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A Bill of Rights


old man emu
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In this era of the "Me" generation, there are calls for the Australian Parliament to enact a Bill of Rights. Most countries of the world now have bills of rights. Most of them have expressed them in their constitutions. Australia is, in this respect, now one of a small minority of nations which has rejected this idea.  A Bill of Rights often forms part of a country's Constitution.  Most of the principles of the Australian Constitution are derived from the British and United States constitutions.  The British constitution is not unwritten, but it has not rested upon written documents but upon the principle of the sovereignty of an elected Parliament. When the Australian constitution was being designed, there were three elements which marked it off from the United States precedent from which much was derived.

1. The fact that the Federal Commonwealth would be established under the Crown.

2. The fact that the Executive would sit in Parliament.

3. And the rejection of a notion of a general bill of rights.

 

Nowadays, a Bill of Rights has been created in many countries by the legal lawmaking actions of their governments. New Zealand has one. It's not a complicated document and sets out the Rights it enshrines with clear, everyday words.

https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html

 

I'm not against a Bill of Rights. In fact, I support one 95%. What about the other 50%?

 

There's always calls for people's Rights to be observed. Those Rights are usually enumerated in some record of democratic process. Legislation defines the responsibilities associated with the topic the legislation addresses - traffic laws, criminal laws, civil laws. However, a Bill of Rights is a blanket that covers all other laws. As the New Zealand Bill says,

Application

This Bill of Rights applies only to acts done—

(a)by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b)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.

 

None of it applies to the private citizen. It only applies to the functions of government. So, what are my Rights in relation to how I interact with other citizens in my private life? And as the balance, what are my responsibilities that are not defined by law, to other citizens ?

 

 

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As a country having a British heritage at its formation and continuing to use the Westminster system of government, we claim that our rights were enumerated by Magna Carta. The version we think of is the one of 1215, but the final version did not arrive until 1225. After that there was the Bill of Rights of 1688 (see https://en.wikipedia.org/wiki/Bill_of_Rights_1689 )which basically was an Act to define the rights of parliament in a monarchy.

 

Some of the Rights created by the Act were:

a) Levying taxes without grant of Parliament is illegal; (This against the Monarch)

b) It is the right of the subjects to petition the king, and prosecutions for such petitioning are illegal;

c) The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; (but says nothing about freedom of speech outside parliament.

d) Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

e) Promises of fines and forfeitures before conviction are illegal and void;

 

If you read the New Zealand Act, you will see that is only describes things that Parliament, and its operational arms cannot do. If a similar Act was introduced be Australia's Federal Government, there is no requirement for a State to comply as the Federal Act only applies to the Federal Government. Under Australia’s Constitution the Federal Parliament can make laws only on certain matters. These include: international and interstate trade; foreign affairs; defence; immigration; taxation; banking; insurance; marriage and divorce; currency and weights and measures; post and telecommunications; and invalid and old age pensions. The Australian States retain legislative powers over many areas such as local government, roads, hospitals and schools.

 

So all the whoo-ha about the Federal Parliament passing a Bill of Rights Act would not have any effect in the States.

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My memory in this area is waning, but I will wade in..

 

The Magna Carta and the 1689 Bill of Rights have long been superseded in the UK; I think by the time Australian federation took place, but don't quote me on that one. Today, it is the Human Rights Act, 1999 I think, which enshrines the European Convention of Human Rights in UK law, is the current "bill of rights". Note, the European Convention of Human Rights is not an EU instrument and the European Court of Human Rights, which sits in Strasbourg is not an organisation of the EU. However, to be an EU member, the country has to sign up to the ECHR, and that is now causing some issues in Poland.

 

20 hours ago, old man emu said:

None of it applies to the private citizen. It only applies to the functions of government. So, what are my Rights in relation to how I interact with other citizens in my private life? And as the balance, what are my responsibilities that are not defined by law, to other citizens ?

