Chris Berg has an important and thoughtful piece in the Fairfax press this morning.
Yet in Australia, bills of rights haven’t had much support by liberals and conservatives. The reason is simple. The First Amendment was written more than two centuries ago. Modern bills of rights tend to increase government power, rather than limit it. This is because our human rights advocates believe that to protect human rights we simply have to transpose United Nations treaties onto Australian law.
…
The distinction is important. America’s Bill of Rights starts bluntly: ”Congress shall make no law” restraining speech or religion. It’s all about protecting people from their government. By contrast, the UN International Covenant on Economic, Social and Cultural Rights says governments must guarantee food, clothing, and housing; that governments have a responsibility ”to improve methods of production, conservation and distribution of food”; that governments must ensure an ”equitable distribution of world food supplies”.In other words, governments should control more things, tax more things, redistribute more things.
Yes – that sums up the modern attitude towards bills of rights.
Chris then asks the important question: “What would a conservative or liberal bill of rights look like?” The point being that if voters don’t impose a bill of rights, then judges will impose their preferences on the electorate.
So here is my first cut (you might recognise some of the provisions from elsewhere):
1. The Commonwealth and the States shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1.a. Any politician who votes for such a law shall be guilty of an offence.
1.b. Any judge who enforces such a law shall be guilty of an offence.2. The right of the people to keep and bear Arms, shall not be infringed.
2.a. Any politician who votes for such a law shall be guilty of an offence.
2.b. Any judge who enforces such a law shall be guilty of an offence.3. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
3.a. Any politician who votes for such a law shall be guilty of an offence.
3.b. Any judge who enforces such a law shall be guilty of an offence.4. No person subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any civil or criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without voluntary agreement and market-based compensation.
4.a. Any politician who votes for such a law shall be guilty of an offence.
4.b. Any judge who enforces such a law shall be guilty of an offence.5. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.
5.a. Any politician who votes for such a law shall be guilty of an offence.
5.b. Any judge who enforces such a law shall be guilty of an offence.6. The right of trial by jury shall be preserved.
6.a Any politician who votes for such a law such be guilty of an offence.7. International law shall not be Australian law unless passed by an Australian Parliament and is compliant with this Bill of Rights.
7.a. Any politician who votes for such a law shall be guilty of an offence.
7.b. Any judge who enforces such a law shall be guilty of an offence.8. The Commonwealth and State governments shall not expend more revenue than raised in taxation.
8.a. In the event of two consecutive budget deficits in a single term of government the Treasurer(s) shall be guilty of an offence.
8.b. This provision may be relaxed in the instance of declared war.9. The Commonwealth tax to GDP ratio shall not exceed 20 per cent of GDP.
9.a. In the event of two consecutive years of the tax to GDP ratio exceeding 20 per cent tax cuts will occur with revenue being returned at the same rate as it was raised.
9.b In the event of three consecutive years of the tax to GDP ratio exceeding 20 per cent the Treasurer shall be guilty of an offence.
9.c. In the event of the tax to GDP ration exceeding 23 per cent in any year the Treasurer shall be guilty of an offence.10. All legislation of any Parliament shall have a ten-year sunset clause, all politicians can be subject to one recall election every electoral cycle and all judges can be subject to one recall election every 5 years.
As Chris says, “Let’s haggle”. That would be my starting point. The biggest problem I see with Constitutions and Bills of Rights is that they are not self-enforcing documents. So I have built that in.
I’m sure the thread is going to be boisterous.
The UN Declaration of human rights states:
Article 19.
Article 20.
And the problem is?
The Commonwealth shall make no laws, nor appropriate any moneys, for either the benefit or detriment of any person or group of persons, based on that person or group’s sex, sexual preferences, race, racial origins, religion, national origins, politics, …. (you get the general idea).
It could be called the “we are all Australians” or the “death to identity politics” amendment.
Louis, the problem is all of the feel- goo dross, such as this:
PIMF
A right to the product of your own labours, to be used to your own ends, with only minimal government interference as is necessary for the purposes of upholding civil society.
“such a law such be guilty of an offence” sounds a bit odd.
No 6.b?
It’d be great if 9 somehow rewarded going below 20%.
[Typo got cut and paste. Fixed. Thanks. Sinc]
I suggest the following qualifiers….
(a) Recognition that this document not be restrictive in nature… we must not end up in a situation in which any right not identified in this documents is not a right at all.
(b) Recognistion that the document recognises rights, rather than creates them. Has the same effect as the first point.
WRT;
- Point 1. How do we get around the current US idiocy claiming that the “Not establish religion” clause prohibits mention of God in schools … even religious schools that obtain some government support.
- Point 2. Before the inevitable question is asked, I am ogoing to suggest that those people who can be trustsed with arms, can be trusted with “military weapons” because they won’t do any harm with them. Those who cannot be trustsed, should not be allowed out with a water-pistol. The US experience with CCW laws demonstrate that picking the difference is actually rather easy and simple.
Also, one of my pet hates is punitive damages. I suggest that they promote the abuse of the courts as both a vehicle for revenge, and a lottery for those who wish to get-rich-quick. Courts should be dealing with the law, not handing out sympathy money. But I’m not sure where and how this should be included, if it can be.
1c. Any bureaucrat who proposes such a law will be instantly dismissed and banned from earning a public salary again.
Reviewing my own post, I’m glad that there’s no law against typos.
