Bob Carr on the wrongs of a bill of rights

In todays The Australian Bob Carr lays out his criticism of the current push in some quarters for an Australian Bill of Rights. One of his main fears is one of my main wishes, that any Bill or Rights should have something to say on our right to property. None the less in spite of opposing a set of rights that I’d actually be willing to advocate for, he does still make a reasonable case that anecdotally a Bill of Rights often does little to actually defend peoples rights. It is worth a read in spite of the disagreeable bits.

http://www.theaustralian.news.com.au/story/0,25197,25448539-5013871,00.html

I actually think we should have a Bill of Rights embedded within our constitution but I wouldn’t sign a blank cheque for this cause unless I knew ahead of time what actual rights we would be codifying.

20 thoughts on “Bob Carr on the wrongs of a bill of rights

  1. A bill of rights would just be a cut and paste of neo-commi U.N. style ‘Human Rights’ edicts. A bill of rights that even sounded halfway decent doesn’t mean much without being armed and vigilant.
    Nice article to remind me how vomit inducing Bob Carr is.

  2. Not necessarily Damien. If it’s positive rights we’re talking about, e.g. the crap that passes for rights in the UK these days, then I’d agree. Lots of wafty stuff about the right to education, the right to free healthcare, the right to be robbed at the point of a metaphorical gun to pay for screwed banks and anything and everything else the government thinks is a good idea, etc. And the big problem would not be that they’re full of neo-commie edicts. Even if it was all things that libertarians tend to agree with the main issue is that being positive rights they’re granted by the government and can in theory be taken away again later. A Bill Of Negative Rights is a different kettle of fish. The language would be more like the US BoR – lots of “shall not be infringed”, “no law shall be made that restricts” and so on. Carefully worded a Bill Of Rights should tie the hands, and preferably the feet and balls, of the government. Yes, courts can re-interpret rights and the trouble Americans have with the Second Amendment is a good example. But we can look at the various parts of the US BoR that are contentious and word them so as to remove any ambiguity. I suspect Madison et al did try to improve upon the English BoR, so to use gun ownership as an example, and since you mentioned it, phrases like

    the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

    (which have been invalidated now by making the law allow virtually nothing) became

    A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

    Since the Yanks seem to have all their trouble with that over interpretations of the meaning of militia and where the comma goes I’d suggest a completely unambiguous version could ditch the first 13 words entirely.

    The right of the people to keep and bear Arms shall not be infringed.

    Hard to misinterpret, eh? You could put in something about why but I think it’s better simply to establish each right that the government is not allowed to arbitrarily change or revoke, and to say so as clearly as possible. The Americans who wrote their BoR had the right idea but I feel lost their way a bit by putting in justifications that later generations could interpret creatively.

  3. Angry Exile,

    A vast increase in freedom minded folks that are fed up and willing to fight a civil war would have to precede anything like that. Just imagine all the parasitic control freak interests here and abroad that would have to give in peacefully for a document like that to mean anything in practice.

  4. Ah, well I didn’t say that it would be easy to achieve. Just that it needn’t be another collection of meaningless and/or socialist style +ve rights that increase dependancy on the state. But you’re right that the big hurdle is the need to win an election or a revolution, and initiating violence isn’t terribly libertarian and makes revolution a bit tricky to defend. Winning an election here seems be just as tricky since the Aussie system seems to work against small parties, though that might be just the impression I get from being fairly new to the country.

  5. What Exile said.

    I’m in favour of both a republic and a Bill of Rights. However, for the foreseeable future I’d be adamantly opposed to any campaign for either precisely because the importance of the republic bit is way overblown and Exile is right about what the content of the Bill of Rights they have in mind is likely to be.

    Moreover, Bob Carr is right in principle. In practical terms a Bill of Rights and a Constitution are just there to spell out what we hold as the right principles of political organisation. If we don’t hold their underlying intent as important then they will be ignored or reinterpreted this way and that to suit the prevailing ideology of the day. What Carr calls “tradition” is vital both to our liberties and to social systems that are opposed to our liberties. So, the reason why I wont support such campaigns for the foreseeable future is that the requisite public support for the spirit of what a proper Constitution should contain doesn’t exist.