Bills of human rights normally only apply to the functions of governments because, it is normally governments that can use the law to abuse human rights. Rights and obligations between citizens are normally contained in the criminal law and civil law of torts. So, while, for example, it is perfectly legal for a policeman to detain someone in connection to an alleged offence, it is generally not allowed between private citizens (except, for example, for a citizen's arrest, and then there are strict limitations). The law of torts (which can also apply to governments) provides for remedies of wrongs, and plug the gaps in the criminal law. And there will be other branches of the law (e.g. employment law, health and safety law, road traffic law) that aims to avoid exploitation or abuse of people as part of their objectives.

 

14 hours ago, old man emu said:

Some of the Rights created by the Act were:

a) Levying taxes without grant of Parliament is illegal; (This against the Monarch)

b) It is the right of the subjects to petition the king, and prosecutions for such petitioning are illegal;

c) The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; (but says nothing about freedom of speech outside parliament.

d) Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

e) Promises of fines and forfeitures before conviction are illegal and void;

This is a perfect illustration of where there is a misconception of the freedoms brought by the Magna Carta and the 1689 Bill of Rights. They do not confer a bill of rights on everyone - just the nobility. Peasants and commoners/serfs had little, if any relevance in real life to the above, even though points d) and e) would appear to include them. The reality is, this only applied to the noblemen of the day.. Plebs... eh?

 

16 hours ago, facthunter said:

Look how much legal costs can be. No ordinary person really has access to the LAW.

How true this generally is. If we take ordinary person as lower and upper middle class, which is probably the vast majority of the population, then it is quite true. Legal aid is available to the poor in Australia (well, Victoria), but in limited circumstances. In teh UK, the government decied to mke legal aid available to all with no means test and virtually no restrictions - to make the law accessible. Well, that didn't last too long, as the cost back then ran into billions of £ in 1950's money - imagine how much that is today. It was quickly wound back. Like Aus, there is legal aid to the poor, and if you find yourself in a criminal proceeding, there are duty solicitors available at no cost, but you're not going to get any Lionel Richter or Frank Galbally from that pool. The golden rule applies especially to justice.

 

20 hours ago, old man emu said:

what are my responsibilities that are not defined by law, to other citizens ?

In common law systems (England/Wales based), there is no general duty of wone citizen to another. The law of obligations is a generic term that refers to specific branches of the law such as contract and quasi contracts (obligations). However, there is no general duty of care except when you are performing an action, and even then, the duty is limited to those that ought to be in your contemplation. For example, if you're driving a car, you have a duty of care to other road users and pedestrians (and probably property owners) not to drive in such a way that can cause them property damage or personal injury. However, if you are driving along the street and you see and accident, you are not under a general duty of care to stop and render assistance. Note, I use the term general duty of care and not absolute duty of care, because, of course, your state legislature may have legislated that one must stop and render assistance in this situation.

 

However in civil (Roman or European) legal systems, there is a general duty of care on its citizens. So, you would be compelled to stop and offer reasonable assistance without there having to be an explicit statutory instrument compelling you to.

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45 minutes ago, Jerry_Atrick said:

The Magna Carta and the 1689 Bill of Rights have long been superseded in the UK;

Quite true. But if you equate the Law to a living then those are the progenitors of modern Bills of Rights and Conventions.

 

As to the Magna Carta and 1688 Bill of Rights, Magna Carta is a 13th-century document enshrining the rights, privileges and liberties of the clergy and the nobles, and placing limits on the power of the crown. Most of the 63 clauses deal with the administration of justice, and the detail of feudal rights and customs. at the time it was primarily a practical solution to a political crisis which primarily served the interests of the highest ranks of feudal society by reasserting the power of custom to limit despotic behaviour by King John. Only three of the original clauses in Magna Carta are still law. By stating that no man could be arrested, imprisoned or have their possessions taken away except by “the lawful judgment of his equals or by the law of the land” the way was paved for trial by jury. The 1688 Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament. It says nothing of the rights of any other parts of society.