Punishment for the above offenses:
Death.
I’ve thought about this for years, don’t get me going!
Right to total ownership over their own lives to pursue happiness as they see fit so long as they don’t violate the rights of anyone else.
(Explicit) Rght to property obtained by voluntary free trade or homesteading which is intrinsic and absolute. This right begins with total ownership over their own bodies.
Right to freedom of action – in that you are free to go where you like and do what you like so long as you don’t violate the rights of anyone else (the US Bill of Rights didn’t seem to address this).
Right to Privacy and protection against unwanted intervention into peoples lives
Right to voluntary association e.g “every individual has a right to engage others, maintain relationships, and maximize freedom of association, for commerce and to transport their property.”
Right to free trade using an explicit ‘Parliament shall make no law…………” e.g.“Parliament shall make no law restricting the peoples right to price their legitimate goods or services by mutual consent”
Right to self defence and security
Also need something to suggest military power is devolved to the people (militia), or some protection to ensure their can never be a monopoly on the use of force that could be destructive to the people’s ends.
Cato,
Oh yes, correct but remember the USSR basically framed the declaration, but it’s this primary declaration that the rest are derived from. The US constitution, etc, wasn’t framed by a bunch of lefties.
Lefties – immediately recognisable because they talk with their hands.
The rules set forth within this document shall apply strictly. If there is room for interpretation, the strictest possible interpretation must be taken.
I would have the Commonwealth have very few defined powers, and the ability to levy a tax except in wartime wouldn’t be one of them.
Or, if there is a bill or rights, then judges will impose their preferences on the electorate. Simply because the legal profession will be the bastards who write the freaking thing.
Louis
The problem is that the UN Declaration is deceptively phrased. It pretends to be about rights but, as Berg noted, is really about obligations. It should be renamed “The Universal Declaration of Moochers’ Entitlements”
The repetitive use of the term “Everyone has the right to” opens up the argument that “someone” has the obligation to gimme whatever I say is necessary to fulfil my entitlements.
Contrast the nice simple “Congress shall make no law regarding”.
I don’t mind your suggested document Sinc, with the following caveats:
Religions that encourage and lead to violence can be banned.
There should be no right to silence in a criminal case.
Only if you stand back and let them, Jupes. Send in a team of small government minded lawyers, there are plenty of us about.
Slightly off thread, there’s a good reason why lawyers aren’t allowed on juries – because we can’t be trusted to keep our fingers out of the pie and just STFU.
Personally, I’d be happy to sacrifice my own franchise (and inevitable election as El-Presidente-For-Life) if every other qualified lawyer in Australia was also disenfranchised and permanently barred from any elective office
Simply because the legal profession will be the bastards who write the freaking thing.
Good. They should be forced to write a charter of things they will not fuck with, and be made to keep writing limitations on themselves until the people are satisfied they can’t do too much harm.
You could articulate a Bill of Rights that was limited to those rights on which there is wide agreement. In fact that’s the only way such a bill would be taken seriously.
From Chris’s list I’d say #1, #3, #4, #5 and #7 would be such. The others would be contentious. Altho’ I would support #9 and #10 as well.
Adrien – that’s my list not Chris’ list. I’m not sure what list he’d put up.
Nope. Too slippery a slope.
Would you ban Christianity because some activists in the USA have taken up assassinating abortion clinic doctors? No can do. Just prosecute on an individual basis for criminal activity; or wage war where appropriate.
Cato,
Quite, and I only introduced it to get people here to start questioning the whole basis of the UN declaration of rights since it will form the basis of any Australian bill of rights, we being a UN signatory etc etc.
If however we go down Sinc,’s route, and the similarity between his and that other one, implies we are thinking of junking the UN one.
If so, so be it but administratively it might be a bill too far.
I like this one, however I don’t think Australians are adult enough to stand up against the likes of the UN and hold our own ground. We want to be so desperately ‘liked’ and approved of in the global community we just say yes to any law or directive imposed upon us externally.
There should be no right to silence in a criminal case.
If we assume that some people are unable to understand the gravity of everything they say in a criminal case, simply because they are not law-minded folk (but maybe spent their lives doing something productive, for example), the only way to give them due process is with a right not to be forced to testify against themselves, a right to silence on arrest, and a right to legal representation.
I f’n hope not. We should start again from scratch and adopt the USA approach of imposing restrictions on government, not “declaring” rights. The Universal Declaration of Moochers’ Entitlements is irretrievably tainted.
Adrien – that’s my list not Chris’ list.
My apologies, sir.
We want to be so desperately ‘liked’ and approved of in the global community we just say yes to any law or directive imposed upon us externally.
Do we? I thought the main use Australian political forces made of the UN and other international agreements is to enforce federal authority on matters properly belonging to the states.
Swan will be singing, “War, what is it good for? Keeping me out of pokey. Whuh!”
Well, then we should model it on the US constitution as originally framed but when we have 50% of the population in the moocher class, then their input will need to be accommodated. Unless we go down the Platonic route and accept the deliberations of a council of wise elders who would be similarly constituted, 50% wise moochers, or should I say glib moochers.
My starting point would be to assume the rights of the individual as paramount and that government will not frame laws abridging those rights.
Then it also strikes me that the moocher class is greater than 50%, so the rights to sustenance will always be carried democratically.
So how to frame a bill of rights without going through the process of ratifying it democratically?
