are independent of any country, a number of outstanding members of these expert committees have been Australian, including the Hon Elizabeth Evatt, Prof Ivan Shearer and Prof Ron McCallum.  The aim is not for NY or Geneva to tell Australia what to do but to have a mature discussion among leading experts about how we can do better.  It is entirely a matter for our elected representatives in Australia as to whether and how they implement such recommendations.

    4. I am not aware of any person or organisation who advocates that Australian courts should be bound by the decisions and jurisprudence of international and foreign courts.  Many advocates, myself included, do however consider that it can be very useful and instructive to look to such decisions to inform our own courts.  This is not to surrender sovereignty but to recognise that there is no point re-creating the wheel and there may be value in considering how other courts and tribunals have approached similar issues and problems without necessarily being bound by those decisions.  Just as Australian doctors should look to foreign research to inform our own medical advances, so too can we benefit from looking to foreign law.


    Philip Lynch
    Human Rights Law Resource Centre

    • Skepticus

      June 17, 2009 at 7:45 am

      Do pro-UN HR Chrters types now love the secrecy of the Executive

      Well Phil, you are clearly an opponent of the likes of professors Williams and Charlesworth! 

      You see, they decry the power and alleged increasing tendeny of the executive to make decisions in secret. You, on the other hand are just fine and dandy with the executive not only acting so, but in foreign fora on matters, which are purely domestic. As Justice McHugh notes, Australia is currently party to over 900 foreign and internatioal treaties.

      Perhaps you would like us to junk our Constitution and make the truly vile UN HRC our new Privy Council? 


      • Bayne MacGregor

        June 17, 2009 at 9:18 am

        Can you cite this ‘secrecy’?

        What of these treaties were secret?

        Or maybe the problem might be, I'd suggest, the failure of the media to report them?

        Using internet news sources I heard about the UN Decleration on Sexuality and Gender. If I relied on the evening tv news I might have got a report about a celebrity or a disguuised-as-news product advertisement but I doubt I would have heard that Australia joined more than 60 of the worlds natrions including the USA and most of Europe in supporting the rights of Transgender, Gay, Lesbian and Bisexual people and calling for an end to their oppression worldwide.

        So maybe your gripe shouldn't be with Government but with the Media?

      • Brett Paatsch

        June 17, 2009 at 5:25 pm

        That Federal Cabinets sometimes make decisions in

        secret is one of the reasons I WANT human rights Scepticus.

        I don't want Australians citizens rights (such as the right not to be indefinately detained without trial, or the right not to be tortured, or murdered) to be bargaining chips that Federal Cabinet can sacrifice in order to gain advantages or to avoid penalties when considering trade and/or defense matters with American goverments. 

        If the Federal Cabinet or a Minister or Prime Minister is inclined to let you rot in a foreign gaol or to be tortured or murdered because you are unpopular and unsympathetic in the media then you should still be able to expect that an Australian court would instruct the government that, as an Australian citizen, your sacrifice was not their political prerogative to take. 

        I think you are arguing against your own interests Scepticus – you seem to want more power as a citizen not less and that comes from having a core of essential rights that can't be used as negotiable political chips by politicians that necessarily have an eye for the short term electoral advantage!

        • Skepticus

          June 18, 2009 at 12:54 pm

          These UN Treaties ARE examples of Executive Secrecy!
          In that case, Brett, why are you so keen to have two UN treaties – ICCPR/ICESCR – decided by nobody other the Minister for Foreign Affairs or his diplomatic minions, to suddenly become the pinnacle of Australian law, without a referendum, a plebiscite, or even a bloody show of hands!?

          • Brett Paatsch

            June 18, 2009 at 4:08 pm

            Skepticus please consider my reply

            I am NOT advocating for that.  I have an open mind on those conventions and am willing to hear any specific objections you have about the terms of either of them.

            I AM advocating for additional protections for a core minimum of rights for all Australians so that Federal Cabinets cannot secretly trade them away in the case of any Australian. I have specifically mentioned the right not to be murdered, tortured, or indefinitely detained without having a right to a trial BY the agents of the United States of America. (To some people reading this that will make me sound like a nut because they cannot envisage that the United States of America could or would ever be a threat to good old faithful Aussies – but they most certainly can be).

            I cannot see for the life of me how you can say that the ICCPR and ICESCR are examples of Executive Secrecy when I can Google those acronymns and get the terms of those treaties just as easily as you can.

            They are completely public domain. 

            Your real objection seems to be that SOME Australians, including people like you, (or me) were not given an opportunity to comment on or to reject those treaties from being signed.  Your real objection seems to be that you feel treaties should not be made at all that don’t have the backing of a referendum – isn’t that correct?

            I really think you are still arguing against your own interest.

            Please consider this Skepticus – and you can check it for yourself using the internet and Google, whilst it IS possible to see what the terms of the above treaties are – it is NOT possible to know what decisions Federal Cabinets may make about sacrificing your rights or mine as part of some deal if the Americans choose to detain us, because of the 30 year rule. 

            See this link

            And note especially this excerpt:

            “Cabinet confidentiality

            Cabinet meetings are held in secret and the minutes from Cabinet meetings are confidential. Commonwealth Cabinet minutes are only released to the public after 30 years have elapsed and the Cabinet notebooks, in which Cabinet note-takers record the views of individual ministers, are only released after 50 years. The argument for Cabinet secrecy is that it enables ministers to have a free and frank discussion in private before coming to an agreed view.”

            Now I ask you, what do you have more reason to be afraid of – treaties whose terms are available and judges whose decisions are written up and made public – or cabinet ministers who can keep their decisions secret – including perhaps the decision to let the Americans do what they like with you in exchange for something else – for thirty years?

            You make very clear that you don’t want to be disempowered, but can’t you see that as you are NOT a citizen of the United States of America you are disempowered as far as the United States is concerned already – you and I and all non-Americans have only second class status to the United States of America sir – they have demonstrated that our rights as "aliens"/foreigners are expendable to them, and what I am arguing for is that our Australian governments ought not be able to sacrifice any Australian to the Americans.

    • Skepticus

      June 17, 2009 at 8:03 am

      Disigenuous ‘bait and switch ‘re power of foreign courts


      Your Point #4 is complete tosh and does not address my point. Sadly, this sort of 'bait and switch' rhetorical tactic is rampant among the pro-UN Luvvies.

      Have you read the Victorian Charter? Have you read s.32, which says. amongst other very concerning powers:

      International law and the judgments of domestic, foreign and international courts relevant to a human right may be considered in interpreting a statutory provision.

      And have you read the case law on this provision, which goes much further than any of you lot have ever told the Australian public.

      In  Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009), Justice Nell held:

      that the interpretive obligation in s 32(1) is ‘very strong and far reaching’.  With reference to international jurisprudence, he laid out a series of principles to be employed when undertaking the task of reinterpretation.  These included that:

      • the application of the obligation is mandatory;
      • it applies where the legislation is clear and unambiguous and may even require the court to depart from the legislative intention of parliament!!!!!!!!!!!!!!
      • it may require the court to read in words to legislation, read legislation down or narrowly, or read legislation broadly to achieve compatibility

      George Williams wrote this chapter, and specifically snuck this provision in, so don't go try telling us that you people do not intend these outcomes and worse.

      • Bayne MacGregor

        June 17, 2009 at 9:19 am

        Define the Harm of this

        Just for sake of argument assuming your correct on this, what exactly would be the harm of it?

        Give me an example of how Australians would be directly clearly harmed by this.

        Which human rights if any of Australians would be harmed by this.

        Show me how this would result in injustice and not justice.

        I get the in-principle notions about independance etc. So I'm not asking about that. I'm asking about how this would result in a direct harm, an inequality, an injustice, to specific Australians or groups of Australians.

        And as I understand it we already use U.K. court decisions and Common law (which their moving to a charter of rights and their access to the EU human rights court makes this traditional legal tie ever more unworkable) then how would this measurably make us worse-off?

      • Brett Paatsch

        June 17, 2009 at 6:19 pm

        I’m not a lawyer but the key word MAY stands out Skepticus

        I understand MAY to be essentially exchangable with MAY NOT – its discretionary not compulsory. I see nothing wrong with Australian courts considering how foreign courts ihave interpret statutes with similar wording and intention as well as other things like explanatory memorada and the parliamentary transcripts etc when they are ambigous and an interpretation is required to make sense of a law. Australian parliaments are made of Australians that are also influenced by ideas circulating in the rest of the world. Australian politicians and planners borrow and exchange ideas with the rest of the world quite naturally. 

        On your second point – when a statute says something clearly and unambiguous and those words on their face MAY not represent the intent of the parliament (whose intents are sometimes hard to determine precisely), that judges take then take those words literally and don't guess at the parliaments intent seems sensible. A misunderstood parliament that expresses itself badly can always get their words to correlate with their intentions the next time around.


  22. Fr Frank Brennan

    June 17, 2009 at 6:13 am

    Closing dates

    Submissions to the National Human Rights Consultation Committee closed on Monday 15 June 2009.

