May 16, 2008

Horse 882 - The Bills of Rights

I was listening to the ABC yesterday and one particular lady who probably meant well and went all patriotic, wound up her sense of moral indignation and decided that it was unacceptable that Australia should make a stand on China's Human Rights record (in a discussion over the Olympics) when Australia itself didn't have a Bill of Rights. How dare a country have no Bill of Rights of its own! And wasn't it high time that we had one?

People agreed with her until someone quite rightly made the point that Australia doesn't have a "Bill of Rights" it more correctly has two!


It's more or less by historical accident but the story is worth noting. But first we need to jump back all the way to 99 years before British Settlement in Australia and 102 years before the US Constitution.

The state of England after the Civil War and the period of the Commonwealth under Cromwell had seen the bloodiest fighting on English soil, which it was hoped would ensure that the rights of free people weren't encroached upon by the monarch. Perhaps in that climate, simultaneous acts were passed in the English and Scottish Parliaments. These were the Bill of Rights (1689 - England) and the Claim of Right (1689 - Scotland). For the most part they were identical in operation, except that English Law was deemed to apply to England and the empire and so the Bill of Rights of 1689 would apply to Australia under force majure.

The basic tenets of the Bill of Rights 1689 are as follows:

Englishmen, as embodied by Parliament, possessed certain immutable civil and political rights. These include, but are not limited to:

- freedom from royal interference with the law
(the Sovereign was forbidden to establish his own courts or to act as a judge himself)
- freedom from taxation by royal prerogative, without agreement by Parliament
- freedom to petition the Monarch
- freedom from a peace-time standing army, without agreement by Parliament
(specifically conscription during times of peace, though this has been further defined by the British High Court that martial law is in opposition to this right)
- freedom to have arms for defence, suitable to their class status and as allowed by law
(Note the difference between an allowance and a right. This is very different in operation to the Second Amendment to the US Constitution)
- freedom to elect members of Parliament without interference from the Sovereign
- the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself
(the basis of modern parliamentary privilege)
- freedom from cruel and unusual punishments, and excessive bail
- freedom from fines and forfeitures without trial

- Roman Catholics could not be king or queen of England since "it hath been found by experience that it is inconsistent with the safety and welfare of this protestant kingdom to be governed by a papist prince". The Sovereign was required to swear a coronation oath to maintain the Protestant religion.
- William and Mary were the successors of James.
- Succession should pass to the heirs of Mary, then to Mary's sister Princess Anne of Denmark and her heirs, then to any heirs of William by a later marriage.
- The Sovereign was required to summon Parliament frequently, later reinforced by the Triennial Act 1694.

The term Englishmen doesn't necessarily mean someone from England here. Historically and under various adoption of phrase acts, has been taken to mean everyone under authority of the Crown (because prior to 1701 the "United Kingdom" didn't formally exist) - note that this currently includes Great Britain as well as British Commonwealth and specifically the named Dominions of New Zealand, Canada and Australia. Also, given that the colonies in America didn't declare independance until 1776, it means that in effect that the English Bill of Rights did apply in America before they wrote their own.

The phrase "Not limited to" is also noteworthy. When framing the Consitutition of Australia of 1900 (UK) it was decided that the practice of the American model had in fact limited the rights of American citizens under law to what was explicitly spelled out in the legislation. Since Australia was to grasp its own Westminster Parliament, those rights were deliberately left glib, just so that they would never be challenged at law because the law itself was unwritten.

I note that this should form part of the basis of the rule of law in Australia, since under the Statute of Westminster Act 1931, all acts after 1931 are independant within the various countries but that the rule of law which existed, still did so unless subsquently changed.

What this means in effect is that since there has been no Bill of Rights passed by an Australian parliament after 1931, then the existing one remains in operation.

However, the second Bill of Rights which is applicable in Australia is quite wide ranging. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights - found here:

It frames the general rights of the individual and again as a result of one of the bloodiest conflicts that the world has ever seen. Australia was one of the chairs that drew up this document and was most vocal in trying to get nations to sign up to it.

So miss patriotic lady whilst it might be "high time that we had" a Bill of Rights, the fact is that we already have two, but as to the question of Australia making a stand on China's Human Rights record... we should do that anyway surely?

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