No. But I would if thousands of Christian activists assisted by hundreds of thousands of other Christians throughout Australia took up assissinating all non believers. Note my caveat states religions can be banned.
Hence my point. How do wage war against a religion without banning it?
Rubbish. Why should so called ‘due process’ trump the truth?
Truth should be the key principle in any trial. How can you get to the truth if you can’t even ask the person suspected of the crime what he was doing at the time?
Sinclair Davidson wrote:
If the Commonwealth is constitutionally forbidden to spend more than it collects in taxes, then the seigniorage due to the necessary expansion of the money supply in line with economic growth will be entirely appropriated by private banks — as a constitutional right — rather than used for public revenue. The public revenue thus forgone will be replaced by taxes, with the usual inefficiencies and inequities.
In other words, war need not be financed by taxing those who can pay the taxes right now — i.e. the rich. It may instead be financed by borrowing from those who can lend right now — i.e. the rich — and paying them back with interest by taxing other people for years or decades afterwards.
Financing war by debt instead of taxation ensures that the people who own the country contribute as little as possible to the costs of its defence.
John Mc wrote:
If you expend your labour building a neighbourhood shopping centre that adds to the value of my home, I appropriate that added value and thereby deprive you of the fruits of your labour. Unless, of course, my ill-gotten gain is diverted into the public treasury and spend on services that benefit both you and me.
You don’t. You debate against the religion, you go to war against the people.
Gavin
Not all wind-fall gains are necessarily “ill-gotten”, just as not all losses are someone’s fault. Luck, good and bad, exists.
The neighbor appropriates nothing. If I light a candle and you can see by it, what have you appropriated?
If your going to relax borrowing in times of war, you need to define that the borrowing must be related to the war effort. Otherwise you’d find a war declared against Fiji and one navy ship parked off the coast, and 20 billion borrowed for insulation or something .
Cato, that says that Congress is obliged not to “make a[ny]…law regarding….” Rights are just the other side of obligations.
jupes would have banned the various organisations that instigated the American Revolutionary War.
to extend the privilege against self-exposure to penalty to ALL civil proceedings would be a fairly radical break with the common law.
Why bother? There is a difference between losing liberty/occupational rights, on the one hand, and merely being held to account for damages for one’s own actions. This would be a knave’s and fraudster’s licence (as I think the corresponding US right has become). By all means limit the circumstances in which compulsion is to occur, but we have a long history of adequately dealing with compelled testimony – see eg s 81 of the Bankruptcy Act and s 597 of the Corps Act.
Or you ban the religion, thus denying those who want to wage war against Australia the ability to raise money and plot against us with the protection of the state.
Just because a god is involved shouldn’t matter. I see it as no different than banning the Nazi Party during WW2.
Cato the Elder asks:
It depends on whether the government taxes my light or your candle. At present, it taxes your candle.
Nope.
Why should the Commonwealth make no law respecting the establishment or conduct of a “religion”?
I can see no valid reason why institutionalized Dark Age superstitions ought to have constitutional protection from the encroachment of facts, science, knowledge and the justice and taxation systems.
If you look at some of the disgraceful belief systems masquerading as “religions” today, many of them should be outlawed as the creations of charlatans and confidence tricksters. Why should the scams of one con-artist be against the law, but another is not merely because it is constituted as a “religion”?
Why is it that so-called “religions” are largely tax exempt but amass billions of dollars which is often made available for the private use of the cadre at the top of the organization?
Or you ban the religion, thus denying those who want to wage war against Australia the ability to raise money and plot against us with the protection of the state.
Yes. Such approaches have a wonderful record of success. Why there’s Europe in the 17th century, what fun they had, not to mention the great thing that have come of a policy of repressing fundamentalism in the Middle-East.
Banning religion always works. That’s why the Church died out in Russia.. Oh wait.
To make the “freedom of speech” issue clear, we have to openly support “hate speech” as protected speech also. In the US this is the case. The downside is we might get outfits like the Westboro Baptist Church – “God Hates Fags” – but surprisingly, the US manages these turds in its stride. The upside is, there would be no need for all the uncertainty, anxiety, and zealous academic patrol of any tweet or comment made in a restaurant that may “offend” or “insult” somebody who might have some vague relation to the 23,584 “protected attributes”. This clause could even be called the “Suck It Up Clause.”
The Drum, not getting it…
Innocent until proven guilty!
All legislation must be over-ridden to include this. The burden of proof must be on the state/accuser not the accused.
Correct. The early Christians did a magnificent job on the Pagans. Also try and find a Jew in Jordan.
Applying Occam’s Razor, we really need only two rights, as all the others flow from those two:
1. Freedom from the state in the expression and belief of any belief whatsoever.
2. Freedom of association.
Obviously 2 would be subject to the CRIMINAL law, such as conspiracy, and so on.
Or a church in Saudi Arabia.
I object to the fixing at 20%. It closes the option of making it 10%, a much nicer number.
The ‘establishment clause’ doesn’t provide any of those ‘protections’. It merely says that there will be no ‘established’ religion. This is plain even to those well-versed in institutionalized Dark age superstitions.
Donations, bequests, tithing, and so on. I understand how these voluntary transfers of wealth get up the nose of some people. Suck it up.
The right to build a living abode of your choosing on your property.
Sinclair, would you prefer the bill of rights to be a constitutional amendment, or a legislative instrument?