    If you missed the deadline to make a personal submission, and would like to participate in the consultation process, there are still two avenues available to you:

    1. You can participate in an online consultation at until 5pm 26 June.

    2. Public Hearings will be held in the Great Hall, Parliament House in Canberra on 1 to 3 July 2009. Please continue to visit for more information on how you can register to attend the Public Hearings.

    Please note, contributions to Open Forum will not constitute official submissions, however the Committee will be considering your views in preparing their final report to government.

    Father Frank Brennan
    National Human Rights Consultation Committee

  23. Vytautas B. Radzivanas

    June 17, 2009 at 5:29 pm

    RE Comment by samir 27 05 09

    Generally agree with your ideas, though I haven't fully digested them, but it does immediately strike me that the principle of non discrimination against women is not in the spirit of equality for ALL. Men, and persons of a variety of sexualities, without having to list them all, can also be discriminated against, not just women. A slight change of wording would be much more all inclusive and much more in the spirit of human rights. For example, it would be better stated thus, non discrimination on the BASIS OF GENDER, without specifying whicH, since all should be protected, not just women, and that phrase BASIS OF GENDER covers all possibilities which also do include women.  Otherwise, it would be similar to speak of non discrimination only against indigenous Australians, whereas I think we'd prefer to include ALL Australians, which does include Aboriginal Australians as well as Migrant Australians. in the spirit of equality, not preference of one or the other.




    • Bayne MacGregor

      June 19, 2009 at 4:39 am

      “Including but not limited to”

      It has been historically important in many countries to provide examples of people who face particular inequality to be sure that invalid narrow interpretations are not used to deny people their equality.

      As such the words: "Including but not limited to" are important to have in a charter, followed by several examples of the most discriminated against groups which should include Intersex, Transgender, Gay, Lesbian and Bisexual Australians regarding discrimination based on: "Sex, Sexuality, Gender Identity and Expression".

      The same can be done for Race, Ethnicity, Nation of Origin, Culture, Sub-culture, Religion etc.

      Also the need for real-life equality is important. This allows for affirmative action for any group under-repressented because of discrimination. As this is something that some people fear may 'go too far' 'flip' and 'discriminate the other way' it could easilly have any affirmative action tied to the census so that it is maintained only so long as the under-representative discrimination effect remains. Once an equitable representation is achieved affirmative action can be reduced till stable practical real-world equality exists without tipping the other way as many fear.

      Surely thats a simple way of ensuring fair practical real equality?

  24. Jim Staples

    June 18, 2009 at 5:33 am

    Draft law for human rights

    I take the view that, at least  as a first  step,  we should adopt the European Convention. What is good enough for Europe is good enough for Australia. It has been most fruitful for liberty of the citizen there.

    To meet the constitutional barriers that may have to be faced by a law of the Commonwealth in enacting an  effective law, and to  bypass all the debate about content now afoot, I offer the form of a law limited to the Commonwealth as may appear in the draft below, and copying Europe.  

    A Commonwealth enactment would leave gaps in the laws of the States for like standards in State  affairs  The sure way to meet this would be to have each of the States so willing to make laws in a like text. This would in the nature of things be limited to  affairs solely with the purview of the States, but in all thereby the whole law field in Australia would be covered. By-passing our constitutional barriers is possible, as under the treaty power, but there are difficulties in such a strategy.

    Under our laws and the customs, policies and practices of our courts, in any event, the precedents,  the decisions and the jurisprudence of the European Court of Human Rights would surely be given the utmost weight and authority by our courts, even though they would not be bound by  them. There is a wealth of jurisprudence now in the record and built up over the last fifty years or so in Strasbourg for us to turn to. 

    I know that the courts here are  always keen to keep the floodgates of litigation closed off or only a little ajar.  I would think that may be, or there there would be, a case for setting up  a public authority between the litigant and our courts.  

    At Strasbourg, where I saw cases  argued, under the Convention it is provided that a litigant who wishes to invoke the Convention before the European Commission must first exhaust  all avenues of appeal in the domestic tribunals of the claimant  before the Commission can up take a claim under the Convention. The Commission  alone may appear as a party before the Court. 

    Nevertheless, the practice has developed at Strasbourg of allowing the disappointed domestic litigant  to appear at the bar table before the international court in a role akin to amicus curiae, as happens  from time to time in the practice of our courts.  We could do likewise in the appropriate circumstances. 


    1 Notwithstanding any other law,

    a) the rights and freedoms, protections and immunities apparently secured to persons in the jurisdiction of the states signatory to the European Convention on Human Rights and the Protocols as the same appear in the text set down in the Schedule to this Act shall be rights and freedoms, protections and immunities secured by the law of the Commonwealth of Australia to persons within the jurisdiction of the Commonwealth and shall prevail over any law of the Commonwealth inconsistent therewith, and

    (b) the rights and freedoms, protections and immunities declared in the text in the Schedule shall be deemed to have been duly declared under and by the law of the Commonwealth and they are by this Act secured to persons within the jurisdiction of the courts and tribunals of the Commonwealth of Australia.

    The Schedule

    (the whole complete European Convention and Protocols)

    (The bill, amended appropriately for the name of the jurisdiction, should be made the law of all of the jurisdictions – the Commonwealth of Australia, each of the six States, and of the two Territories)

    Jim Staples
    Director, Council for Civil Liberties
    Former industrial relations and arbitration judge and a leading barrister at the NSW and Federal bars

    • Skepticus

      June 18, 2009 at 6:09 am

      Let’s become a European colony again!


      I'm not sure if you got the office memo, but Australia has not been a European colony for some time. If you wish us to become one again, put it to a Referendum.

      You should be ashamed of yourself. 

  25. phillynch

    June 18, 2009 at 6:25 am

    Interpretative Obligation and Use of Foreign Law

    Dear Skepticus

    In response to the concerns raised regarding s 32 of the Victorian Charter, I make the following observations.

    1. The requirement that legislation be interpreted compatibly with human rights is circumscribed by the requirements that any such interpretation be 'possible' (ie, not unduly strain the legislation) and 'consistent with statutory purpose'.  In considering this provision in the matter of Kracke (to which you refer), Justice Bell says at para 230 that 'remember, the sovereignty of parliament is paramount…judges have the role of interpreting legislation and Parliament has the role of enacting and amending legislation'.  It is notable that in this case, which concerned the interpretation of provisions of the Mental Health Act 1986 (Vic), Justice Bell adopted the meaning which he considered best gave effect to the beneficial purpose of the legislation (which includes community protection) rather than the interpretation which would most have privileged the rights of the individual.

    2. Section 32(1) was enacted by Parliament.  To give full effect to s 32(1) is to give effect to the intention of parliament, not to usurp its sovereignty.

    3. Section 32(2), which states that international and foreign human rights law may be considered in interpreting Victorian law is 'permissive', not 'compulsive': Kracke at para 202.  As I maintained in my earlier post, this enables Victorian courts to benefit from the experience and insights of courts and tribunals in other jurisdictions, but certainly does not bind us to follow them.

    Philip Lynch
    Human Rights Law Resource Centre

    • Skepticus

      June 18, 2009 at 12:46 pm

      “The People” are Soveriegn, not Foreign Courts


      Very disappointingly, it has become a trademark rhetorical tactic of the anti-citizen, pro UN Luvvies to 'bait and switch' and never utter the most revolutionary implications of your Charter.

      1. Phil, in Australian democracy, it is not the parliament that is sovereign; it is we "The People" who are sovereign;

      2. You have not responded to the scandalous but totally predictable path this undemocratic Charter model has already taken:

      What do you say to this:

      that the interpretive obligation in s 32(1) is ‘very strong and far reaching’. With reference to international jurisprudence.

      How can you be so blase that Australian values are to be outsourced to god-knows what foreign hideousness, such as the lovely UN Human Rights Commission? Do you KNOW what sort of antedulvian scum dominates that place?

      And worse still, "the application of the obligation is mandatory".

      I would end my disgust with this:

      may even require the court to depart from the legislative intention of parliament!!!!!!!!!!!!!!

      But Wait! There's More:

       it may require the court to read in words to legislation,

      Phil, why are you, George, Hilary, and the UN Luvvies hiding this from the Australian people?

  26. James South

    June 18, 2009 at 10:33 am

    Scope of the interpretative obligation

    Hi Phil,

    Do you agree with Justice Bell's view that "[s]ection 32(1) of the Charter and s 3(1) of the Human Rights Act express the same special interpretative obligation and are of equal force and effect"?

     If so, do you think that courts applying a federal Charter should have the power to depart from the legislative intention of Parliament (even for future laws), change the meaning of unambiguous legislation by reading down or reading in words, and give interpretations of legislation that are not reasonably open?

    • Skepticus

      June 18, 2009 at 1:17 pm

      The Pro-Charter academics have planned for even worse



      Make no mistake, George Williams totally planned for this development when he snuck in s.32. Ditto Hilary in the ACT. Phil, and the whole cabal are just wetting themselves at this transfer of democratic power from we "The People" to THEM.

  27. trgh

    June 18, 2009 at 2:52 pm



    I just joined up and started reading ….

    So many good points and opinions!
    Well done everybody!

