Regular readers of this blog will take note that I refer to instruments such as the Bill Of Rights Act 1689, the Universal Declaration of Human Rights 1945, and the Bill Of Rights as attached to the US Constitution and point to the fact that we already have legislation and principles which should define and guide society, with a degree of regularity. I very much like the common law principle that rights are deemed to exist unless hedged in by law and see no benefit in defining rights at all. I my not very well paid opinion, the explicit spelling out of human rights, limits people's imagination to the letter of the law and no more. I think that defining what people's rights are, paradoxically narrows rather than broadens the scope of what they could and should be. I find it disgusting for instance that in the 228 years since the passage of the US Constitution, there have only been 5 rights added to the list and they were only begun to be added after one of the bloodiest conflicts in history, and to correct the mistakes of three score and sixteen years before. No new rights such as the right to adequate health care or housing were added, even though Franklin D Roosevelt wanted to, and those questions are still being argued over today.
My great fear is that Mr Wilkie's bill will pass into law without due diligence and questioning being applied to it. I already have been through it in its entirety and have found for myself that more than 95% of it is just plain redundant, some of it actually removes existing rights and protections and actually causes harm, and the one Article contained in the specific Bill Of Rights which previously wasn't covered by already existing international treaties and conventions, is so vague as to be useless and pointless.
The "Australian Bill of Rights" is found in Section 19 of the Australian Bill of Rights Bill 2017 and I find it curious that it only "Seeks to give effect to certain provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child by: declaring an Australian Bill of Rights" rather than all of them.
I've been through the text of Mr Wilkie's bill, and have complied some notes which mostly amounts to a series of redundancies; which says to me that the bill is quite rubbish.
19 Australian Bill of Rights
The Australian Bill of Rights is as follows:
Australian Bill of Rights
Division 1—Guarantee of rights and freedoms
Article 1
Entitlement to rights and freedoms without distinction
Every person is entitled to equality before the law and to the human rights and fundamental freedoms set out in this Bill of Rights irrespective of distinctions such as race, colour, sex, intersex status, sexual orientation, gender identity, language, religion, political or other opinion, national or social origin, property, birth, mental or physical disability or other status.
This is basically covered by Article 6 of the UDHR and is therefore redundant. Article 6 is more elegant because it is far simpler to read and doesn't need to qualify its scope:
Everyone has the right to recognition everywhere as a person before the law
- Article 6, UDHR.
Article 2
Effect of Bill of Rights on existing rights and freedoms
A right or freedom existing under, or recognised by, any other law may not be taken to have been diminished or derogated from by reason only that the right or freedom is not set out in this Bill of Rights.
This is an standard interpretation of law as it is already. This Article is therefore redundant.
Article 3
Permissible limitations
(1) The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.
(2) A right or freedom set out in this Bill of Rights may not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Right here, the Act is limiting the ability and scope of the Bill of Rights Act. That in itself is both dangerous and stupid and should be struck off.
Division 2—Fundamental freedoms
Article 4
Freedom of expression
(1) Every person has the right to freedom of expression, including the freedom of the press and other media of communication, and the freedom to seek, receive and impart ideas or information of any kind in any form, without interference and regardless of frontiers.
(2) A law may not authorise a person or group to express information that advocates national, racial or religious hatred and incites discrimination, hostility or violence.
This is basically covered by Article 19 of the UDHR and is therefore redundant.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- Article 19, UDHR.
Part 2 though, goes on to extend provisions which are already contained within such acts as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 etc. This Article is therefore redundant.
Article 5
Freedom of thought and conscience
Every person has the right to freedom of thought and conscience, including the right to hold opinions without interference.
This is basically covered by Article 19 of the UDHR and is therefore redundant.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
- Article 19, UDHR.
Article 6
Freedom to have or adopt a religion or belief
Every person has the right to have or adopt a religion or belief of that person’s choice without coercion of any kind, and to manifest that religion or belief in worship, observance, practice and teaching, whether individually or in community with others and whether in public or in private.
This is also covered by Article 19 of the UDHR and is therefore redundant.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
- Article 19, UDHR.
Article 7
Right of peaceful assembly
Every person has the right of peaceful assembly.
This is basically covered by Article 20 (1) of the UDHR and is therefore redundant.