“you need to define that the borrowing must be related to the war effort. Otherwise you’d find a war declared against Fiji and one navy ship parked off the coast, and 20 billion borrowed for insulation or something”
You’d need a definition of ‘war’ too, otherwise endless money could be spent on the war on drugs or the war on terrorism.
I like it! If only.
I have never supported the right to not incriminate oneself. Failure to cooperate with full disclosure in any case brought by the Crown should result in the immediate seizure of all assets belonging to or in any way made available to the condemned accompanied by permanent irrevocable exile. if you do not want to be open and honest to the people about your failings then you must live elsewhere and never return.
I have never supported the right to belief in religion. Believing in bullshit is fine so long as no rights accompany the belief. Since most religion directs me to persecute others it is best for people to not aggressively pursue rights for religions.
Jarrah – ideally a constitutional amendment.* We already have legislative instruments that can be ignored or amended by the very politicians they are intended to constrain.
* Yes, I know how difficult that would be.
Also not sure what 8, 9 and 10 are doing in the list. Not much wrong with them as policy, but how are they rights?
The job was done by their own emperors. But, anyway, I’m sure the early Christians would have enjoyed the ‘establishment clause’ during the 1st-4th AD while they were being killed by the bushel by ‘tolerant’ pagans.
“I have never supported the right to not incriminate oneself.”
It’s a corollary of the presumption of innocence.
Obviously they’re imitations on government. We can limit what government can do to our lives and our personal choices, but historically BoRs have failed to place limitations on how government spends your money or borrows in your name.
” The downside is we might get outfits like the Westboro Baptist Church – “God Hates Fags”
There are words, and there are actions. Happy for people to say stupid hateful stuff or to incite hatred. But eager to have any act of hatred severely punished.
You do not need to circumscribe speech. Only actions. And if they yell fire in a theatre, who gives a shit. There are sprinkler systems and large exits. No one will be harmed.
Better to have nutters sprouting openly so they can be seen and laughed at.
Beg pardon… but the early Christians were on the receiving end. The whole Christians vs. Lions thing was when the Government acted to prohibit a religion… and it didn’t work.
Then when the Government became officially Christian, that wasn’t good either, altho I don’t think that the Lions ate as well.
The whole point of “shall make no law respecting an establishment of religion” is that government shall not make either kind of law. Government has no more role in telling us what we must believe, than it has in telling us what we must not believe.
Nor should anyone who claims to believe in individual liberty, advocate a law making it illegal for one person to associate with another because they believe the same thing.
Banning a religion not only denies the right to freedom of belief, but freedom of association and freedom of speech.
It also contravenes the basic principle that a crime requires both intent to do harm, and actual harm.
Jarrah I cannot see it as a corollory. You should be given the benefit of the doubt only after all that is known by all parties has been assessed and been judged not entirely conclusive. If you know you are guilty you should say so and seek contritely some mercy. If not, I don’t want you living here.
That would turn into a legal nightmare. How does the notion of a forced confession fit into this?
I’m a bit with WhaleHunt Fun on religion. The question of what a religion is becomes pertinent, it’s just believing stuff which doesn’t necessarily have to be true and acting in accordance to rules you’ve imposed on yourself. The worship of deities shouldn’t receive any more formal recognition than the worship of Justin Bieber. Religion is a historical legacy.
Whalehunt
I think that is right. And we have long had proscriptions against words that turn into “assault”.
Something to do with the idea that the community gains more from the charitable services provided by religious organisations, than it loses in taxes foregone.
Most of the claims of vastly wealthy religious organisations are based on asset-values that result from a church being built on cheap or donated land that 200 – or 2000 – years later is now part of the CBD.
If “religious” hospitals, schools, retirement homes and counselling services ceased to exist, it would cost the taxpayers far more to replace them than we would gain in extra taxes.
Just because you don’t agree with their motivation, doesn’t mean that what they do doesn’t benefir the community beyond their own constituency.
Surely number 9 relates to property rights, a fundamental right, though one you don’t hear about much when leftists go on about human rights.
“Jarrah I cannot see it as a corollory.”
It’s up to the prosecution to prove an offence. That means you don’t have to defend yourself, which means you have a right to silence, against being compelled to speak. They’re all part of the same thing.
Having 10 different rights with all the detail suggested by the OP would provide enough work for 50% of Australians to become lawyers.
I’m not sure what the problem is regarding the tax-exempt status of religious institutions, given that other not-for-profit institutions are similarly tax-exempt.
From an online legal dictionary…
Due process is about ensuring that justice IS done. Those arguing for its abandonment fail to address the question of whether the harm done through adhering to the rule of law is greater than the harm done by abandoning it.
Due Process and presumption of innocence are what preserve our rights and prevent us from becoming a Police State.
When you’re on the receiving end of it there isn’t much difference between profit and wages. A lot of people are making money from not-for-profit institutions.
Pardon… I didn’t word my previous post very well.
In strictly utilitarian terms, we need to aske what causes greater damage.
(1) A few criminals not being punished because we do not force or threaten a confession out of them, or;
(2) The increased incentive for the authorities to pressure people into confession (right or wrong)
Persons testifying to their own guilt or innocence must be treated as unreliable witnesses anyway. Therefore the emphasis is less on a dispassionate determination of the facts, and more on getting convictions for their own sake.
The courts are not just there to punish the guilty, but to protect the innocent. If the innocent are being puenalised, then the courts are failing in their function.
