While Yulia Onsman raised some topical points in her call for a Bill of Rights, we should be reminded that the practicalities of such a move are a political, legal and administrative nightmare.
Laying my cards on the table as one who aspires to enter the legal profession, a successful move to enshrine a Bill of Rights would ensure me enough work till I am ready to be recycled as compost.
But do we need a bill of rights? I cannot help but consider that in these troubled times where conservative governments use the Middle-East's ever spreading troubles to further their own draconian doctrines (stricter immigration, detention centres, torture of POWS and police powers of arrest and limited access to lawyers for example) I am tempted to agree with Yulia.
While the ACT bill is commendable it must be seen as the first pebble thrown into the pond rather than a catch-all safety net. Hopefully the ripples in the pond will stir us away from the cricket and footy long enough to see what is at stake. If all states were to follow the ACT's lead it would be a start towards a federal bill so that we know we have protection.
So where to then for the campaign to enact a federal Bill of Rights? Australians are notorious for rejecting fundamental legal/political reform (we have only changed the constitution 7 times since Federation) and anything that distracts us from TV sport will be bound to founder due to the majority opting for the safe 'if it ain't broke, don't fix it' approach that the conservatives will push with their predictable campaign should a bill of rights ever come to be debated in Federal parliament.
A Tasmanian Bill (like the ACT charter) would be an impotent piece of legislation thanks to the omnipresence of Federal powers via whatever avenue they choose to pick i.e.. external affairs power, inconsistency power, s92, blah blah) plus what state government has not thrown up it hands at federal funding shortfalls and screamed 'its not our fault and what can we do'?
Hindsight tells us that legislation preserved in concrete does not move with ever changing values hence the US constitution and Bill of Rights gives freedom to pack an uzi in your pants to deal with that next bastard who does not give way to the right (note the 'right').
I know this must seem like I am throwing what seems to be vitally important into the too hard basket but unless we time this correctly, a bill of rights is bound to go the same way as Bob Hawke's constitutional reforms referendum that failed in the wake of a John Howard led scare campaign in 1988 (how could so called 'fair go' Australians vote 'no' to fair and just compensation to compulsory acquisition of their private property?). I agree that common law protection and statutes like the Racial Discrimination Act are vulnerable to either extremists in power or more realistically to a steady erosion by attrition. I nearly lost my voice when the current unmentionables in Canberra attempted to erode our liberties and rights because of the 2000 games security in Sydney by allowing the military the freedom to shoot first at citizens deemed a threat. (I know sport is taken seriously in this country but please...).
So the question for us all is which rights should we include? Murray Willcox (a former Federal Court judge) in his book An Australian Charter of Rights? suggests the fundamental freedoms of mobility, work, access to legal rights, expression, conscience, religion, opinion, belief, thought, expression, association and peaceful assembly just for starters.
But when the police beat the crap out of anti-government demonstrators, the government slash funding to legal aid when the battered demonstrators try to seek redress. How will a rights charter tackle funding cuts for services such as legal aid for the poor and dignity for the mentally afflicted? What freedom can be upheld without money and how do we tackle a federal government (like this one) which suppresses and bashes minority and vulnerable groups through funding cuts? Maybe I am taking freedom too far by advocating too good a life for the more unfortunate in our midst; but should basic dignity be a right?
The debate, should it arise (and I hope it does), will have to run the gauntlet of many interest groups wishing to have their peace of mind cemented in. Right to lifers and anti-abortionists will clash with pro-choicers and euthanasia advocates. Gun lobbyists will want to bear arms like Jesse James and racists will want to be able to scream 'black bastard' from the rostrum without fear of their personal rights being deprived whilst doing it. Trans-gender and gay people will have to battle the bigots.
Murray Wilcox tackled the thorny issue of whether a Bill of rights is anti-democratic and this may be a major sticking point in getting the debate to the vote. What if the majority really wants to screw the minorities and who denies the majority its democratic rights?
The courts will be charged with this question and boy would I like to be part of it. Bring it on.
Eddie Storace "works as a process operator at Zinifex Hobart Smelter (former Pasminco) and has worked in the mining industry for a total of twenty years in Tasmania. I am also an AWU delegate. In my spare time I am a fourth year law student and a member of the Tasmanian Greens since 1989. I stood in the 1992 State election on Di Hollister's ticket in the Braddon electorate and Di was elected for a third term (just) which was a milestone considering Braddon is traditionally Tasmania's most redneck electorate. I received 100 votes. I see my law studies as a ticket out of wearing a hardhat, doing shiftwork and showering with 20 big hairy blokes who hate Greens and steadfastly refuse to scrub my back. I am 44 years old and have two children and live in Sandy Bay with one of them and Helen."
RAPID RESPONSE EMAIL: What do you think?
If you bounce,
tuffinlindsay@hotmail.com
Tuesday, July 20, 2004