    A few of my own comments:

    I appreciate the sentiment that they who decide on the contents of this document of moral values should be representative and accountable (unlike the judicature), and  'we the people' should have the power to toss them out of office if enough of us agree that they are not doing a good job of the functions we have employed them to do.
    So, in light of this, if we must have such a document then I guess the best place for it is certainly, imo, in the hands of Parliament.

    However, there is a more fundamental issue here I think.
    That is, that there are Absolute Values which transcend human thinking.
    Call it Christian, or Spiritual, or the Tao, or Common Decency, or whatever, but it did not originate in the mind of man, it is above man, and man cannot improve on it!
    Sure, he can apply – even contemporise it, but no matter what he thinks, he is subject to this "natural" law.
    Churchill said "The truth is incontrivertible.  Malice may attack it, ignorance may deride but in the end – there it is."

    So, if we hand over the right to declare what is morally perfect, to an imperfect committee of people, then we will get something which is less than perfect, something which marginalizes someone, somewhere, and is badgered by popular opinion somewhere else.  I think that most must agree that just because something is popular, it doesn't guarantee that its correct.
    Pornography is popular among men for instance – but how many of those same men would like to see his daughter in one of these magazines?

    Now the other fundamental issue is this:
    If we hand over this right to dictate moral standards to a committee of people, then in the same breath we are giving them the right to change their mind and withdraw them at a later date!
    We have, in fact, allowed them to play God, to replace the absolute with the relative, and allowed them to dictate to us what is good for us – and thereby allowing them to DO good to us, whether we want it or not.

    I hope and trust we Australians have enough respect for our own intelligence, our personal freedom and responsibility, and enough faith in our own perception of those immutable values, to be very cautious about adopting this declaration. 

    Terence of Melbourne 

    • Bayne MacGregor

      June 19, 2009 at 5:22 am

      And yet…

      What absolute moral values are you referring to?

      There is however thousands of years of human philosophy on the matter both religious and secular. Evolving and improving over time. And it's current and most consistent form is human rights philosophy based substantially on Ethics of Reciprocity.

      "So, if we hand over the right to declare what is morally perfect, to an imperfect committee of people, then we will get something which is less than perfect, something which marginalizes someone, somewhere, and is badgered by popular opinion somewhere else."

      Hand over? Friom whom or what? As for the consequences you suggest that  is exactly what happens today. Based on inconsistent and unjustifiable discriminatory biases Gays, Lesbians and Transgender people as just some examples face widespread inequality and injustice via the law.

      "I think that most must agree that just because something is popular, it doesn't guarantee that its correct."

      Indeed. Injustice has often been popular, which is the greatest flaw of our current system.

      "Pornography is popular among men for instance – but how many of those same men would like to see his daughter in one of these magazines?"

      Last I heard 1 in 3 viewers of pornography are Women! On top of that there are strong corellations between pronography access and rape, but contrary to frequent assertion that pornography leads to rape the statistics show that the more access to pornography in a country or state the lower the rate of rape

      So perhaps a better question is, faced with such data (assuming it is not at some point successfully reffuted) would most men rather their adult daughters are looking at as well as appearing in pornography if they choose to of their own free will and running a lower chance they may be raped or would they rather a higher chance of them being raped?

  28. JEQP

    June 18, 2009 at 9:16 pm

    Imperfect wording causes problems

    I'm against a constitutional bill of rights because it would have to be worded perfectly not to cause trouble…and I don't think it can be worded perfectly. I agree that people's rights need to be protected, although I have no idea if a bill of rights is the best way to go.

    The Universal Declaration of Human Rights includes "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author"… so the Government should protect these rights, but how far should they go to do so?


    • Bayne MacGregor

      June 19, 2009 at 4:52 pm

      What about a Charter?

      You don't support a constitutional bill, but what about a guiding charter with legislative review processes?

      As for your question on the right to authorship etc.. When works are published Authors are credited. Actors etc named in credits on tv and film. Artists are either paid in full for works they sell or receive royalties. some limited reproduction of material for educational purposes has fair-use guidelines, artists may use others images in their own works only if the final result is sufficiently different that it is clearly a seperate artwork (e.g. photocollage like the Dada-ists) and not merely a forgery etc.

      Our laws against plagiarism etc protect these rights. Whether sufficiently though I do not know, but I haven't encountered any raising of the issue.

  29. Susan Leckenby

    June 19, 2009 at 12:50 am

    Human rights???????

    Just whose rights are we talkng about? This seems to be a site where Atheists and those who don't like any sort of absolutes that say that can't do anything they want can have their say. Well this is one Christian who is standing up for her God given rights. I am entitled to my faith which gives me hope and a future. It seems to me that minority groups have more of a say than any one else. Australia was orginally founded on a Biblical basis for all her laws. The Bible gives absolutes to base our laws on whether or not individuals like it or not. God's laws are the only justice system I shall rely on. We seem to have a legal system at the moment rather than a justice system Do these people want to have a socieity where there is no absolutes but where everyone does what they wnat regardless of everyone else. I am opposed to a Charter of rights which would allow judges to determine if laws are incompatible with human rights. These judges are just as biased and human as me and are NOT GOD! I support the protection of human rights, especailly those most vulnerable, but I wish to see the elected representatives of the people remain responsible for their protection, not unelected judges. I note that our system has already made Australia one of the freest countries in the world with a human rights record that is the envy of the world but let's not get carried away but mistaking the individual's rights to do whatever they want with the basic human rights which make life livable. God is the ultimate judge before whom we all must stand one day – Are you ready? He is real whether you believe in Him or not!!!

    Susan Leckenby

    • Bayne MacGregor

      June 19, 2009 at 5:54 am

      Rights for All, Christians and Non-christians Equally

      Other religions exist in this country.

      Indiginous beliefs existed priorto the introduction of christianity.

      Australia was not a specifically christian nation nor built on christian principles (see the refutation of this on the welcome to the consultation page).

      There needs to be equal rights for people of all religions and for agnostics and atheists. We all live in this country and to coexist in it we need laws and governement unbiased in religious matters.

      Human rights provide a fair unbiased basis for fair and just laws.

  30. jo justo

    June 19, 2009 at 5:57 am

    We Must Have a Bill of Rights

    I respectfully request the introduction to Australia of a Bill of Rights and I support the preservation and enhancement of individuals' rights and freedoms. 1. Principle to be included in an Australian Bill of Rights "All people have the right to self-determination" 1.1 During the last 60+ years, the world's citizens have experienced a remarkable development in, and recognition of, the rights of peoples within countries including rights for women and children. Historically and currently, laws which restrict the right to self-determination, operate in the main against women and until recently, men of "deviant" sexual preference. These laws have been enacted primarily by male-dominated legislatures, supported by male dominated church people and leaders. Examples of such legislation are laws relating to abortion, surrogacy and prostitution. 1.2 Part 1 of Article 1 of the International Covenant on Civil and Political Rights states: "All peoples have the right to self-determination……." It is now time to recognise the rights of the individual as well of those of people collectively (or groups). If groups (peoples) merit protection then equally so does the individual (for the individual can be repressed by the group, as well as by the state). 1.3 On a wide range of private decisions, we need to address the issue of who decides? 1.4 Together with the previously mentioned laws relating to abortion, surrogacy and prostitution; sexual preference, IVF, voluntary euthanasia and personal use of drugs, are ones for which the individual should take responsibility and not have legal restriction on their freedom to act; [so long as it does not do harm to other people]. 1.5 It must be accepted however that different individuals with the same access to information may choose differently. As a society we have a responsibility to respect their decisions, even though we may feel that they are wrong. 1.6 Three examples of issues that have been well handled in modern society are tobacco smoking, alcohol consumption and the treatment of HIV/AIDS. Could the reason for this be that men are so heavily involved with them? The State has introduced and marketed safety measures, taxed products, and introduced extensive education programmes to influence behaviour. They have been fairly successful in discouraging unsafe practices, protecting society generally, collecting revenue to help pay for programmes, yet leaving the individual free to go to "heaven or hell" in their own way. 1.7 For women, the right to self determination is particularly important. Women will never achieve equality while society is able to control them by discriminatory laws, indicating that they are not trusted as decision makers. In conclusion: The individual must be free from government suppression, except and unless it is absolutely necessary to prevent harm to other persons.

    Jo Justo

  31. Edward Young

    June 20, 2009 at 7:08 am

    Equality for gay/lesbian couples and the need a Bill of Rights

    The main three terms of reference being used by the committee of four persons, known as the National Consultation on Human Rights put in place by the Attorney General, supposedly being consulted on views held by the Australian community about human rights and how those rights could be effectively protected, presents a minefield for the response from the ordinary citizen without some sort of legal knowledge of how those terms of reference equate with day-to-day life. 

    As Geoffrey Robertson states in his book, "The statute of liberty: How Australians can take back their rights" – My great concern is that members of the public will not come forward with concrete reasons for a Bill of Rights because they think what they have to say too minor. 

    I concur, when an ordinary Australian (which I consider myself to be) reads those terms of reference they may think human rights fall within narrow parameters. If the words "full equality before the law" had been included, the reader would be alerted to considering many other directives pertaining to equality before the law and perhaps more response would be forthcoming. 