But there is difference enough. I’m not sure why you would want to dissolve the distinction where a church is built out of the effort of local parishioners that purchase the land and pay for its construction just because the local priest might be paid a wage from the national organisation.
I wonder why no-one here has missed out on oine of the fundamental issues that needs to be enshrined in the Constitution, and that is the presumption of correctness of tax assessments. At the moment we all bvear the burden of proving that the ATO assessment of our tax is excessive. I tynk the Constitution should include provision for the fact that the Government has to prove that its assessment of your tax is correct in a court of law, if it wishes to assert that you have underpaid tax.
Too many of us, just accept that the Government has a right to our money. Rather it is the Government’s privilege to obtain that money.
I see ATO berks every day basically steal money from taxpayers by imposing assessments for sums that don’t quite justify going to court. It is a national scandal, that none of you libertarians seems to care about. If the Commissioner had to justify his assessments in Court or AAT we could stop overspending Governments in their tracks, as the tax take would drop drastically.
no-one should be anyone
One thing that interests me is the right to a speedy trial. Amongst Sinclair’s wish list, it is the only one which requires the State to do something rather than refrain from doing something. What is the remedy for the failure to provide speedy justice. Yes, you can punish those who make a law against it, but what’s the remedy if its just slackness on the part of prosecutors.
Also, how does one deal with complex matters where a prosecution cannot be mounted quickly because there is just too much to do?
I wonder whether an easier solution might be to say that a prosecution may not be brought if it is not brought quickly (taking into account the complexity of the matter).
I’m not an accountant, so excuse the ignorance…
For the most part, doesn’t a company pay tax on profits?
So why would it matter if a non-profit making entity is asked to pay tax on profits?
Just remember that the early religions were the political systems of the time. Romans versus the Christians is basically Tories versus Socialists in the 19th century – the Jews started the cult of worshipping an abstraction instead of the physical planets, so whether that abstraction is G-d or the State is neither here nor there – it remains subservience to an abstraction.
Quarantining a bill of rights from this activity seems a difficult thing to do.
I suppose you have to convince the judge that the trial is speedy subject to the constraint that the same judge is himself facing criminal liability if his judgement is found to be unreasonable on appeal.
Also, isn’t the provision that judges commit offences by enforcing unconstitutional laws full of problems? What if it’s not obvious that the law is unconstitutional and the point isn’t argued before the judge? What if a law is enforced for years on the assumption it’s constitutional before an appellate court finds that it’s unconstitutional? Are we then to go back and prosecute all the judges that have previously enforced it?
What if a politician gets an opinion at arms’ length that a law is constitutional and votes for it? Should he still be prosecuted?
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Also, how does one deal with complex matters where a prosecution cannot be mounted quickly because there is just too much to do?
This is a perennial dilemma both here in the US. We are already dealing with it. Some cases will just take years. This doesn’t mean the principle that things should proceed as quickly as possible, but no quicker, has been violated.
Nick – no excuses, no wriggle room. You steal the constitutional rights of your fellow citizens and you go down.
I guess it just depends on your construction of the words “right to a speedy … trial”. It isn’t immediately obvious that those words were meant to import some concept of relativity; it seems even less likely that is what was meant by them in the US Bill of Rights. They weren’t dealing with the mega-trials we have these days.
You’d make a harsh dictator Sinclair.
I’ve been a university administrator.
Evil overlord.
Dear “dismissive”,
The presumption of innocence can’t wait for a bill of rights. It has been eroded on multiple fronts and needs to be rescued NOW; that is, an implicit guarantee of the presumption of innocence must be found within the existing (and entrenched) constitutional framework.
I nominate the separation of powers, whereby the power to convict is a judicial power and is vested in the courts.
Without the presumption of innocence, it becomes possible to obtain false convictions at will by performing certain acts, such as planting evidence or giving false testimony. Hence those who are willing to perform such acts effectively arrogate judicial power to themselves in violation of the separation of powers.
This argument does not depend on the premise that anyone would actually perform such an act — just as the prohibition on a judge deciding a case in which he/she has an interest does not depend on the premise that any judge would actually succumb to bias. The mere feasibility of an accuser obtaining a false conviction by performing certain acts, like the mere feasibility of an interested party deciding a case in his/her favour, is a violation of the separation of powers. That said, there is ample evidence that people do plant evidence and give false testimony, and ample reason to believe that only a minority of such cases come to light.
Upholding the separation of powers with all its implications is not judicial activism.
judical immunity has a good basis. Judges shouldn’t have to defend themselves whenever they issue a ruling that makes someone unhappy, which is their job
there is enough vexatious litigation as is. should jury members lose their immunity for slow or bad decisions too?
stigler wrote on academics being sued for teaching ideas found to be mistaken.
the charges were not submitted the theory to sufficient empirical tests, not displaying proper scientific caution, and not notifying former students once the disastrous performance of a theory became known
summary dismissal was sought because teachers: could not be held responsible for honest errors, or all instruction would stop; and could not be asked to disseminate new knowledge to previous students – this would be too costly.
see http://austrianeconomists.typepad.com/files/a-sketch-of-the-history-of-truth-in-teaching.pdf
Not accurate.
The Romans referred to the early Christians as “atheists”, because the monotheists would not worship the Roman’s pantheon of gods, which included the odd (and some were very odd) emperor. It genuinely was a religious issue, not a social one.