    We still have an at-least partly reasonable “tradition,” but that is increasingly fragmented (hence the contest Carr speaks of), piss-poor in some places, and being overrun by anti-liberty sentiments. Thus I don’t trust the current milieu enough to put a loaded gun in the hands of politicians elected thereunder.

    JJM

  6. At Liberty and Society recently we discussed the importance of a Bill of Rights for Australia. I went in almost ambivalent, recognising the arguments for and against that have been mentioned here. But 2 points swayed my point of view to supporting a constitutional Bill of Rights:

    -Firstly, if a Bill of Rights were enshrined in the constitution it would not be easily passed. It would require a referendum, which means a majority nationally as well as a majority in 4 out of the 6 states. The difficulty in passing a Bill of Rights means that any constitutional Bill of Rights would have to be minimalist by nature and any superfluous rights like “the right to have a house, car and 2.5 kids” would not pass.

    -Secondly a Bill of Rights, as some people seem to forget (myself included) is about the role of government. A Bill of Rights should be about restricting government’s power over the people. A constitutional right to freedom of speech shouldn’t extend to private property. The very nature of a constitution is to explain the role of government, “government shall make no law restricting…” I actually think that a constitutional bill of rights would see less positive rights tossed around than acts of parliament.

  7. I maintain my position that a bill of rights defines the social structure of the nation; it defines what we believe in and the principles we will conduct ourselves by: socially and legally. Without a bill of rights we are nothing but an unprincipled tribe. We are saying what we consider right today we may consider wrong tomorrow, that we are unable to decide right from wrong in any meaningful enduring sense.

    Nearly everything Carr argues against pretty much forms my argument why a civilised society needs a bill of rights. Furthermore, Carr is blatantly wrong in some key areas, viz:

    But rights are an area of constant contest. A right to privacy can conflict with freedom of speech. Freedom of movement with a right to property (the Gypsies v the factory owner). Freedom of expression (a right to smoke) with a right to a pristine environment (the right to avoid others’ smoke). There’s always a balance to be achieved in the light of contemporary concerns and arguments.

    A set of rational rights, by definition, does not conflict. Privacy does not conflict with freedom of speech; Carr is being deliberately careless with his definitions. Privacy simply means you have no legal obligation to disclose certain private information and the authorities have limits on the information they can lawfully collect. This is no way infringes on freedom of speech. Carr fails to acknowledge that all rights in a civilised nation are granted on the basis that you are not hurting anyone else – that’s the whole point. If you want to interpret freedom of expression as one’s right to smoke tobacco then it does not need to impinge on anyone else’s right to clean air. Your right to smoke tobacco simply means you should be able to purchase this product, without excessive taxation or regulation, and consume it in a way that doesn’t affect anyone else i.e. your own home or an open space.

    Incidentally, Carr states that the fact that Australia is one of the few nations without a bill of rights is not an argument for such a bill i.e. ‘But Australia is the only country in the world without a charter, goes the complaint.’

    Yet his own party seems to use this line a lot when it’s convenient for them:

    Mr Rudd has previously said it is “time to bite the bullet” on paid maternity leave. Australia remains one of the few countries in the developed world with no compulsory parental leave scheme.

    A bill of negative natural rights, guaranteeing the freedoms of the people, articulating the social and legal principles of our country in a way that can be clearly understood and utilised by everyone, and limiting abuse by government is the sign of a civilised society. The truth is Australia isn’t that civilised. It’s quality of life comes from it’s abundance of natural wealth, and it’s relative peace comes from it’s geographic isolation, it’s social homogeneity, and a fortunate Western heritage – but certainly not the inherent morality, productivity, or intellect of the Australian people.

  8. Michael, Bob was just pointing out how unlikely it was that Australians would vote for any Bill of Rights, because we’d never agree on what was ‘fundamental’. I was surprised at his elegance, but he did run the state by doing and saying very little, after all. I think Carr the man might be a center-left type of politician, meaning a reasonable human being for a non-libertarian.
    And did anyone else raise an eyebrow at rioters in Athens being called right-wing anarchists? What mutant fascist-state anti-statist is that?