    I should also like to point out that, due to the lack of publicity about this National Human Rights Consultation, many members of the Australian community do not even know of its existence. How then, could this committee present a wide range of views on human rights from the Australian community to the Attorney General?

    What has become generally known is that religious organisations, due to their networking activities, are preparing submissions denying homosexuals and lesbians their right to be treated with equality before the law, in spite of the recent passing of the same sex relationships legislation – Equal treatment in Commonwealth laws superannuation Act, 2008, and Same sex relationships (equal treatment in Commonwealth laws general law reform) Act, 2008.

    This legislation means, in effect, that same sex couples and their children will have the same rights and responsibilities as all other Australian families. This legislation has not gone far enough, but it is an important step toward full equality for same sex couples and all homosexuals and lesbians in our Australian community. 

    In the now historic Young versus Australia case, the Howard Government was told by the UN Human Rights in Geneva that they had breached the international covenant (of which Australia is a signatory) on civil and political rights with the denial of Young to be treated with equality with regard to his same sex partner of 38 years (a War Veteran). This directive by the UN became the strongest statement ever made globally on the rights of same sex couples and recognising gay and lesbian relationships as being as valid as heterosexual ones. Although the Howard Government ignored the directive from the UN, eventually the Young versus Australia case was used in debate in the Lower House in Canberra (22 to 24 September, 2008) to help bring about the changes that have lead to the historic same sex relationship reforms.

    These reforms are not enough without a Federal Same Sex Partnership Bill giving full equality before the law. Discrimination and vilification of homosexuals and lesbians is still rampant and, without a Bill of Rights, a government can be very adept at finding arguments for not granting its citizens that which is our birthright; that being, the fundamental right of every human to be treated with equality before the law. 

  32. phillynch

    June 22, 2009 at 1:26 am

    Response to James and Skepticus

    Dear James and Skepticus

    Below are some very brief comments on the issues and questions you raise with respect to section 32 of the Victorian Charter and section 3(1) of the UK HRA which both require that legislation be interpreted compatibly with human rights.

    1. Such provisions are enacted by parliament.  In enacting such a provision, it is both the purpose and intent of parliament that legislation be interpreted compatibly with human rights.  The principle applies not only to courts and tribunals, but to anyone interpreting and giving effect to legislation (eg, in Victoria, the Department of Human Services needs to interpret and apply the Mental Health Act consistently with human rights).  The is nothing remotely undemocratic in this.

    2. These provisions are mandatory in their operation.  That is, they are cardinal principles of statutory interpretation which must be applied to their full extent.

    3. The interpretative principle may require departure from the intent of parliament, but not the PURPOSE of parliament.  This is consistent with existing principles of statutory and constitutional interpretation.  For example, the framers of the Constitution in the 1890s could not possibly have INTENDED that a reference in s 51(v) to 'Postal, telegraphic, telephonic, and other like services' include the internet, but is is consistent with the PURPOSE of this provision that it be interpreted in an evolving way. 

    4. As with the Victorian Charter, it is my view that any interpretative principle in a national Human Rights Act should be constrained to enabling and requiring interpretations which are 'possible' (ie, do not unduly strain the legislation) and are 'consistent with statutory purpose' (ie, maintain fidelity to parliament's fundamental purpose in enacting the legislation).  While section 3(1) of the UK HRA does not contain the express reference to consisteny with statutory purpose, the courts have read such a requirement into the legislation meaning that, in practice, s 3(1) of the UK HRA and s 32 of the Victorian Charter operate in the same way.

    5. Finally, and again in reference to concerns with the use of foreign jurisprudence, it is in my view desirable and appropriate that we look to and learn from, but not be bound by, the decisions of such leading courts as the UK House of Lords, the European Court of Human Rights, the South African Constitutional Court, the New Zealand Supreme Court and the Supreme Court of Canada.  We should also certainly look to the jurisprudence of UN human rights treaty bodies, such as the UN Human Rights COMMITTEE and the UN Committee against Torture.  These bodies are comprised of independent, international human rights experts and are to be distinguised from the now non-existent UN Human Rights COMMISSION which was comprised of representatives of countries (ie, not by eminent, independent experts) or its replacement the UN Human Rights COUNCIL (again, comprised of representatives of countries) which do not produce jurisprudence as such.

    Philip Lynch
    Human Rights Law Resource Centre

  33. sandie perry

    June 22, 2009 at 2:25 am

    Q : Should Australia have a Bill or Charter of Rights ?

    A : Yes

    Australia should have some form of a Human Rights Bill or Charter and so to ensure that Treaty Ratifications are upheld as part of Australian Domestic and International Law in accordance with its obligations to the United Nations.

    If not – Australia would be at risk of being held in contempt.

    We should be proud to be Australian and not feel ashamed of that at all, ever, in any way.

  34. Bill Miller

    June 22, 2009 at 5:14 am

    We Need an Australian Bill of Human Rights

    I am in no doubt that Australia needs an Australian Bill of Rights. Arguments against the proposal that I have read, serve only to strengthen my belief.

    At this point I would not argue against the content of the Bill being based on the International Bill of Rights as a model or point of departure.

    I have a few special issues I'd like to see covered.

    1. Our right to protection from assault and torture by our security services.

    2. Our right to democracy in our Parliaments

    3. Our right to equal access to public services of equal quality

    4. Our right to a fair share of public services

    Opponents of the Bill who call for a listing of Responsibilities alongside the Rights should put it to the test of a separate companion Bill of Responsibilies.

    A more productive companion Bill would be a Bill of Obligations for Australian Governments and Parliamentarians.

    Please also refer to my blog We Need an Australian Bill of Human Rights.

    Bill Miller

  35. marionmu

    June 22, 2009 at 7:09 am

    bill of rights? no thanks

    I am opposed to the introduction of a Bill of Rights. Rights underpin all of our legislation, and should be addressed in the context of the complexity of the subject matter, and at a whole of society scale. A bill of rights would favour the individual over the broader societies interests. Furthermore, it would lock in our definition of rights, such as has happened in the USA, where the right to bear arms is proving impossible to revoke, despite the innocent loss of life from mad gunmen. 

  36. James South

    June 22, 2009 at 11:37 am

    Potential constitutional impediments

    Thanks Phil for responding to my questions.

    Although I acknowledge that your arguments are credible, I prefer George Williams' view (expressed in his above post of 16/6) that the role of the courts in the ACT and Victoria "is significantly more constrained than is the case under the UK Act". As you would be aware, Michael McHugh also disagrees with your view.

    I believe there are potential constitutional impediments (additional to those identified by Mr McHugh) to the enactment of State or Commonwealth legislation requiring or empowering the courts to depart from the legislative intention when interpreting future laws.

    In contrast with the situation in the UK, the "traditional view" of the doctrine of implied repeal still prevails in Australia. The application of that doctrine in Australia is founded on constitutional requirements.

    Section 118 of the Constitution requires all Australian courts to give "full faith and credit" to constitutionally valid State laws in cases where it is identified (through choice of law rules) that they are the applicable law.

    Covering clause 5 of the Commonwealth of Australia Constitution Act states that all laws made by the Parliament of the Commonwealth under the Constitution "shall be binding on the courts".

    In the circumstances, it is doubtful that any State parliament or the Commonwealth Parliament possesses the power to require or empower the courts to give interpretations of constitutionally valid future laws that are not consistent with the intention of the enacting parliament.

    The giving of such an interpretation arguably would constitute a failure to give "full faith and credit" to a valid State law, or to duly apply or comply with a binding Commonwealth law.

    As identified by Mr McHugh, there are also a number of other constitutional impediments that potentially prevent Australian courts from adopting the interpretative approach endorsed in Ghaidan.

  37. Site Administrator

    June 23, 2009 at 3:12 am

    blogs by Richard Wood

    The following blogs by political commentator Richard Wood, recently published on Open Forum, provide some background to the bill of rights debate – here are the links:

  38. sydneymcs

    June 23, 2009 at 4:36 am

    On CALD Human Rights Issues

    The Commonwealth government during the Howard years has been reluctant to support the strengthening of international rights mechanisms, including the International Criminal Court, the Convention on the Elimination of all forms of Discrimination Against Women, and the Convention Against Torture. At the same time, Australians must continue to rely only on the Australian parliament and the common law to uphold their rights. It seems more important than ever to explore the potential of a Bill of Rights for better defending and upholding human rights in Australia; a Bill of Rights, which will promote consistent application of Human Rights law to all citizens and reduce the segregation that results from a subjective interpretation of the law. 

    We could take as model the United States bill of rights but, no matter what model we choose, this will not become a reality until political leaders and the community accept the general principle of the need for a Bill of Rights. Before we focus our attention on formulating a model for an Australian Bill of Rights, it is first important to think about how to persuade all stakeholders that rights require better safeguards than those that currently exist. 

    In the face of the current economic crisis it will be all too easy to allow our fears and uncertainties overcome us and affect the decisions we make with regard to social fragmentation and exclusion. We must assist new migrant communities to become confident and active participants in cultural and mainstream community activities in order to reduce prejudice through increased exposure and provide for better cohesion and self-determination. Migrants are not separate members of our society, they form an integral and valuable part of community life.  