I’m not an accountant either but we are not just talking about taxes on profits. But the difference between the organisations, generally speaking, is that a for-profit organisation is in the business of pursuing profits, while not-for-profits are not. The latter are usually constituted by their members, whether a local cricket club, chess club, church community, and the like.
It’s not even remotely like that. For one thing, early Christianity was not a political system.
Jim Rose – I’m not suggesting anything other than judges and politicians uphold the constitution and bear a penalty for failing to do so.
The Stigler sketch applies to people being sued for doing their job. I suggesting that people be punished for not doing their job.
No. ‘Due process’ is about hiding the truth.
No one is proposing banning the ‘rule of law’. Just changing the law, that’s all. The purpose of a trial should be to find the truth, not hide it.
Harold
Not quite so…
A company that pays wages to its employees may not pay tax if it does not make a profit. However tax IS deducted from the wages of the employees, not excluding fringe benefits.
Employeed/managers of secular NFPs are notorious for over-remunerating themselves… after that Asian Tsumani, every 5 and 4-Star mortel room in Djakarta was booked out by journos and reps of such groups. Analysis of religious NFPs has shown that they get a higher proportion of ther income to the niminal beneficiaries… as high as 90%. Secular and government orgs hover around the 60-70% if my memory serves me correctly.
Tele-evangelists, on the other hand…. .
FTFY
No doubt. But if they are lying, their lies can be exposed. If they don’t want to say anything, then that decision is given appropriate weight by the judge.
So how does letting the guilty off fit in with that?
True. And if the guilty are getting off, then the courts are also failing in their function.
I wouldn’t trust cops/courts/lawyers with greater powers. They seriously abuse the ones they already have, so if you remove the presumption of innocence, how much worse do you think that’s going to get?
Wrong.
Due process is about accepting truth and justice cover a far greater range than the narrow focus of the facts of a particulat case.
The TRUTH is that citizens need protection from the government.
The TRUTH is that in an antagonistic legal system, such as the one that we have, justice will not be SEEN to be done if the accused does not have reasonable protection.
The TRUTH is that due process is about getting as close to the truth as we can…. which will not be done if the prosecution and judiciary are not restrained.
Process is only not required when we have perfect trust in the police and judiciary. As we cannot have that, we-the-people, through parliament, have created an appropriate set of restraints. They are not perfect either, but there is no evidence that zero resraint is superior…… unless you like the sound of Papiere Bitte!!
Jupes….
If I followed your argument, you would be happy if everyone is punished, so no guilty person would escape.
You have not yet accepted that there is any level of harm to the innocent that you would not accept, rather than let the occasional guilty party go free.
You obviously do not believe in freedom or individual rights.
Such silliness.
Due process is not about the dire of government to get the guilty off the hook.
It is – to reiterate – the price we pay for not having a police state.
Papiere Bitte!
No. As it currently stands you are wrong. The right of silence hides the truth.
Bollocks. How can it be if you don’t want to know where the accused was and what he was doing at the time of the crime?
You’re not a defence lawyer by any chance are you Pete?
The first problem with making it an offence to pass or enforce an unconstitutional law is how to prosecute and enforce those offences.
The second problem is how to deal with laws that are thought (in good faith) to be constitutional but are later held by a higher court to be unconstitutional
Much better to make it grounds for impeachment rather than a criminal offence.
Correct. The early Christians did a magnificent job on the Pagans. Also try and find a Jew in Jordan.
In both cases the religion that is inciting violence was the one that was victorious? I do suppose we can do without your ideas of success.
Exactly what would your religious proscription do that legislation targeting organized crime and terrorism does not? And more successfully because it levels its guns at violent behaviour not a general system of belief thereby avoiding sectarian tension?
Incorrect.
All I want to do is have the accused explain themselves. Doing that would result in more correct decisions, not less.
You obviously have no idea what you are talking about.
Gentlepeople – please take detailed religious debates to the religion thread.
Stop or make it harder for enemy clerics firing up the mob.
Stop or make it harder for enemy educators indoctrinating the kiddies.
Stop or make it harder for enemy fundraisers to gather funds.
Peterw
So what’s the difference? Religions are about establishing a social order – those in authority making the rules etc. No different then today except our sense of purgatory is somewhat metaphorical compared to 2000 years ago.
Of course we must not forget that the framers of the US constitution came from the traditions of the pilgrim fathers who were a bunch of commies which, when absolute survival was at stake, rejected those communitarian ideal. They were then, and remain, devout Christians as well, so it strikes me that a good start for any bill of rights might be the Ten Commandments. It’s sort of the capitalist manifesto?
“The right of silence hides the truth.”
That’s ridiculous. Are you suggesting that the truth has never been arrived at in any court in any country that has the right to silence? Obviously truth can be found by several means.
Next you’ll be arguing that the right to be free of unreasonable searches hides the truth.
No. I’m suggesting that the truth can be hidden by the right of silence.
Nope, won’t be doing that.
Nope, won’t be doing that.
Why not? If you have no right to privacy when it comes to your actions, then why should it exist for your possessions?
Late to this thread, and I’m not sure if it’s been mentioned before and I’m unsure about how appropriate it would be for a Bill of Rights, but I think something should be stated about respecting the Sovereignity of Australia and its borders, and maintaining a strong and viable military force.
Because I believe that people should be free from unreasonable searches.
I believe that you should have a right to privacy when it comes to your actions, unless you have been accused of crime. Then you should have to explain yourself.