(1) Everyone has the right to freedom of peaceful assembly and association.
- Article 20(1), UDHR.
Article 8
Freedom of association
Every person has the right to freedom of association with others, including the right to form and join trade unions for the protection of that person’s interests.
This is also covered by Article 20 (1) of the UDHR and is therefore redundant. See above.
(1) Everyone has the right to freedom of peaceful assembly and association.
- Article 20(1), UDHR.
Article 20 (2) goes one step further though:
(2) No one may be compelled to belong to an association.
- Article 20(2), UDHR.
On one hand, Articles 7 & 8 of this Bill Of Rights spell out the positive right but they forget about the negative right which accompanies it.
Division 3—Equality rights
Article 9
Equal protection of the law
(1) Every person has the right without any discrimination to the equal protection of the law.
(2) Nothing in this Bill of Rights affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class.
How is this different to Article 1 of this same act?
Article 10
Rights of Indigenous peoples
Aboriginal and Torres Strait Islander people have the following individual and collective rights and responsibilities:
(a) the right to revive, maintain and develop their ethnic and cultural characteristics and identities, including:
(i) their religion and spiritual development; and
(ii) their language and educational institutions;
(b) the right to claim native title for Indigenous lands and natural resources based on the recognition of their prior ownership;
(c) the right to manage their own affairs to the greatest possible extent while enjoying all the rights that other Australian citizens have in the political, economic, social and cultural life of Australia;
(d) the right to obtain reasonable financial and technical assistance from the Government to pursue their political, economic, social and cultural development in a spirit of co existence with other Australian citizens and in conditions of freedom and dignity;
(e) the responsibility to respect their laws and customs and to promote Indigenous culture.
This is covered by the United Nations Declaration on the Rights of Indigenous Peoples and is therefore redundant.
Article 11
Rights of minority groups
Persons who belong to an ethnic, religious or linguistic minority have the right, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Again, this is is covered by DRIPS but is spelled out at greater length by Articles 11, 12, 13 and 14 of that same United Nations Declaration; so this is also therefore redundant.
1. Indigenous peoples have the right to practise and revitalize their
cultural traditions and customs. This includes the right to maintain,
protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies, technologies and visual and performing arts
and literature.
2. States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and spiritual
property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs.
- Article 11, DRIPS
1. Indigenous peoples have the right to manifest, practise, develop
and teach their spiritual and religious traditions, customs and ceremonies;
the right to maintain, protect, and have access in privacy
to their religious and cultural sites; the right to the use and control
of their ceremonial objects; and the right to the repatriation of their
human remains.
2. States shall seek to enable the access and/or repatriation of ceremonial
objects and human remains in their possession through fair,
transparent and effective mechanisms developed in conjunction with
indigenous peoples concerned.
- Article 12, DRIPS
1. Indigenous peoples have the right to revitalize, use, develop and
transmit to future generations their histories, languages, oral traditions,
philosophies, writing systems and literatures, and to designate
and retain their own names for communities, places and persons.
2. States shall take effective measures to ensure that this right is
protected and also to ensure that indigenous peoples can understand
and be understood in political, legal and administrative proceedings,
where necessary through the provision of interpretation or by other
appropriate means.
- Article 13, DRIPS
1. Indigenous peoples have the right to establish and control their
educational systems and institutions providing education in their
own languages, in a manner appropriate to their cultural methods of
teaching and learning.
2. Indigenous individuals, particularly children, have the right to
all levels and forms of education of the State without discrimination.
3. States shall, in conjunction with indigenous peoples, take effective
measures, in order for indigenous individuals, particularly children,
including those living outside their communities, to have
access, when possible, to an education in their own culture and provided
in their own language.
- Article 14, DRIPS
Division 4—Civil and democratic rights
Article 12
Right to life
(1) From birth, every human being has the inherent right to life and no person may be arbitrarily deprived of life.
(2) Every person has the right to bodily and psychological integrity.
(3) Every person has the right to end his or her life.
This one is really really sneaky. The preamble to the Convention On The Rights Of The Child says:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth"
So suddenly we go from a place where a child who had an inherent right to life before this Act, now does not. Furthermore, in losing their inherent right to life, they also lose the inherent right to any medical care that they would have otherwise been entitled to. Part 2 goes on to further clarify this by framing a right to bodily integrity, which is the usual cornerstone for claiming a right for a mother to have an abortion.