    At Sydney Multicultural Community Services we see the violation of human rights through the discrimination of people from a Culturally and Linguistically Diverse background. Discrimination affects these people in different stages of their lives. From when they first migrate as new migrants or refugees until their older age when the frequent loss of their second language due to dementia, mental illness or disability becomes a stigma creating isolation. 

    Cultural and linguistic barriers and a lack of cultural awareness in the mainstream society are at the foundation of the lack of Access and Equity that prevent the inclusion of this category of people in the Australian Society        Inclusion of people from all multicultural backgrounds, migrants new and old, in the decision making process, facilitates appropriate service delivery and reduces isolation and consequently enhances quality of life.

    Ethno-specific and multicultural services are pivotal for granting Multicultural communities human rights and to achieve inclusion. There are many forms of participation (which is inclusive of the decision making process). Forms of participation are inclusive of (1) citizen, (2) family, (3) friend, (4) community.

    Despite the fact that there are many avenues for participation within a multicultural community, there are also just as many barriers to participation

    Ø       'Non English Speaking Background' is no longer an identifiable group in policy, this program term has been replaced by ‘Culturally And Linguistically Diverse' which is subject to various interpretations.

    Ø       How migrant, refugees and the children of the first generation are no longer the subject of attention by decision makers.

    Ø       Dismantling of units with specialist expertise e.g. OMA, Ethnic Affairs Commission, Multicultural Structures.Ø       Current Policy for Skilled migrants basically equals to ‘not interested', ‘you have got the skills', language ‘fend for yourself', almost like being punished. Issues swept under the carpet. 

    Other barriers to participation consist of: (1) attitudes towards CALD population; (2) potential lack of opportunity for those with few resources; (3) gender discrimination; (4) social isolation and the effects of this (including depression); (5) mainstreaming of many services without quality assurance and outcome; (6) lack of cultural safety; (7) lack of culturally appropriate services for the growing multicultural population; (8) lack of funding for the appropriate provision of these services; (9) ignorance within the community, which equates to cultural incompetence; (10) in the case of elderly from a CALD background, within Australia there can be a double predicament, that is, being older and coming from a culturally diverse background; (11) cultural dislocation which can be associated with social isolation. 

    Despite the preceding negatives, it is a credit to the Government to fund the services that Sydney Multicultural Community Services provide. Additionally, Australia has paved a way to services for Culturally and Linguistically Diverse specific services. Unfortunately, over the last 10 years we have seen an erosion of Culturally and Linguistically Diverse Services. Sydney Multicultural Community Services believe that a primary element of appropriate CALD service provision and care is to focus on reducing social isolation and cultural dislocation. Inclusive multicultural policy seeks to achieve circumstances in which individuals can effectively exercise their rights and experience positive health outcomes.

    Furthermore, cultural awareness and cultural appropriateness are two core components in the provision of services for the CALD population.


    Sydney MCS aim to foster links and understanding between Australian Citizens through community development. We believe that people from every background need to go beyond their historical identities while remaining connected to them. The future belongs to people who successfully negotiate local, ethnic and religious identities and, when necessary, transcend them. Nurturing values, participation and an open-minded approach to knowledge is what we all need to embrace multiculturalism.

     Rosa Loria

    Sydney MCS Director         


    Australian Review of Public Affairs, 12 July 2002 – 'The Australian Bill of Rights Debate: Putting the Cart Before the Horse?' by Louise Chappel, University of Sydney,

    New Internationalist, May 2009 – 'Into the vortex of Identity' by Dinyar Godrej,

    New Internationalist, May 2009 – 'To craft a new society' by Yasmin Alibhai-Brown,

  39. Sarah Heesom

    June 24, 2009 at 2:19 am

    The case for a Constitutionally entrenched Bill of Rights

    As a solicitor who has practised in the area of human rights for over 12 years, I fear that my contribution to the discussion on the need for enhanced human rights protection in Australia will be discounted on the grounds that I wish to promote my own financial interests, or that I am self-evidently a ‘bleeding-heart', or both.

    True, some lawyers will benefit financially from the increased recognition of human rights in Australian law.  While many junior and highly respected senior lawyers will continue to represent clients for no charge, some will earn a fee for their work.  Some of these lawyers will be financially motivated.  However most, if not all, will be more significantly motivated by a genuine desire to work in a system that recognises and protects the basic rights of all Australians.  I have never heard anti-terrorism or law and order advocates discounting the need for increased regulation on the grounds that it will benefit lawyers.  Such considerations would, quite properly, be considered incidental to the purpose of the legislative response.  So it must be with the legislated or Constitutional protection of human rights.

    Like many lawyers, my interest in human rights is founded on a passionate belief in freedom and equality, and the right of all people to be treated with dignity and respect, regardless of gender, background, ability, beliefs, or culture.  But I am not a ‘bleeding heart'.  I have on many occasions represented respondents in anti-discrimination proceedings, and I have seen first hand the damage that can be done by vexatious or misguided applicants who seek not to advance their human rights but to pursue an alternative agenda at significant cost to their opponent and the tax-payer.  My belief in the value of human rights protection is balanced unashamedly by my belief in the corresponding value of promoting personal responsibility.

    The opponents of a bill of rights or human rights act argue that the best and perhaps the only means of appropriately striking a balance between human rights and personal responsibility is by effecting lasting cultural change through education and example.  My parents are educators, and I have spent a significant part of my career working in and for the tertiary education system.  I have, as a consequence, the upmost respect for our teachers and for the many outstanding members of our community who seek to positively inform our ideas and to lead by good example.  Notwithstanding, I question the ability of education and example to bring about lasting cultural change in Australia, absent a clear and direct endorsement by our political leaders of the rightful place of human rights in all aspects and at all levels of government policy and law making.  While self-interested governments can use misinformation and political spin to cast desperate refugees as terrorists, and media outlets profit from inaccurate and sensationalist reporting, the power of education will remain an important but largely ineffective tool in capturing the attention of the Australian people.

    In my experience, Australians are, by and large, considerate and compassionate. Most Australians believe in giving others a ‘fair go' and, if unable to identify with the amorphous mass that is a particular ethnic group, have no difficulty empathising with individual members of that same ethnic group when given cause.  I believe that most Australian people take as a given the right of all Australians to access appropriate health care, to go to school, to live with their family, to work and to be treated fairly at work, and to maintain their culture and language.  I also believe that most Australians assume that they and their families have a Constitutional right to their freedom of movement, to be treated equally by the courts, to be assumed innocent until proven guilty, and to be protected from arbitrary arrest and detention.

    I support a Constitutionally entrenched bill of rights.  Notwithstanding the strength of our courts, and the health of our democracy, I believe that respect for human rights should be central to our understanding of who we are as a nation, and what we aspire to as a people.  I cherish my right to vote, and I believe ardently in our judicial system, but these powerful tools can only ever be employed retrospectively.  They provide a delayed and backward-looking response to human rights issues, forcing us to define ourselves as a nation not by what we aspire to, but by what we do not.  By voting out governments and seeking redress in the courts we determine not what we want to be, but only what we do not.

    Many Australians fear the term ‘human rights' because they do not understand it.  They associate human rights with lawyers and elitism, and with the fundamentalist supporters of minority views.  Human rights detractors have sought, successfully, to profit from that fear, warning that enhanced human rights protection will create a complaints culture and promote the rights of a few at the expense of many.  These warnings are deliberately misleading and unfounded.

    I have said that I believe equally in the value of human rights protection and the value of promoting personal responsibility.  These values are, in my opinion, not mutually exclusive but complimentary.  It is well recognised that knowledge and understanding encourage independence and self-sufficiency.  There is no reason why this principle should not apply to an informed Australian public, conversant in human rights language and knowledgeable, not only about their rights but also their responsibilities. We know from experience the value of the law as an educative tool.

    A discussion on the merits of a Constitutionally entrenched bill of rights would give Australians the opportunity to define their national culture and identity.  It would assist all Australians to understand why and how the human rights terms that they have learned to mistrust in fact embody the ‘fair go' ethos that is so deeply ingrained in the Australian psyche.  And a referendum would allow those who are unable to contribute to a national human rights consultation to nonetheless have their voices heard, in the form of a democratic vote. 

    I am saddened and deeply disappointed that the Committee's terms of reference preclude a recommendation for Constitutional reform.  I hope that the Committee will nonetheless find a means of giving voice to those, like me, who believe that human rights have their place at the core of our democratic society, and that all Australians would benefit from a Constitutionally entrenched bill of rights.



