discussion starter 2

AN AUSTRALIAN BILL OF RIGHTS

Introduction
Now we, the people, reflect on the state of our community and its commitment or otherwise to the basic rights which a democratic people should expect in the Twenty First Century. Obviously it would be impossible for us to literally draw up a Bill of Rights without the appropriate background in law. However, the people can bring together their key questions and concerns, their convictions about the main themes which need to be included in such a Bill

The following information and questions is to get you started in the discussion. Feel free to add your own questions and ideas. If the group wants to do some extra preparatory reading, Peter Breen's book Advance Australia Fair (Cape Byron Press 2000) is a very accessible gathering together of helpful information.

Please take notes of your conclusions and insights to share with other citizens. These will be brought together at the "Now we the people" Conference July 14-15, 2001

Basic information

A Bill of Rights
A Bill of Rights is one way of defining and describing what sort of country you wish to be. It is a way for the people to set fundamental guidelines for both an independent judiciary and democratically elected parliament - a type of bottom line for what the community expects of its servants - the judges and politicians. Some countries, like the United States of America have long had a Bill of Rights as the foundation of their country's life. Many other democracies, especially those which have had their origins or colonial relationships with the United Kingdom, have relied on what has been known as Common Law. This was the tradition of justice and rights which was developed over the centuries in countries like the United Kingdom.

Who has one
Over the last decades, almost all of these countries have moved away from that and developed their own forms of Bills of Rights. Countries like Canada, New Zealand, South Africa, Hongkong, India, some Pacific Islands all now have something like a Bill of Rights. The European Union has now agreed on a Convention of Human Rights and finally, in January 2000, the United Kingdom itself incorporated this Convention into its legal system. Australia now stands out as a country which lags behind the democratic world in attending to this safeguard for its life and its people. However, there is widespread public support for a Bill of Rights for Australia, but as yet no strong consensus on the content of a Bill of Rights. For example, a July 1993 survey by Professors Fletcher and Galligan found that 72.5% of NSW citizens supported a Bill of Rights.

Where would we place a Bill of Rights?
Most of the countries concerned have Bills of Rights attached to, or within, their constitutions. A few have this built into the actual legislature of the country. While having Bills of Rights within legislature makes it easier for changes to be made, it means that parliaments have the power to make those changes. Bills of Rights attached to constitutions can only be changed by the people. One idea is to have a regular review process built into the setting up of a constitutional Bill of Rights so that there is an evolutionary process.

Individual and / or corporate rights?
Some countries have Bills of Rights which are more focussed on individual rights and others have a broader base which include standards we expect in the formation of society itself and sometimes issues relating to the environment. Australia is now developing a complex and often state-based collection of laws which relate to discrimination, harassment and villification, bullying and other violations of human rights. It could be very helpful to bring all this together in a broad-based bill of rights upon which all of this legislation rests.

Have we tried to do this before?
There have been attempts to do this before, the most recent of which was initiated by Senator Gareth Evans in 1984. This attempt failed but resulted in the establishment of the Commission on Human Rights and Equal Opportunities, a notable achievement but one which stands without the backing of a Bill of Rights to which to appeal.

New factors to consider
In the term of the Howard Government, Australia's commitment to honour international human rights covenants and treaties has been significantly weakened. When we are challenged about this, it is said that we have a fine record of human rights in this country. While this may be so in some respects, our record on indigenous and racial human rights is anything but respectable. Another factor which faces us at this period in history is the globalisation of economic power and the capacity it has to override basic human and environmental rights in many contexts. This globalisation of economic power may well require of the international community an equal globalisation of human rights. In order to participate in this global endeavour, each country now needs to re-assess its human and environmental rights and give them legislative backing in order to prevent their undermining and overriding by global economic interests and to enter into discussion with other nation states around the world. This could be our contribution to the gradual building up of a commitment to human and environmental rights in the international community.

NOW FOR THE DISCUSSION

In this kit you will find examples of Bills of Rights from several other countries. Before you look at them, your group could consider some preliminary questions:

Are individual and community rights and expectations diminishing in Australia?

Rights of association?
No union members welcome in this workplace
Rights of assembly
Police may physically attack this demonstration without giving appropriate warnings or laying any charges
The right to shelter
Now 33,000 families without a home and many more single people homeless
Rights to free and compulsory education
Parents required to raise large funds to provide computers and other essential equipment
The right to a fair trial
The discretion of judges to decide a sentence is removed by mandatory sentencing Legal aid funds cut so that many people go to trial unrepresented by legal counsel
The right to a fair wage
Diminishing of awards and conditions through work contracts and casual employment.
The right to adequate health care
Public hospitals understaffed and resourced
The right to withhold labour
The right to strike
The right to privacy
Data bases being sold to the highest bidder for commercial purposes
The right to information and communications
A national public broadcaster, and universal access to telephone and internet services to avoid an information rich / poor divide Are there other rights which you can see diminishing?

HERE ARE SOME IDEAS FROM OTHER COUNTRIES

Read through the examples of Bills of Rights from Canada, South Africa and New Zealand.

Mark the sections which you feel are relevant and important for Australia.
As a group, if you were developing an Australian Bill of Rights, what would be important for you?

What main themes would you want there?
Is there anything else you want to feed into the wider discussion?