 

Most of the "rights" of those outside the ruling parties are the result of eons of customary rules for society. These rules have their origins with paleolithic groups. It is just that by our Age, they have been adapted to allow our type of society to operate. Basically, one could say the concept of Human Rights is the product of the two major anti-monarch revolutions of the late 18th Century - The United States and France.

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In the monarchy vote, we voted to remain as "subjects" which sounds bloody awful to me. I always wanted to ask Turnbull if he was an idiot, marketing-wise, or if he deliberately threw away the chance to make us free citizens by only pretending to argue the anti-monarchy case. Certainly I cringed at the dry pro-republic arguments as well as the cunning twisted pro-monarchy ads. Blind freddie could see which side was winning over the great unwashed.

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1 hour ago, Bruce Tuncks said:

In the monarchy vote, we voted to remain as "subjects" which sounds bloody awful to me.

Certainly a bit crook, but not as bad as being thought of as a 'human resource'. Shades of soylent green. Remember the good old days when companies had a personnel department. Sounds much more civilised.

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9 hours ago, Bruce Tuncks said:

In the monarchy vote, we voted to remain as "subjects" which sounds bloody awful to me. I always wanted to ask Turnbull if he was an idiot, marketing-wise, or if he deliberately threw away the chance to make us free citizens by only pretending to argue the anti-monarchy case. Certainly I cringed at the dry pro-republic arguments as well as the cunning twisted pro-monarchy ads. Blind freddie could see which side was winning over the great unwashed.

Subjects, plebs, commoners, serfs, etc.. all sounds pretty ordinary to me! However, I think the Queen of Australia (as that is what she is now) would hold her subjects in much higher esteem than a bloody PM or el presidento. I think it is a furphy that we would be freer under a republic.. North Korea has both a republic and a constitution, but somehow, I prefer a constitutional monarchy. In fact, I was watching a vid with Stephen Fry and he remarked that it appears that countries with constitutional monarchies seem to enjoy more rights and freedoms than those of republics. Of course, Aus is unique in that its monarch (no longer considered in Australia's constitution as the Queen of the UK & GB, but considered the Queen of Australia) doesn't live in the country she "reigns" over.

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Yep, those pommy monarchs learned from the french that you couldn't treat the commoners too badly or you get beheaded.

How funny it was that the french were , years afterwards, seen as fashionable! The very purpose of the aristocracy was thought to be to provide fashion examples. To this day, A friend of mine ( she is a monarchist I think) defends Lizzie Windsor on the grounds of her table manners. ( actually Lizzie Battenburg but that's another story )

Well, as I have said before, I am only here because they ( the poms ) were unable to kill my grandfather for being an "undisciplined " australian soldier in WW1

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4 hours ago, Jerry_Atrick said:

Subjects, plebs, commoners, serfs, etc.. all sounds pretty ordinary to me! However, I think the Queen of Australia (as that is what she is now) would hold her subjects in much higher esteem than a bloody PM or el presidento. I think it is a furphy that we would be freer under a republic.. North Korea has both a republic and a constitution, but somehow, I prefer a constitutional monarchy. In fact, I was watching a vid with Stephen Fry and he remarked that it appears that countries with constitutional monarchies seem to enjoy more rights and freedoms than those of republics.

Despite my long-held preference for a republic, I agree, Jerry. (Am I becoming a conservative old fart?)

 

The grubby money politics of Scomo’s mates has made me realise that Australia’s political traditions are being rapidly currupted by US-style lobbyists. We could do worse than have a Lizzie to quietly moderate extremes of the political pendulum or a Charles to publicly champion sustainablity. The next Royal generation is also doing a fair job as role models; better them than the horde of plastic influencers dominating our peoples’ attention. 