So although in Part 1, everyone has an inherent right to life, that right will only be conferred once they've been born, and before that point, the ability to be arbitrarily deprived of that life is cancelled and destroyed by Part 2.
Part 3 states that there is a right for someone to end their own life. Think about that for a second. Suicide is now a moral good and insurance companies and children who are looking to inherit from their parents, are by operation of this, tacitly empowered to use deception and duress to get an old person to sign the necessary paperwork to pop their clogs. How is this in any way acceptable?
Article 13
Liberty and security of person
(1) Every person has the right to liberty and security of person.
(2) No law may authorise the arbitrary arrest, detention or imprisonment of any person.
(3) No person may be deprived of liberty except on such grounds, and in accordance with such procedures, as are established by law.
(4) No person may be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Part 1 is covered by Article 3 of the UDHR and is therefore redundant.
Everyone has the right to life, liberty and security of person.
- Article 3, UDHR.
Part 2 is covered by Article 9 of the UDHR and is therefore redundant.
No one shall be subjected to arbitrary arrest, detention or exile.
- Article 9, UDHR.
Part 3 is covered by Article 11 of the UDHR and is therefore redundant.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
- Article 11 (1), UDHR.
Part 4 is covered by Articles 5, 6, 7, 8, 9, 10 and 11 of the UDHR and is therefore redundant.
Article 14
No torture or inhuman treatment and no experimentation without consent
(1) No person may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
(2) No person may be subjected to medical or scientific experimentation without that person’s free consent.
(3) Every person has the right to refuse any medical treatment for themselves.
Part 1 is covered by Article 5 of the UDHR and is therefore redundant.
Part 2 is covered by Article 5 of the UDHR and is therefore redundant.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- Article 5, UDHR.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- Article 25(1), UDHR.
Article 15
Slavery and servitude
No person may be held in slavery or servitude or be required to perform forced or compulsory labour.
This is covered by Article 4 of the UDHR and is therefore redundant.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
- Article 4, UDHR.
What makes this doubly redundant in the framework of Australian law was the passage of the Abolition of the Slave Trade Act 1807 and the Slavery Abolition Act 1833. The right not to be held in slavery was already protected by the abolition of slavery by an Act of Parliament.
Article 16
Right of participation in public life
Every Australian citizen has the right and will have the opportunity:
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives; and
(b) to vote and to be elected at genuine periodic elections, which will be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors; and
(c) to have access on general terms of equality to public employment.
Part a is covered by Article 21 of the UDHR and is therefore redundant.
Part b is covered by Article 21(3) of the UDHR and is therefore redundant.
Part c is covered by Article 21(2) of the UDHR and is therefore redundant.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
- Article 21, UDHR.
I know that this is splitting hairs but given that this is a piece of proposed legislation, that seems only fair and just to me. Currently, the regulations of the Electoral Act 1918, define voting not as a right but as a duty. If this proposed legislation reduces voting to a mere right rather than an obligation of the citizenry, then this opens the door for those who would wish to narrow the franchise through voluntary inaction.
I think that there are some things which should not be rights but obligations which are enforced by law, because citizens of a nation should be legally bound to one another in that nationhood; these include voting, military service in times of war, jury duty, and the obligation to follow the law and pay taxes.
Article 17
Right to marry and to found a family
Recognising that the family is the natural and fundamental group unit of society and is entitled to protection by society and the Commonwealth or State Government:
(a) every person of marriageable age has the right to marry and to found a family; and
(b) no marriage may be entered into without the free and full consent of the intending spouses.
Part a is covered by Article 16 of the UDHR and is therefore redundant.
Part b is covered by Article 16 of the UDHR and is therefore redundant.
The opening part of this is also covered by Article 16 of the UDHR and is therefore redundant.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
- Article 16, UDHR.
Article 18
Rights of the child
Recognising that every child has the right to such measures of protection as are required by the child’s age:
(a) every child has the fundamental rights and freedoms set out in this Bill of Rights to the greatest extent compatible with the age of the individual child; and
(b) every child will be registered immediately after birth and will have a name; and
(c) every child has the right to acquire a nationality; and
(d)every child will be protected from economic and social exploitation. Their employment under set age limits, or in work harmful to their morals or health, dangerous to life or likely to hamper their normal development should be prohibited and punishable by law.