Same with possessions. If you have been accused of a crime, I believe that your possessions should be searched. This is already the case.
Ha ha ha ha ha ha ha ha!
The purpose of a trial (note the word means ‘test’) is to determine whether the plaintiff has proved his case. In other words, it is not necessary to know the truth, it is merely necessary to know whether the plaintiff’s allegation is correct. The defendant doesn’t need to establish a truth. He merely needs to show that the facts are not as the plaintiff says they are. The law is about finding fact, not truth. Based on the fact found, the court then has to determine what punishment to give the defendant or what recompense to give to the plaitiff.
A defendant in a criminal trial does not have to prove anything. It is up to the prosecution to prove guilt. That is why the right to sillence is so important. It is a reminder of the basic burden of proof that lies upon the prosecution.
sinclair, Juries are the judges of fact.
Tullock is a fine critic of jury trials.
His chapter of trials on trial is headed amateur judges. He makes his case in my view.Criminal trials should be by three judges with a unanimous verdict.
See http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1987/11/cj7n2-13.pdf for the law (mostly) and economics of judicial immunity.
If errors are committed, the proper remedy is an appeal. Appeal courts are panels of three or more judges to reduce the influence of any one judge.
Jim – Tullock’s analysis of the law is just crap. His common law – civil law dichotomy has been refuted by the Shleifer work done in the late 90s and early 00s.
The notion of abandoning juries is simply abhorrent. something the apartheid government did and I suspect Tullock wouldn’t choose to be associated with them.
Jim – from that Cato article:
That is my argument too. A judge that unilaterally changes the constitution has acted beyond his powers. My proposal formalises this so there is no confusion. (Ironically Tullock should approve of that innovation.)
So we have a faction on here willing to abandon the right to silence and jury trials to enhance our freedoms? Scary.
Good one RL. I’m always interested to get an insight into the workings of the legal mind. Please note that I used the word ‘should’. As in ‘the purpose of a trial should be to find the truth, not hide it’. I’m well aware that a trial doesn’t try to find the truth, however it does amaze me that you seem to think this is a good thing.
I am not suggesting that the burden of proof be changed or that the defendant must prove his innocence, however there is no need for a ‘reminder’ as to where the burden of proof lies. I’m pretty sure the legal profession doesn’t have to be told twice about that. The defendant should have to give his version of events and the court will have more information from which to make a judgement. Makes sense to me.
jupes
But what is “truth”? (said jesting Pilate)
One person’s religious “truth” is another person’s “sky fairy”, for example.
Facts, OTOH are evidence, which forms the basis of legal decisions.
Juries decide the facts. Judges then apply the law to those facts.
See?
8. Neither the Commonwealth nor any state or territory government shall possess the capacity to issue debt beyond their current term of government.
9. Taxation shall not be levied against labour nor against capital.
Arguably good policies, Driftforge (although could be problematic without fixed Parliamentary terms).
But thery’re not rights, are they?
The list should be short, clear and, so far as possible, unambiguous. A long wish list will leave too much wiggle room and finish up looking like (and being as useless as) The Universal Declaration of Moochers’ Entitlements.
So we have a faction on here willing to abandon the right to silence and jury trials to enhance our freedoms? Scary.
To say the least. If we can’t agree on the basic principles that underpin an open and free society what hope does the wider society have.
10 – The issues I have with this are twofold. First, 10 years is probably too long; maybe 7 ?
Secondly, ascribing this to all legislation is going to results in a lot of government make work. Not all legislation needs to expire – I would suggest that only legislation that regulates or inhibits the action of the public need be reviewed. Legislation that binds the government, not so much.
Same with possessions. If you have been accused of a crime, I believe that your possessions should be searched. This is already the case.
There is a little thing in there called a warrant y’know. You don’t find them in cereal boxes.
Hey Jupes, if there was sufficient evidence that a person was a terrorist and had valuable information that could save innocent lives, and you got a warrant to deny him his right to silence, and he still won’t speak, should you be able to torture him?
8 probably could be better stated to reflect its nature as a right. It is effectively that no individual shall be bound by the promises of their representatives to provide future payment to cover current costs.
Number 9 – No individiual shall have taxation levied against their income, nor against their capital.
Think on that for a little longer.
This. If there is no right to silence, then torture will be instituted.
I’m starting to see why the US Bill of Rights was done as one by one amendments and some years after the basic constitution was adopted. This is a goat rodeo and most commenters are coming from a similar direction. With genuinely opposed positions the wrangling could literally go on for years.
A bill of rights is not something you want to institute after 100 odd years of relatively simple progress. Its what you want after a period of turmoil that highlights to all what works and what doesn’t.
Agreed.
It’s also not something that should be cluttered up. Stick to the basics.
And on that note, why not stick to the current hot topic, freedom of expression? Adopt others as circumstances throw up the conditions that show they are needed.
On that note:
#1 misses a freedom of association, and the freedom to refuse to associate.
I don’t think #2 has the requisite history to be established in Australia at this time.
#6 duplicates portions of #5.
#7 is a statement of national sovereignty, not individual rights.
#8 and #9 are important and effectively deal with refusing the government the right to go into debt on our behalf, and refusing the government the right to coercively extract revenue.
#10 needs serious polishing, or to be tossed out.
“Because I believe that people should be free from unreasonable searches.”
But that could Hide The Truth™!
“I’m starting to see why the US Bill of Rights was done as one by one amendments”
The first ten amendments were all adopted simultaneously. The only other amendments about rights were the various voting ones.