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To rule by Birthright has no logical correctness attached to it. Inbreeding affects all animals. Every  Group has the right to ELECT a representative to speak for them. Also by inference the ability to dismiss or not agree with the Chairman's ruling exists as a proper process.. Secret ballot is there to prevent reprisals for not voting the right way for some power seeker's liking.. In Trumpland for instance.. Nev

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22 minutes ago, Bruce Tuncks said:

Yep, those pommy monarchs learned from the French that you couldn't treat the commoners too badly or you get beheaded.

Actually, the British system of constitutional monarchy predates the French Revolution by 100 years. 1688 was the year of the Bill of Rights, noted earlier in this discussion, although the restoration of the monarchy occurred in 1660. It is interesting to note that following the English Civil War and the execution of Charles I in 1649, England was a republic until 1660. However, it's ruler was at first Oliver Cromwell, who judiciously rejected calls for him to be crowned as king, and took the republican title of Protector of the Commonwealth - a rose by any other name.

 

On 4 April 1660, Charles II issued the Declaration of Breda, in which he made several promises in relation to the reclamation of the crown of England.  On 8 May 1660, the Convention Parliament, proclaimed that King Charles II had been the lawful monarch since the execution of Charles I on 30 January 1649. Constitutionally, it was as if the years between 1642 (start of the English Civil War) and 1660 had never happened.

 

Since 1660, the government of the realm of the English Monarchy has run smoothly. Not that all its decisions were always correct, but any revolution by the people has been against the Parliament, not the Monarch. 

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7 minutes ago, facthunter said:

To rule by Birthright has no logical correctness attached to it. Inbreeding affects all animals…

True, Nev. They’ve had some crappy ones, but as Gough said of Lizzie, if we have to have a monarch, be glad you have this one.

I have no fear of future defects in the family line; they’ve finally accepted the need to broaden the gene pool.

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4 hours ago, Jerry_Atrick said:

Aus is unique in that its monarch (no longer considered in Australia's constitution as the Queen of the UK & GB, but considered the Queen of Australia) doesn't live in the country she "reigns" over.

I don't see any problem in this day and age of instant communication with a Head of State residing outside the physical boundaries of a realm. And in reality, our monarch has very few powers. They were virtually stripped by the British parliament. 

 

11 minutes ago, facthunter said:

To rule by Birthright has no logical correctness attached to it.

But our Monarch does not rule in the ancient sense. Our Monarch is our Head of State. From 1837 the British Monarch has been a symbol of consistency of governance. Increasingly during the 20th Century, no doubt due to film and radio, the Monarch has come down off the pedestal and tramped along the paving stones with their "subjects". And what do the subjects give in return? Affection and respect, because such a monarch represents security of existence for each and every subject.

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Whitlams problem was not with the Monarch, but with the representative of the monarch, who was put in place by the government.

What we have at the moment works and probably because the Queen does not have to be popular and win elections.

Our system has the PM as the most powerful person, but he can be dismissed by the monarch. It has only been done once and I reckon that was an aberration.

I really don't like the system which has someone who reigns over us, but I can remember George 6 as being a good monarch, who helped us live through the bad times of WW2. The Queen has in my opinion done a fantastic job. The future King, Charles has had many detractors and been the butt of many derogatory jokes, but I reckon he will be far better than the head of state that Turnbull was proposing. The reason we didn't become a republic was that the populace couldn't stomach another political appointee.

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I think that the biggest drawback those seeking the removal of the monarchy face is the question of how do we obtain a Head of State (a mainly ceremonial office). Over the past four or five years we have delved deeply into the method used by the United States of America to select theirs. We've been gob-smacked by the dirty deeds done, and not so dirt cheap, by candidates. Someone said here earlier that a hereditary chain of Head of State is a bad thing. However, we are very fortunate. The British People have had monarchs from the time of Charles II who, willingly, or under coercion, have passed the role of ruler to the people in the form of parliament. However, they have gained the necessary experience to act as Head of State. Can you name any state, democratic or dictatorial that does not exhibit respect to our Sovereign Lady? Yet the same countries will vilify the elected leaders of other countries mercilessly.