Again, the. Convention On The Rights Of The Child already covers this and as before, this article does not confer any of these rights to a child before they have been born, as the international Convention previously did. This sounds good in principle but is destructive in the means by which it falls short of the existing Convention.
Article 19
Rights of movement within Australia
(1) Every person lawfully in Australia has the right to freedom of movement and choice of residence.
(2) A person who is lawfully in Australia but is not an Australian citizen may not be required to leave Australia except on such grounds and in accordance with such procedures as are established by law.
Part a is covered by Article 13 of the UDHR and is therefore redundant.
Part b is covered by Article 13 of the UDHR and is therefore redundant.
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
- Article 13, UDHR.
Article 20
Right to enter Australia
(1) Every Australian citizen has the right to enter Australia.
(2) A law may restrict a citizen’s right to enter if that person is under legal investigation or sentence in another country.
Part 1 is covered by Article 13 of the UDHR and is therefore redundant. See Above.
Part 2 has the potential to violate the Convention on Refugees and Stateless Persons and Article 13 of the UDHR. This should be eliminated entirely.
Article 21
Right to leave Australia
(1) Every person has the right to leave Australia.
(2) A law may restrict a person’s right to leave if that person is under legal investigation or sentence in Australia.
Part 1 is covered by Article 13 of the UDHR and is therefore redundant. See above.
Part 2 is just a statement of common law principles and is therefore redundant.
Division 5—Economic and social rights
Article 22
Property
(1) Every natural or legal person has the right to peacefully enjoy the person’s possessions. No person may be deprived of the person’s possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) This right does not impair the right of the Commonwealth or State Government to enforce laws it considers necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Part 1 is covered by Article 17 of the UDHR and is therefore redundant
Part 2 is covered by Article 17 of the UDHR and is therefore redundant
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
- Article 17, UDHR.
Article 23
Standard of living
(1) Every person has the right to an adequate standard of living, including:
(a) sufficient food and water; and
(b) clothing and housing; and
(c) access to health care services; and
(d)access to social security, including if they are unable to support themselves and their dependants, appropriate social assistance.
(2) No one may be refused emergency medical treatment.
(3) The Commonwealth or State Government will take reasonable legislative and other measures to provide for the progressive realisation of each of these rights.
This entire Article is covered by Article 25 of the UDHR and is therefore redundant.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
- Article 25, UDHR.
I'd go so far as to suggest that Part 2 of Article 25 of the UDHR is better expressed and because it specifically upholds motherhood and childhood as being vulnerable and requiring special protection, it is a nobler thing.
Article 24
Right to live in a safe society
Every person has the individual and collective right to live in a safe society and the collective and individual responsibility to act in a peaceful and non violent way.
This entire Article is covered by Article 29 of the UDHR and is therefore redundant. This article is also the natural implication of every single piece of legislation and is therefore doubly redundant.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- Article 29 (1 and 2), UDHR.
Article 25
Right to adequate child care
A parent or other person responsible for the care of a child has the right of reasonable access to adequate child care facilities and the responsibility to ensure that the child is properly cared for.
This is covered by Article 3 of the Convention on the Rights of the Child and is therefore redundant.
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
- Article 3, CRC
Article 26
Right to education
No person may be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the Commonwealth or State Government will respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
This is covered by Article 26(1) of the UDHR and is therefore redundant.
(1)Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education
shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
- Article 26(1), UDHR.
This also expanded upon by Articles 23, 28 and 29 of the Convention on the Rights of the Child and is therefore redundant.
Work
(1)Every person has the right to work including the right to the opportunity to gain reasonable payment for work the person freely chooses or accepts.
(2) Every person has the right to just and favourable conditions of work including:
(a) fair and reasonable payment for work so as to provide a decent living as a minimum; and
(b) safe and healthy working conditions; and
(c) rest, leisure and reasonable limitation of working hours and periodic and public holidays with pay.
This entire Article is covered by Articles 23 and 24 of the UDHR and is therefore redundant.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
- Article 23, UDHR.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
- Article 24, UDHR.