    • James South

      June 24, 2009 at 9:08 am

      Further comments on potential constitutional impediments

      Dear Phil, 

      Given that the Victorian Court of Appeal (in Momcilovic v R) will soon consider the meaning of s 32(1) of the Victorian Charter, I've given some further thought to the arguments made in my above post of 22 June. I've decided to modify those arguments by withdrawing my reliance on s 118 of the Constitution. Because s 118 is concerned with the recognition of laws (in other jurisdictions) rather than their meaning, it probably does not support my contention that the State and Commonwealth parliaments cannot depart from the legislative intention when interpreting future laws. Rather, I base that contention on the fact that the traditional view of the doctrine of implied repeal prevails in Australia. This means that the State and Commonwealth parliaments have the power to impliedly amend or repeal earlier laws. Those parliaments cannot prevent their successors from having or exercising that power. If a State or Commonwealth law manifests an intention to amend or repeal an earlier law, the courts must give effect to that intention. The only qualifications on that requirement are that it does not apply if the later law is invalid, or if its text is incapable of being interpreted consistently with the intention. Subject to those qualifications, the State and Commonwealth parliaments cannot require or empower the courts to depart from the legislative intention of the enacting parliament when interpreting future laws. For similar reasons, I contend that the same impediment also applies to the giving of interpretations of future laws that are not reasonably open. That's my view. Ultimately, of course, it's a matter for the courts to decide.

      • James South

        June 25, 2009 at 11:56 am

        A point of clarification


        One final comment. I should have qualified my above statement that the State and Commonwealth parliaments cannot prevent their successors from impliedly amending or repealing earlier laws. In fact, as you would be aware they can in some limited circumstances impose binding "manner and form" requirements under s 6 of the Australia Act 1986 to prevent implied amendments and repeals.

        However, s 6 applies only to the making of laws respecting the relevant State parliament's constitution, powers or procedure. For example, it would not apply to the making of a law imposing a "reverse onus" requirement.

        In any event, s 32(1) of the Victorian Charter doesn't prescribe any "manner and form" requirement. Moreover, none of the issues raised in this post in any way detracts from my basic contention that the State and Commonwealth parliaments cannot require or empower the courts to depart from the legislative intention of the enacting parliament when interpreting future laws. 

  40. johnniesazzler

    June 24, 2009 at 2:03 pm

    On the need or otherwise for an Australian Bill of Rights

    My case against the adoption of an Australian Bill or Charter of Rights can be summarised in the following points:-

    1) Societal disfunction can in a vast majority of cases be attributed to an erosion in the individual's capacity to accept responsibility for their actions and behaviours.  It is rarely the result of a lack of rights or of ambiguity regarding those rights.  Whilst the lead-in comments at the top of this blog mention both rights and responsibilities, the bill or charter being discussed is one pertaining only to an individual's rights, and would appear to do little to balance the situation by a commensurate focus on responsibilities.  Would the Openforum correspondents so enthusiastic about the enactment of a bill or charter of rights be quite so keen if it was entitled, "Charter of Responsibilities and Rights"?

    2) The law as currently executed, is anchored in legislation which is determined by parliament.  Reference to, or legal argument based upon, an article such as a bill of rights, introduces a mechanism by which it would be possible to use lawful processes to circumvent or distort the law.  It also allows for the judiciary to be drawn into a pseudo-political process, requiring judges to interpret the charter, and possibly, through the setting of precedents, to change how laws are applied, even if legislation is itself left undisturbed.  So decisions made under the influence of a bill of rights might gradually infect other legal analyses, in other courts, in unrelated cases.

    3) Whilst I have the greatest respect for judges whose duty it is to manage the application of the law, I do not believe they have any particular expertise or giftedness in the consideration of ethical or social issues, such as would be covered by a bill of rights.  A judge's opinion in these matters is only as valid as that of any other individual.  In contrast, our elected officials are entitled, indeed they are empowered through democratic process, to gauge the sentiment of the populace and approve legislation on the basis that it reflects society's will.  Application of a bill or charter of rights potentially undermines this essential aspect of our system of government.

    Australia has good governance and as tolerant and free a social environment as any in the world, and it occurs without a bill or charter of rights.  Such a bill could harm the process of law, and add uncertainty to the making of decisions based on legislation that our democratically elected parliament enacts.

    (The author is not a member of any political party, lobby group, or quasi-political organisation.  Being the son of migrant parents, he is a member of a social minority.  He is also colour-blind, both physically and in the racial metaphor.)

    • Bayne MacGregor

      June 25, 2009 at 2:41 pm

      Elected Representatives do NOT Safeguard Rights: Example

      Advocates of the current system say that current systems are sufficient to protect rights and that because representatives are elected this ensures they will safeguard rights. I have an example which disproves this is wrong.

      Same-Sex Marriage.

      See thing is this particular human right has majority support of the population. As this recent Galaxy Poll shows:

      However despite popular support the major parites have rejected full Human Rights in marriage for Same-sex partnerships.

      Will they be cast from office for this?

      Unlikely. You see  single issues rarely if ever decide elections, especially if all major parties support the abuse of a human right so the suppossed guarantee of human rights via elections does not succeed so long as there are other issues that will decide or be a factor in peoples voting choices!

      And thats for a popularly supported right! For a rights issue that there is less general support for there's no chance at all!

      So while representative democracy has its value as a tool for the people it is not a good mechanism for supporting or protecting all human rights let alone the majority wishes on human rights!

      In fact what is more likely to occur is that powerful lobby groups with sufficient leverage or influence that may even hold views contrary to the majority will trade support on another issue in exchange for the continued violation of a less powerful minorities human rights!

      And so clearly when even a human right with popular support of the majority of Australians, with nearly 60% of Australians and a massive 73% of Australians aged 16-24 in particular supporting this right then clearly the current system is no gurantee at all of human rights and any notions that through voting the public will regularly safeguard human rights of minorities and individuals by casting out those who made abusive laws is a ridiculous farce of Godzilla-sized proportions!

      Just this one issue alone demolishes the argument that the current system safeguards rights adequetely.

      So when it comes to all the other issues raised, some of them even more important than same-sex marriage, the rights abuses against the Disabled, the Mentally Ill, the Homeless, Indiginous Australians, Transgender, Intersex, Goths and Emos and other subcultures, Religious Minorities and Atheists and all the rest who suffer from discriminatory legislation or governments failure to fullfill it's obligation in legislation or beaureacracy to them the current system regarding human rights is broken, shattered, utterly flawed and the arguments in its favour as an adequate safeguard of rights are clearly without basis.

      Elected Representatives DO NOT Safeguard Human Rights in Australia!

      • Brett Paatsch

        June 25, 2009 at 3:38 pm

        Another example. Federal Parliament overriding

        the people of the Northern Territory over voluntary euthanasia.

        This was done with a "conscience vote", in which, apparently, the consciences that mattered (in the opinion of Federal Parliament) where the one's in Federal Parliament rather than the one's that made up a majority in the Northern Territory.

        Because the Northern Territory is a Territory and not a State, Federal Parliament was constitutionally able to override the decision of the Northern Territorians to grant themselves, democratically, a right to die. 

  41. Ernie

    June 25, 2009 at 5:08 pm

    Speak up Australia

    I , like many, am a "working class" Australian that has up to now been sitting on his hands watching various politicians and governments of Australia legislating our human rights away. Weilding a powerful propaganda machine, based on misinformation, not seen since the Second World war to implement their changes (Made easy by targeting a class of people who have made little comment in their defence). Waiting for our Civil Liberty Groups, Law Societies and the Judiciary , the academics of our society, the protectors of our rights, to stand up and repel the invasion of our rights by the Government.

    Well I've waited long enough, the people upstanding have been few, they deserve our full hearted support and help. Now thanks to this opportunity I can start to voice my opinion and I hope it will entice the many like me, to stop waiting, we must let our voices be heard.

    I stand against the Governments endeavours to legislate our freedom, our way of life and our childrens future rights away. Prosecute the crime not the people!

    South Australia – Serious and Organised Crime (Control) Act 2008

    New South Wales – Crimes (Criminal Organisations Control) Act 2009

    Queensland – Crime & Misconduct & Summary Offences Amendment Act 2009

    The Governments in various states have legislated and begun to legislate against bikies. All these pieces of legislation have been passed through the various parliaments as "Anti Bikie Laws" Strangeley enough Outlaw Motorcycle Club, Gang or even bikie is not mentioned in any of the Legislations. The fact is they are for all Australians.. In fact the South Australian Police commissioner revealed recently, 20th June 2009, that in fact these laws are for all.

    "organised crime" means activities of 2 or more persons associated together solely or partly for purposes in the pursuit of which 2 or more Schedule 1 offences are

    committed, the commission of each of which involves substantial planning and organisation;

    Western Australia-Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001

    These legislations are unwarranted as current legislations and our current legal system have more than enough power to deal with any of the situations that the respective Governments have suggested the need for. In fact if you look at the NSW legislation, (a legislation that went through both houses in one day, unbeleleivable). As the legislation was invoked there was a large amount of arrests made. None had anything to do with the new piece of legislation, it has not been acted on as yet, but with existing laws.

    These legislations even prohibit people from engaging in their employment in various trades and services. How can you on one hand brand them all criminals and then on the other deprive them of an income? Last time I looked it wasn't illegal to be in the motor repair industry . Surely it would be in our best interest that people can go to work to make an honest otherwise aren't we forcing them to make money from other means? After all everyone has to put food on the table.