  9. I think we should have a bill of rights – albeit a very short one.

    There is no guarantee that the States will respect the rights the Commonwealth does.

    What provision is there that States give just compensation?

    Didn’t the Kelo decision in the US make the just compensation clause look weak and incomplete?

    I think we need an amendment, in the context of the original intent ensuring i) States/Shires respect rights as well as Commonwealth ii) explictly list explicit constitutional rights iii) explictly expand property rights in light of the Kelo case iv) explicitly list implicit rights v) explicitly list now typically lost common law rights and finally vi) a TABOR (relates to finance and trade powers already present).

    We wouldn’t be changing anything except for interpretation and scope of the constitution.

  10. Carr’s article doesn’t prove anything. It just presents misinformation.

    “A modest increase in judicial review was proposed in 1988. Voters were asked only to endorse trial by jury, freedom of religion and fair terms for property acquired by government, by inserting these as rights in the constitution. The referendum lost in every state and territory by votes of up to 75 per cent.”

    Did Carr characterise this correctly? I thought we already had those rights, both as explicit or implicit rights, at least Federally.

  11. Ideally I think we should have a Bill of Rights, but not in current circumstances.
    Firstly a majority of people would have to agree on the definition of a right.

    Currently the popular interpretation of a right is something like: A right is a legal granting to anything a majority of people regard as proper.

    So you would end up with rights for education, health, welfare etc – all of which contradict the right to property.

    I think a right is a moral principle defining and sanctioning human freedom of action in the context of a society. I take the US founding father’s definition of inalienable rights. It is then proper for the legal sciences to identify and implement these objectiviely identifiable rights.

    There is no such right to any material object such as money/school classes/health exams.
    There is only the right to pursue these objects freely without stopping others from pursuing them.

    The point Carr makes about privacy contradicing freedom of speech is the perfect example of why our society couldn’t achieve a proper bill of rights. Because people don’t know what a right is, and are easily sucked in by the framing of the argument.
    eg/ Some people would claim that they should have the right to “freedom of speech” say on an internet blog. When really what they want is the “right” to use another person’s property (the blog) in the way they see fit, with or without the consent of the owner – Claiming that the right to freedom of speech has been violated is false but our society probably wouldn’t understand this.
    This misunderstanding of rights, characterised by loose definitions (as pointed out by Michael Sutcliffe) and stolent concepts is why I think it would be better for capitalist minded people to better apply their efforts elsewhere.

  12. Any bill should have the first point that- Any government can only OFFER services and products, and cannot conscript or tax anyone, but any government can insist on payment for any service or product.
    Another point- Citizenship is a choice which an adult civilian can pay for, in exchange for voting privileges and preferential treatment from public facilities.

  13. The USA’s founding fathers thought the bill of rights was not needed. They thought that the people already has these rights. Writting down the rights as ammendments has proved to be a both extremely good and extremely bad. Good because the rights of people have been retained, bad because the rights of the people no mentioned have basically been lost. The bill of rights specifically mentions that it does not take away other rights of the people, but in reality this part is ignored. I have never heard of any case where a judge ruled something was unconstituational by default of it taking away an unwritten write.

    However I still think a bill of rights is needed. If you read Australias consitution it is basically a document outlining how legislators will work. The only right actually give to us is the right to free trade over state borders. This means legislators can pass any laws they want – and they have done this.

  14. Dear Bob … I am concerned that without a Bill of Rights, the majoritarianism of “democracy”, or the tyranny of the majority, will do what the Howard government did about HR for refugees and aboriginal peoples. We must have a charter that can be pointed to when legislation is brought forward. Parliamentarians are no more infallible than judges are, and cannot be replaced unless there’s an election. In the meantime … well, we know what we did, or what was done in our name. In peace … Roger Keyes.

  15. With the current debate/new Government report, I think this topic is worth revising. I think the ALS should make a submission based on my #10 above.

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