Article 28
Individual and collective development
Every person has the right to participate in and contribute to individual and collective economic, social and cultural development including:
(a) taking part in cultural life; and
(b) enjoying the benefits of scientific progress and its applications; and
(c) benefiting from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which the person is the author.
This entire Article is covered by Article 27 of the UDHR and is therefore redundant.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
- Article 27, UDHR.
Article 29
Environment
(1) Every person has the right to an environment that is not harmful to their health or well being.
(2) The Commonwealth or State Government will take appropriate steps to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures that:
(a) prevent pollution and ecological degradation; and
(b) promote conservation; and
(c) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Out of 29 Articles, this is the first one which isn't covered by a specific existing international convention or treaty. There are however more than 3,000 international environmental instruments which are enforceable; ranging from the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, Convention to Combat Desertification, International Convention for the Prevention of Pollution from Ships, Protocol on Environmental Protection to the Antarctic Treaty etc.
I like this.
Division 6—Legal rights
Article 30
Right to protection from arbitrary interference
Every person has the right to:
(a) protection of privacy, family, home and correspondence from arbitrary or unlawful interference; and
(b) protection from unlawful attacks on honour and reputation.
This entire Article is covered by Article 12 of the UDHR and is therefore redundant.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
- Article 12, UDHR.
Article 31
Right to procedural fairness
(1) Every person has the right to have a decision by a tribunal or other public authority that may affect the person’s rights made in a way that observes the rules of procedural fairness.
(2) The rules of procedural fairness include:
(a) the rule that a person whose interests may be adversely affected by a decision will be given a reasonable opportunity to present a case; and
(b) the rule that the tribunal or authority will be impartial in the matter to be decided.
This Article is covered by Article 11(1) of the UDHR and is therefore redundant.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
- Article 11(1), UDHR.
Article 32
Right to legal assistance
Every person has the right to reasonable access to legal aid and the responsibility to accept assistance from a suitably qualified representative appointed by a court.
This Article is also covered by Article 11 of the UDHR and is therefore redundant. See Above.
This Article is also covered by Article 14(d) of the International Covenant on Civil and Political Rights and is therefore redundant.
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- Article 14(d), ICCPR.
Article 14(d) falls within a far more comprehensive framework just within that article; so I don't quite understand why this bill seeks to restrain that framework.
Article 33
Right to be informed of reasons for detention or arrest and of charges
Any person who is detained or arrested will be informed at the time of detention or arrest of the reasons for it, and will be informed promptly and in detail of any charges in a language which that person understands.
This Article is also covered by Article 3 of the International Covenant on Civil and Political Rights and is therefore redundant.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
- Article 3, ICCPR.
Article 34
Right to consult with lawyer and to remain silent
Any person detained in custody has the right to remain silent and the right to consult with a lawyer.
This Article is covered by Article 14(d) & the spirit of the right to remain silent rests with Article 14(g) of the International Covenant on Civil and Political Rights and is therefore redundant.
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- Article 14(d), ICCPR.
(g) Not to be compelled to testify against himself or to confess guilt.
- Article 14(g), ICCPR.
Article 35
Hearings, release and trial
(1) Any person detained or arrested on a criminal charge will be brought promptly before a judge, magistrate or justice of the peace.
(2) No person awaiting trial may be unreasonably deprived of the right to release on giving a guarantee to appear for trial.
(3) Any person detained or arrested on a criminal charge has the right to be tried within a reasonable time.
This Article is covered by Article 9(3) of the International Covenant on Civil and Political Rights and is therefore redundant.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
- Article 9(3), ICCPR.
Article 36
Right to test lawfulness of detention
Any person deprived of liberty has the right to take proceedings before a court for the determination of the lawfulness of the detention and to be released if the court finds that the detention is not lawful.
This Article is also covered by Article 9(4) of the International Covenant on Civil and Political Rights and is therefore redundant.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
- Article 9(4), ICCPR.
Presumption of innocence
Any person charged with a criminal offence is presumed innocent until proved guilty according to law.
This Article is covered by Article 14(2) of the International Covenant on Civil and Political Rights and is therefore redundant.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
- Article 14(2), ICCPR.
Article 38
Right to fair hearing
In the determination of any criminal charge, or of any rights or obligations in a suit at law, every person has the right to a fair and public hearing by a competent, independent and impartial tribunal.