    These legislations promote the use of secret evidence, conviction based on the "balance of probabilities" and control orders. These legislations have been enacted so as to create precedents for the use of secret evidence, "the burden of proof" and control orders so these principles can be leached into our current legal system. Based on the "burden of proof" and full disclosure. There tentacles will spread throughout our legal system

    Control orders and secret evidence had been, up to now, used in the UK. However a full panel of nine law lords made a unanimous decision recently that control orders could not be issued on secret evidence alone.

    In his judgment, Lord Hope of Craighead, said: "The principle that the accused has a right to know what is being alleged against him has a long pedigree . . . a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society does not tolerate such behavior." "the slow creep of complacency must be resisted" and that to protect the rule of law, courts must insist the person affected be told what is alleged against them.

    Lord Phillips of Worth Matravers, the senior law lord, said the case raised wider concern than the treatment of the three men. "If the wider public are to have confidence in the justice system, they need to see that justice is done rather than being asked to take it on trust,"  he said. "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him."

    Chris Huhne, the Liberal Democrat home affairs spokesman, said: "Today's unanimous ruling clearly states that control orders are a fundamental infringement of human rights and an affront to British justice. It is unacceptable to deny a person freedom without even telling them what they are suspected of.

    "We do not need to sacrifice the freedoms we have fought so hard for. We must not become what we are fighting. This discredited regime should be scrapped immediately. The government should focus instead on making it easier to prosecute terrorists by making intercept evidence available in court."

    There is, as one Law Lord explained, an easy way in which the Government could ensure that control orders are legal: opt out of the Convention on Human Rights. But the Government has been "unwilling to face up to whatever may be the political consequences" of taking that step..

    The Law Lords quoted the European Court: we are bound by its decisions, and that Court has elevated the right of the accused to be informed of the detailed evidence against him into an absolute principle that cannot be compromised.

    Lord Lloyd of Berwick, a former Law Lord who reviewed terror legislation in the 1990s, told peers "In particular the defendant must know, if he is to have a fair trial, the case that he has to meet".

    Secret evidence undermines the tradition of open justice this country is famous for. It is unreliable, unfair, undemocratic, unnecessary and damaging to the integrity of Australia's courts. I believe they contravene the following articles of the Universal declaration of Human Rights.

    Article 7 : All are equal before the law and are entitled without discrimination to

    equal protection of the law. All are entitled to equal protection against any

    discrimination in violation of this Declaration and against any incitement to such


    Article 10 : Everyone is entitled in full equality to a fair and public hearing by an

    independent and impartial tribunal, in the determination of his rights and

    obligations and of any criminal charge against him.

    Article 11 (1) : Everyone charged with a penal offence has the right to be presumed

    innocent until proven guilty according to law in a public trial at which he

    has had all the guarantees necessary for his defence.

    I also thought we processed people through our legal system and punished the guilty  accordingly, based on weight of evidence. They were then sentenced and hopefully rehabilitated. Their punishment dealt with they were encouraged to re-enter society. They are deemed to have paid their price for their indiscretion. Why should they be penalized for the rest of their life? These legislations penalize innocent people for the rest of their lives, guilt by association..

    I have experience with Outlaw Motorcycle Clubs. I have found, for the most part, they are as they portray. Like minded men with a passion for motorcycles and partying. As we know there is good and bad in all walks of life. We have corporate high flyers that drive our economy forwards whilst operating within safe boundaries and those that steal and mislead us. We have religious bodies that take care and promote faith amongst us and those among them that desicrate that faith. We have police that serve and protect us and of course we have those that destroy that in so many ways. Just like Mark Standen the assistant director for the NSW crime commission and his involvement with a 120 million dollar ice importation. Good and bad are in all walks of life.

    I have come to the conclusion, in order to safeguard our human rights, we need a Bill of Rights.

  42. Fr Frank Brennan

    June 25, 2009 at 11:35 pm

    One of the key issues

    One of the key issues tackled on this forum has been the 'real life' impact of a Charter for practical issues we have faced here in Australia and overseas. 

    I've noticed that the general argument against a charter or bill of rights (both here in the online discussion forum and more widely through the media and submissions) is based on the argument that by having such an instrument we would be leaving it to 'unelected' judges to 'determine' our rights. I'd like to encourage people to examine this argument more closely and debate it in more depth.

    The main issue to examine is the role of judges in relation to the law.

    If a charter of rights were to be enacted, it would be proposed by the Australian Government and enacted by the Australian Parliament. Judges would not 'determine' which rights would go into the Charter. A judge's role is to apply existing law in cases coming before them in the courts.  Were judges required to interpret laws consistently with human rights standards defined by the Australian Government, then they would exercise their ability to interpret as they do on a daily basis in matters relating to contract law, family law, administrative law and many other legal areas.  Interpreting a law consistently with human rights defined by the Government is unlikely to mean that "judges can make words mean the complete opposite." (ag02, 07/06/2009)

    On the other hand, this ability to interpret the law consistently with human rights may mean that judges can more easily apply their views.

    So the question is, if you are comfortable with judges applying principles of interpretation to family law cases, contract law cases, contract cases and others but you are not comfortable allowing judges to apply principles of interpretation when it comes to human rights that would be defined by the Australian Government, why or why not?

    Father Frank Brennan
    National Human Rights Consultation Committee

    • Brett Paatsch

      June 26, 2009 at 3:33 am

      Whenever judges err on human rights then they would do

      so overtly, their errors would be reported, they'd likely be newsworthy, and parliament would still retain the capacity to correct the judges error. 

      But the rights of minorities would at least have better sentinels.  In cool deliberation majorities ought be able to grant minorities that much. As a majority we ought be able to acknowledge that majorities are not omniscient but do get things wrong or overlook things in the heat of the moment. 



    • Bayne MacGregor

      June 26, 2009 at 3:53 am

      A Constitutional Bill of Rights Would be SUPREMELY Democratic

      Those opposing a constitutional bill of rights in this section, unlike a charter which is the main object of the consultation discussion, are raising the objection about unelected judges blah blah blah as if somehow a bill of rights would be undemocratic…

      BUT a constitutional Bill of Rights would only occur via a REFERENDUM!

      And on Human Rights Issues like the vote for Women and the recognition of Aboriginal and Torres Strait Islander Australians this is the only field where Australians normally pass referenda! Australia has shown it cares for Human Rights in this way, by direct vote of the populace.

      AND a consititutional Bill of Rights could further be ALTERED via a REFERENDUM!

      So if the people don't like the way it works they could review it, change it or scrap it alltogether if they so choose!

      Making it MORE Democratic than most decisions by Elected Officials!

      Because where elected officials are rarely ever held to account for a single decision but merely a comparison of a series of decisions in a choice between two often similar major parties in this process if a single human right proved to result in many unpopular decisions by judges then with sufficient call for it the wording of that single human right could be changed by referendum, or it could be excised, or a new right could be added, or the whole Bill of Rights scrapped! Allowing surgical precise changes in the future!

      And all that would need is the vote of the majority of Australian Voters!

      Now unless there is some miraculous refutation of these points I hereby declare the 'undemocratic judges' malarkey dead!

      I call upon all those people who have raised the false and missleading spectre of a phantom threat of Loss Of Democracy in a Constitutional bill of rights to repudiate them as a Constitutional Bill of Rights via a Referendum is neccessarily supremely democratic by that most democratic of all Australian political processes direct vote on the issue by the entire voting population!

      That said, I still favour a charter of rights as a short-term measure so that Australia could see it in functional operation and then after a decade or so vote to enshrine it into the Constitution or alter it or get rid of it via referendum as this worked in Canada and would give Australians a chance to make a truly Informed Decision.

  43. peter fritz

    June 26, 2009 at 12:07 am

    In principle support for a statutory bill or charter

    Words alone will never have the power to protect and promote human rights, how eloquent those words may be and which format they are presented in has little bearing on that reality. A deep and widespread community commitment to social change and equality is what's needed. With that in mind, I do support the introduction of statutory bill or charter of rights.

    I say this because I believe that in Australia today we do need some type of document which articulates our aspirations as a people which we can all refer to. The fact that a statutory charter would be largely symbolic is a benefit not a criticism of that model. A successful human rights document should provide an inspiration to good conduct for every citizen, whether a judge, CEO, policeman, or pre-schooler.

    Looking at society it is apparent that the roots of inequality are created by the reality that not all of us have the same level of access; access to community leaders, to government, to money, education and opportunities in general.

    It is true that certain minorities will always be more vulnerable than others; and that a national human rights document could play a positive role in promoting their access to an equality of rights.  However, designing the wording of such a document from the angle of protecting particular groups would be a mistake. That would result in something that was too prescriptive and too particular to our time.

    We need to approach the drafting of such a document in a manner similar to The US Declaration of Independence, with its sentiment that it is "self evident that all men are created equal".  The US model is itself proof that the document alone is not an answer to human rights protections; nevertheless I maintain it serves as an inspiration and as such is of value.