 

Do we want to become a country where our Head of State, for one thing, hasn't had a lifetime's education in carrying out the role of Head of State? Do we want our leadership to ebb and flow like the tides? What stability does it give a country to be having a tussle for leadership every few years, and lasting resentment amongst those whose candidate failed to win the fight? I'd rather have a stable hand on the Ship of State, and let the Jack Tars take care of the rigging. 

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The idea of a republic, given the current situation of Australia, is one of those ideas that is good in principle. Obviously, the head of state, ceremonial or not, should be one that is elected by the population of the state. However, in practice, it will cost a lot and buy very little.

 

It doesn't buy us independence; we are already an independent nation - definitely independent of Britain, politically. We are mor dependent on the USA than any other country, and we are adopting a more USA based culture than that of our British and European forefathers (in terms of "modern" Australia). When people in the UK worry they are heading in the American direction,  I remind them they have quite a way to go to catch up to Australia in that regard.

 

It won't improve our standing in the world. Even before we became fully independent of Britain, Australia was seen as an independent state and conducted its foreign affairs and business as if it were. I can't think of one time I have been in negotiations where it came into the conversation, contracts, and therefore minds, that non-Australians even contemplated we were part of the Empire. The world has moved on long ago from that. I have, however, been in negotiations where it was clear they Australia was thought of as an almost vassal state of the US, at least in things defence (ironic given we originally had the subs order placed with France). No one really knows that the queen is the head of the state, and no one cares. They do care about our performance by our government, which, as I recall, is elected.

 

There was some argument that it will make us feel better about ourselves - that we are no longer tied to Britain. How many of us (well, me, excepted) go around thinking about the British government or the queen in our daily dealings. Even when we had right to appeal to the Privy Council, how many of us concluded contracts where it was even contemplated that we would use the PC and not the High Court of Australia? If we become a republic, how much better will we really feel, even if there was some miraculously acceptable method of appointing one? Without a change of job description, the head of state will just be ceremonial, like the queen and GG is today. Even in 1973 (was it?), Kerr dismissed the government after it was unable to secure supply - a roadblock had to be moved. That is the reality of it. 

 

So, we introduce potential instability into a relatively stable and democratic government; we spend a god awful amount of money doing it, and we gain.... ? I can't work it out. We have two chambers of parliament that for the most part are able to function (I did not want to say work). When a circuit breaker is required, there is a means to do it, and  the circuit breaker has only been popped once. 

 

In practical terms it buys nothing.

 

There are only two reasons I would vote for a republic at this stage:

  • Constitutional meltdown in the form of excessive use of power; or, say someone like Prince Andrew looked like they were going  to get the gong. But to be honest, if that were the case, the UK would also be looking at the whole idea of a republic.
  • Reconciliation with Aboriginals/First Nation people.

I am no monarchist; just a pragmatist.

 

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1 hour ago, Jerry_Atrick said:

There are only two reasons I would vote for a republic at this stage:

  • Constitutional meltdown in the form of excessive use of power; 
  • Reconciliation with Aboriginals/First Nation people.

The first one is so very unlikely as to be discounted. 

 

I can't come at reconciliation as preached in Australia. I do, however, acknowledge that 19th Century colonial attitudes of European nations (and you can include the United States in relation to their indigenous populations) are not acceptable in the 21st Century. I have never been party to unacceptable behaviour towards indigenous people. Since my ancestors, one of whom came in chains, have been here from the first ones in the 1830's, can't I claim that I am indigenous to my Country? I am pretty sure that I know exactly where I was conceived and have always had a strong attachment, some might say spiritual, to the land surrounding that place.

 

I'm a firm believer that our people whom we call ab origines (from the beginning) have a wealth of knowledge to impart to we newcomers in agriculture, forestry, climate, anthropology of language and maybe spirituality. We have given ab origines the benefits of our culture's learning and experience, and well as encompassing them in our morality. 

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