This Article is covered by Article 14(1) of the International Covenant on Civil and Political Rights and is therefore redundant.
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
- Article 14(1), ICCPR.
Article 39
Right to reasonable standard of criminal procedure
(1) Every person charged with a criminal offence has the following rights:
(a) the right to have the principles of due process applied to matters arising from the charge;
(b) the right to obtain legal assistance;
(c) the right to communicate with a lawyer;
(d) the right to legal assistance without cost, if the interests of justice so require and the person lacks sufficient means to pay for the assistance;
(e) the right to have adequate time and facilities to prepare a defence;
(f) the right to trial by jury if the person may be imprisoned for 3 or more years for the offence;
(g) the right to be present at any trial relating to the offence and to present a defence;
(h) the right to examine the witnesses against the person;
(i) the right to obtain the attendance of, and to examine, witnesses for the person;
(j) the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court;
(k) the right not to be compelled to testify or confess guilt;
(l) in the case of a child, the right to be dealt with in a manner which takes account of the child’s age.
(2) Every person who is found guilty to an offence has the right to be sentenced within a reasonable time and to be informed in a language that the person understands of the reasons for the sentence.
This Article is covered by Articles 10 and 14 of the International Covenant on Civil and Political Rights and is therefore redundant. I shan't map this to all the specific provisions.
Article 40
No retrospective criminal offences or penalties
(1) No person may be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.
(2) No person convicted of any criminal offence is liable to a heavier penalty than was applicable at the time the offence was committed.
This Article is covered by Article 15(1) of the International Covenant on Civil and Political Rights and is therefore redundant.
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
- Article 15(1), ICCPR.
Article 41
Right of review of conviction and sentence
Every person convicted of a criminal offence has the right to have the conviction or sentence reviewed by a higher tribunal according to law.
This Article is covered by Article 14(5) of the International Covenant on Civil and Political Rights and is therefore redundant.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
- Article 14(5), ICCPR.
Article 42
No trial or punishment for same offence
No person finally convicted or acquitted of a criminal offence may be tried or punished again for the same offence or for substantially the same offence arising out of the same facts.
This Article is also covered by Article 14(7) of the International Covenant on Civil and Political Rights and is therefore redundant.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
- Article 14(7), ICCPR.
Article 43
Rights when deprived of liberty
(1) Every person deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the human person.
(2) So far as is practicable:
(a) accused persons will be segregated from convicted persons, and will be treated in a manner appropriate to their status as unconvicted persons; and
(b) accused children will be segregated from accused adults; and
(c) convicted children will be segregated from convicted adults, and will be treated in a manner appropriate to their age and legal status.
This Article is covered by Article 10 of the International Covenant on Civil and Political Rights and is therefore redundant.
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
- Article 10, ICCPR.
With the sole exception of Article 29 of Mr Wilkies proposed Bill of rights which concerns the environment, 42 of 43 components of this piece of legislation would be better dealt with with a single piece of legislation that binds existing conventions to Australian law and makes them enforceable.
The only thing that this pathetic bill does, is extend the right to kill babies and old people legally and that in my opinion means that this whole thing should be burned and the ashes hurled out of the window.
In summary, the passage of this bill while perhaps symbolic is either ignorant of existing human rights or is the vehicle by which some vulnerable people in society have their protections trampled upon. If those truths of life, liberty and the pursuit of happiness were supposedly self evident, then I'll need convincing that the recognition of a right which destroys all three, is any net benefit to society at all.
Any so called "right" which basically negates the proposal that murder is wrong, may as well be tearing up the whole damned book on human rights as far as I'm concerned because enshrining any rights at law is completely pointless to someone who is dead.
The vast of this Bill of Rights is already covered by existing international declarations and conventions; since Australia is already signed up to these, then simply passing them into law directly and without amendment, is in my opinion the best option. We already know what those documents are, they are already freely available.
Reference List:
Australian Bill of Rights Bill 2017 - http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5938
Universal Declaration of Human Rights 1948 - http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf
United Nations Declaration on the Rights of Indigenous Peoples 2006 - http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
Convention on the Rights of the Child 1989 - http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
International Covenant on Civil and Political Rights 1966 - http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
1 comment:
you have got it all wrong you know
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