    Peter Fritz

  44. A Just Australia

    June 26, 2009 at 5:48 am

    A Just Australia Supports a Bill of Rights

    National Human Rights Online Consultation posting by A Just Australia

    A Just Australia – Who we represent

    A Just Australia (AJA) is a national organisation that campaigns for just and compassionate treatment of refugees and asylum seekers, consistent with the human rights standards that Australia has developed and endorsed.  We believe that Australia's policies toward refugees and asylum seekers should at all times reflect respect, decency and traditional Australian generosity to those in need, while advancing Australia's international standing and national interests.  Over 10,800 individuals, 120 non-government organisations and over 70 prominent Australian patrons support AJA.

    Why is a Bill of Rights relevant to asylum seeker policy?

    AJA supporters are concerned about asylum issues as a human rights issue, not just a migration issue.

    Human rights are universal – they belong to each and every human being regardless of whether they are citizens of our country or not.  Australia has ratified numerous international human rights treaties including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (and its Optional Protocol), the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Convention Relating to the Status of Refugees and many others.  As a signatory to these treaties, Australia has agreed to abide by the standards enshrined in the treaties for all people to be treated fairly with dignity and respect.

    AJA believes that Australia's lack of a Bill of Rights created the legislative environment that allowed the passage of laws that breached our human rights obligations, including:

    * Mandatory detention – indefinite and arbitrary – of ‘unlawful non-citizens' with no enforceable review or remedy, including the mandatory detention of children (see the report ‘An Absence of Human Rights: Children in Detention' by Dr Sev Ozdowski OAM, former Australian Human Rights Commissioner and Disability Discrimination Commissioner[i] or AJA's compilation of resources on mandatory detention[ii])

    * A lack of minimum standards for conditions in immigration detention, whereas all other systems of detention in Australia (e.g. prisons and mental institutions) have minimum standards codified into law.

    * Placing community-based asylum seekers on overly restrictive visas conditions (e.g. the '45-day rule') that enforced severe destitution, isolation and total dependency on churches and charities for basic survival needs

    *A lack of accountability and transparency over decisions by individual immigration officers.  In the 2005 Palmer Report[iii], it was noted that immigration officers were given "exceptional, even extraordinary powers…without adequate training, without proper management and oversight and with no genuine quality assurance and constraints of the exercise of these powers"

    * Denial of permanent protection to proven refugees through the creation and use of Temporary Protection Visas (TPVs).  In an address to the National Press Club in 2003, entitled Tampering with Asylum, Fr Frank Brennan described TPVs as "denying the right to travel and return to Australia (in breach of the Convention on Refugees), denying the right of family reunion and denying access to permanent protection and residence if the person transited a country such as Malaysia for seven days"[iv] [even though countries such as Malaysia openly admitted to returning asylum seekers without any assessment of protection needs].

    Sadly, there are many well-known examples of asylum seekers and/or immigration detainees who suffered under these laws and policies, including:

    * The indefinite detention of Mr Al-Kateb.  A stateless Palestinian from Kuwait, Mr Al-Kateb spent two years in immigration detention before asking to return to Kuwait or Gaza.  The Australian government asked four Middle Eastern countries to give Mr Al-Kateb a passport but they refused, so Mr Al-Kateb was left in detention.  Upon Mr Al-Kateb's appeal to the Federal Court, the Court was forced to decide that, under current Australian law, the Migration Act allowed for his indefinite detention.  The same ruling of indefinite detention was handed down on the same day to Mr Al Khafaji, an Iraqi national who similarly could not be removed from Australia.[v]

    * The case of Shayan Badraie.  Shayan and his family fled Iran and arrived in Australia in 2000 when Shayan was six years old.  They were held in the remote Woomera detention centre in South Australia for over a year before being transferred to Villawood detention centre in Sydney.  During his detention, Shayan witnessed riots, horrific suicide attempts and the use of tear gas and water cannons and endured prison-like conditions.  Shayan experienced severe psychological trauma, became mute, suffered night terrors and had to be medicated.  On eight occasions he was admitted to hospital to be rehydrated and drip-fed and each time he was returned to the detention centre against the advice of medical experts in the hospital.  Shayan and his family were eventually recognised as refugees, but not before Shayan had suffered major psychological trauma.  In 2002, the Human Rights and Equal Opportunity Commission found that Shayan's treatment had breached the UN Convention on the Rights of the Child.  In 2006, the government paid Shayan $400,000 in compensation.

    * The wrongful detention of Australian resident Cornelia Rau and the wrongful detention and deportation of Australian citizen Vivien Alvarez Solon, described in detail in the Palmer and Comrie reports of 2005.

    In fact, the UN Human Rights Committee "has concluded on at least seven occasions since 1997 that Australia's system of immigration detention constitutes a breach of various obligations under the International Covenant on Civil and Political Rights"[vi].

    In the last few years we have seen a significant improvement in the human rights standards of Australia's asylum policies, particularly since the end of 2007.  Nauru is no longer used as a detention and processing centre.  TPVs have been abolished in favour of permanent protection visas.  Detention is to be used as a ‘last resort'.   Improved community-support arrangements are in place.  The practice of charging ‘detention debts' has ended.

    However, many more reforms are required before Australia's asylum policies comply with out international human rights obligations, such as the abolition of existing excision laws that allow for offshore processing of asylum seekers on Christmas Island, away from the scrutiny of Australian law.  Many of the recent policy reforms are just that – reforms at the policy level only.  And without the safeguard of a Bill of Rights, which will ensure that any new proposed legislation must abide by human rights principles, it is entirely possible that at some point in the future we may again see the harsh and inhumane that characterised the ‘Tampa years'.  Just because the political wind has recently shifted to favour greater fairness and humanity in asylum policy, does not rule out a future shift of political winds where asylum seekers will once again be used as an election tool and as scapegoats.  We need the assurance of a Bill of Rights to permanently protect human rights.

    How a Bill of Rights will uphold human rights in asylum policy

    We quote the Australian Human Rights Commission[vii] in explaining how a Bill of Rights would ensure that human rights are upheld in our policies and laws on asylum seekers:

         "If Australia had a Human Rights Act, it could:

    • make the federal Parliament consider how laws impact on human rights – for example, parliament would need to consider whether a law requiring the mandatory detention of all ‘unlawful non-citizens' could be justified in light of the fundamental human rights breaches it leads to
    • make the federal government respect human rights when developing policy – for example, when deciding on the conditions attached to a bridging visa, the Department of Immigration would need to consider the human rights of asylum seekers to an adequate standard of living
    • make public servants respect human rights when making decisions and delivering services – for example, when deciding whether an immigration detainee can see a medical specialist, the Department of Immigration and detention service providers would need to consider the right of all persons to the highest attainable standard of physical and mental health
    • provide a range of enforceable remedies if a government department, such as the Department of Immigration, breached human rights."

    In conclusion

    "Protection of individual liberty is at the heart of Australian democracy.  When there exist powers that have the capacity to interfere with individual liberty they should be accompanied by checks and balances sufficient to engender public confidence that those powers are being exercised with integrity." (Palmer report, 2005)

    AJA believes that a Bill of Rights is fundamental to ensuring that these ‘checks and balances' are present in all areas of Australian law including those laws relating to asylum seekers.

    AJA supports the recommendations of expert organisations including the Australian Human Rights Commission, the Public Interest Advocacy Centre and the Human Rights Law Resource Centre who recommend the establishment of a comprehensive national Human Rights Act or Bill.  We believe that a Human Rights Act would provide a platform for reforming asylum legislation and policies that currently breach our human rights obligations, and for ensuring that any future proposed legislation abides by our human rights principles.

    Zhi Yan
    Acting National Coordinator
    A Just Australia




    [iii] Palmer Report (2005),

    [iv] See transcript of Tampering with Asylum by Fr Frank Brennan,


    [vi] Human Rights Law Resource Centre Submission: Review of Immigration Detention (2008), p. 6,

    [vii] Australian Human Rights Commission (2009).  Information sheet: Human rights and asylum seekers and refugees.  In: ‘Let's talk about rights' toolkit.

  45. Fr Frank Brennan

    June 26, 2009 at 7:31 am

    A vote of thanks

    As this forum draws to a close I'd like to extend my thanks to those who have participated. Thanks to Sally Rose, Olga Bodrova and the staff of Open Forum for running this for the National Human Rights Consultation. Thanks also to Tom Campbell, George Williams, Nicholas Barry and Phil Lynch for their expert input.

    Mostly though, thanks to all of you who have posted here. Your contributions are important and will go a long way towards contributing to what has been a phenomenal national debate over human rights. Never before has the Australian public been asked explicitly to tell the Government what they think about human rights. It's a landmark occasion and a great example of a healthy democracy that can ask itself, 'how are we going?' and 'how can we do better?'

    Whether it has been broad calls for better human rights awareness, specific pleas for assistance coming from Indigenous and other marginalised communities, or the cautioning voices of those who are concerned about the future direction of human rights protection in Australia – your views have been noted.

    For now though, this marks the close of the online forum component of the National Human Rights Consultation. After the public hearings held at Parliament House next week, we'll be battening down the hatches for the coming months to reflect upon and consider everything we've heard and present our report to Government. Keep an eye out on our website for updates on how we're going.

    Thanks again.

    Signing off.

    Father Frank Brennan
    National Human Rights Consultation Committee