Canadian Bill of Rights

Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;

Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;

And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:

Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

PART I
BILL OF RIGHTS

1.
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
the right of the individual to equality before the law and the protection of the law;
freedom of religion;
freedom of speech;
freedom of assembly and of association; and
freedom of the press.

2.
Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

authorize or effect the arbitrary detention, imprisonment or exile of a person;
impose or authorize the imposition of cruel and unusual treatment or punishment; deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self-crimination or other constitutional safeguards;
deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations;
deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to the law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; and
deprive a person of the right to the assistance to an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

(1) Subject to subsection (2), the Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor General in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a Minister of the Crown in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

(2) A regulation need not be examined in accordance with subsection (1) if prior to being made it was examined as a proposed regulation in accordance with section 3 of the Statutory Instruments Act to ensure that it was not inconsistent with the purposes and provisions of this Part.

4.
The provisions of this Part shall be known as the Canadian Bill of Rights.

PART II

(1) Nothing in Part I shall be construed as to abrogate or abridge any human right or fundamental freedom not enumerated therein that may have exist in Canada at the commencement of this Act.

(2) The expression "law of Canada" in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that that is subject to be repealed, abolished or altered by the Parliament of Canada. (3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.

South African Bill of Rights- headings

Equality, Human dignity, Life
Freedom and security of the person
Slavery , servitude and forced labour
Freedom of religion, belief and opinion
Freedom of Expression
Assembly, demonstration, picket and petition
Freedom of association
Political rights
Citizenship
Freedom of movement and residence
Freedom of trade, occupation and profession
Labour relations
Environment
Property
Housing
Health care, food, water and social security
Children
Education
Language and culture
Cultural, religious and linguistic communities
Access to information
Just administrative action
Access to courts for Arrested, detained and accused persons
Limitation of rights
“The rights in the Bill of Rights may be limited only in terms of law and general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors …
States of Emergency
Enforcement of rights
Interpretation of Bill of Rights
1. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
2. must consider international law;
3. may consider foreign law.
  When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
  The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

New Zealand Bill of Rights Act 1990

An Act -

To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights

PART I
GENERAL PROVISIONS

2. Rights affirmed --- The rights and freedoms contained in this Bill of Rights are affirmed.

3. Application --- This Bill of Rights applies only to acts done ---

By the legislative, executive, or judicial branches of the government of New Zealand; or
By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

4. Other enactments not affected --- No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights) ,---

Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
Decline to apply any provision of the enactment--- by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5. Justified limitations --- Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6. Interpretation consistent with Bill of Rights to be preferred --- Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

7. Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights --- Where any Bill is introduced into the House of Representatives, the Attorney-General shall,---

In the case of a Government Bill, on the introduction of that Bill; or
In any other case, as soon as practicable after the introduction of the Bill, --- bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

PART II CIVIL AND POLITICAL RIGHTS
Life and Security of the Person

8. Right not to be deprived of life --- No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

9. Right not to be subjected to torture or cruel treatment --- Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

10. Right not to be subjected to medical or scientific experimentation --- Every person has the right not to be subjected to medical or scientific experimentation without that person's consent.

11. Right to refuse to undergo medical treatment --- Everyone has the right to refuse to undergo any medical treatment. Democratic and Civil Rights

12. Electoral rights --- Every New Zealand citizen who is of or over the age of 18 years ---

Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and
Is qualified for membership of the House of Representatives.

13. Freedom of thought, conscience, and religion --- Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14. Freedom of expression --- Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15. Manifestation of religion and belief --- Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

16. Freedom of peaceful assembly --- Everyone has the right to freedom of peaceful assembly.

17. Freedom of association --- Everyone has the right to freedom of association.

18. Freedom of movement ---

Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
Every New Zealand citizen has the right to enter New Zealand.
Everyone has the right to leave New Zealand.
No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.

Non-Discrimination and Minority Rights

19. Freedom from discrimination --- Everyone has the right to freedom from discrimination on the ground of colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief. Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief do not constitute discrimination.

20. Rights of minorities --- A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practice the religion, or to use the language, of that minority. Search, Arrest, and Detention

21. Unreasonable search and seizure ---Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

22. Liberty of the person --- Everyone has the right not to be arbitrarily arrested or detained.

23. Rights of persons arrested or detained ---

Shall be informed at the time of the arrest or detention of the reason for it; and
Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

Arrested; or
Detained under any enactment --- for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

24. Rights of persons charged --- Everyone who is charged with an offence ---

Shall be informed promptly and in detail of the nature and cause of the charge; and
Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
Shall have the right to consult and instruct a lawyer; and
Shall have the right to adequate time and facilities to prepare a defence; and
Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and
Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

25. Minimum standards of criminal procedure --- Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

The right to a fair and public hearing by an independent and impartial court:
The right to be tried without undue delay:
The right to be presumed innocent until proved guilty according to law:
The right not to be compelled to be a witness or to confess guilt:
The right to be present at the trial and to present a defence:
The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
The right, in the case of a child, to be dealt with in a manner that takes account of the child's age.

26. Retroactive penalties and double jeopardy ---

No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

27. Right to justice ---

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

PART III
MISCELLANEOUS PROVISIONS

28. Other rights and freedoms not affected --- An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.

29. Application to legal persons --- Except where the provisions of this Bill of Rights otherwise provide, the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.

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