A rather pointless activity. Governments do what they want. Neither China or the US follow there constitutions or even if you somehow argue they do by making everything state emergencies or national security then there are out clauses.
Sinc and Chris are right. The Australian Human Rights Commission has been calling for a bill of rights for many years. Let’s give it to them. A carefully crafted human rights referendum could be a winner – enshringing free speech, property rights etc into the Constitution.
I’ll agree to a Bill of Rights when the court system is privatised. This current system of cronyism in appointing judges must go.
I agree we should stick to the basics, but I’d still like to see the right to spend one day a year hunting real estate agents for sport.
Is that too much to ask?
It didn’t stuff up America. It’s how they started, it’s their history.
For better or worse, it isn’t ours. As such, I don’t believe it could, at this time, be reasonably part of a ‘Bill of Rights’ here.
Sinclair you’ve got rocks in your head if you think that a judge would not use your Bill of rights to “impose their preferences on the electorate”.
Let me be perfectly clear – a Bill/charter whatever of Rights TAKES power from the Parliament and GIVES it to the judiciary! You go that? From the people who answer to voters, and to the people who answer only to their own lefty-progessive eletist social group (including which ever interest group is most fashionable at the time).
Luke…
A quick reminder that this IS the reason we have the doctrine of the separation of powers.
The power of the judiciary is not to make law (that belongs to the Crown) nor to determine what the law shall be (that belongs to Parliament) but only what the law shall not be according to the limits set by a Constitution and BOR.
….. And ultinately each of them must be subservient to the people, via election, referendum or revolution.
It’s far from being a perfect system, but Cromwell showed us what happens when you have an unrestrained Parliament.
Truthtold…
You obviously know very little about crime in America.
(1) RKBA does not cause crime. All the evidence is that higher rates of legally owned firearms correlate with lower rates of crime.
(2) The vast majority of crime is committed by people who do not own weapons legally.
(3) Crime is a social phenomenon… mostly associated with inner-city areas where ethnic gangs fight each other for drug turf… I’m surprised that the connection between that, and ethnic motorcycle gangs using illegal weapons to commit the current wave of drive-by shootings.
(4)A student is actually safer in an American school than a British school.
(5) A British or Australian burglar is more likely to break into your house knowing that it is occupied, than an American burglar.
(6) The homicide rates in Britain, Australia and America were lower in the early 1900s – when there were effectively no restraints on owning firearms – than they are now.
(7) Over 40 states now permit normal citizens with no criminal record and a basic knowledge of the law to carry firearms for their own defence. Not one of those states has seen violent crime increase as a result of passing those laws. Not one
Sorry, but there is no evidence that RKBA causes violent crime, or that it has been a “mistake” on the part of America to retain it. Criminals, by definition, do not obey the law. That includes any law limiting possession of arms. All that such laws do is to disarm the people who aren’t causing the problem.
“Sinclair you’ve got rocks in your head if you think that a judge would not use your Bill of rights to “impose their preferences on the electorate”.”
All judges necessarily interpret laws according to their preferences. Nothing would change just because the law happened to be a bill of rights.
“Let me be perfectly clear – a Bill/charter whatever of Rights TAKES power from the Parliament and GIVES it to the judiciary! You go that?”
Well, it depends on how the bill or charter is implemented, what enforcement mechanisms are employed, etc, but broadly you are correct. What you don’t seem to realise is that this is the intent. Because parliaments rely on majorities, they can often do nasty things to minorities (whether they’re Chinese immigrants or rich mine owners). Rights are a way of forcing parliaments to treat people as people.
“the people who answer only to their own lefty-progessive eletist social group”
LOL. You’ve obviously never read a legal judgment in your life.
Sinclair, The papers you refer to are on the legal origins of civil law, not criminal law. The common law better protects the individual than continental civil law.
Civil jury trials are uncommon outside of Victoria.
The rest of the British common law world has legislated to limit civil jury trials to narrow circumstances or has abolished them see http://ip29.publications.lawcom.govt.nz/chapter+9+-+civil+jury+trials+in+the+high+court/civil+jury+trials+in+other+jurisdictions
Tullock is winning!
No – statists are eroding our rights. That is why I inserted that bit into my starting draft.
Tullock isn’t winning, freedom is losing.
jury trials increase error rates in criminal trials in both directions: the guilty go free and the innocent are convicted.
“jury trials increase error rates in criminal trials”
Really? By that I presume you mean more jury trial verdicts are overturned on appeal than non-jury trial verdicts. Do you have a link?
Australia’s right to jury trial (one of the handful actually in our Constitution) was too weakly worded, and has been whittled down over the years by legislatures.
JMcC at 1115, I think that the clause you are are looking for is the one that says any male between 18 and 45 – or whatever it is – is automatically part of the Irregular Militia. This coat of paint covers a lot of eventualities.
Where’s the roving Drumhead Courts Martial? I don’t see any reference to Roving Drumhead Courts Martial. You’ll need them, Sinclair.
Is it just me or are we misusing the term “Due Process?”
Due process, to me, is just a name of a process. It is the process we should be discussing here.
For example, Due Process can involve the State demanding that anyone who wants to buy radio spectrum must wear red underpants on their head. If that is the process, then due process has been followed.
More than happy to be corrected because the Law to me is just one of my drinking, shooting and tennis mates and nothing more complex than that.