So on that view this won’t change anything.

The other view accepts that position as a given but claims that they will gain greater force simply by the manner in which they, and other legislation as a result of that, will be intrepreted, contextually, by the courts. So that in fact it is a pretty big change, particularly in terms of the weight and significance it accords some pretty damn dodgy ideas of rights.

But I don’t think anyone seriously thinks we are changing the constitution, except perhaps a tiny bit at the margin. Whilst you and NPOV might be right about ‘the point’, that has precious little to do with the practice as far as I would guess!

NPOV, I share your POV.

WTF? You know what a constitution is, right?

Whatever “rights” we may have under existing legislation, they are just that – subject to the law. A bill of rights would reverse this relationship. Whether you like this idea or not, it’s pretty frickin’ different to what we’ve got.

However, property rights might make a significant change at the federal level. You may have noticed that the Government only resumed land in NT, not in other areas, from indigenous communities. It may have been because child abuse stopped at the border, or it could have been that the right to resume land in a State, as opposed to a territory, is accompanied by the right to just compensation for the former landholder.

I think I agree with the general point that a Bill of rights that recapitulates existing rights is useless, or will be used for unintended purposes and I haven’t actually seen anything that adds to our freedoms or protections arising out of the discussion.

Slavery – Islam. See Sudan and Mauritania, also Saudi Arabia (which also adds weight to the oft repeated argument athat Islam is often a great vehicle for Arab supremacism.). See recent cases in the U.S. e.g Saudi national Homaidan Al-Turki imprisoned for sexually assautling his maid and keeping her a virtual prisoner. Al-Turki stated: “The state has criminalized these basic Muslim behaviors. Attacking traditional Muslim behaviors was the focal point of the prosecution” whereas his his defense tried to argue “cultural differences”. See Suras 2:178, 2:221, 4:92, 5:89, and many more. This is why too, there has never been an anti-abolitionist movement from within Islam.

A different form of slavery, recently highlighted in Yemen. The reason why marrying off 8-10 year old girls is prevalent in Yemen and why the Yemeni government won’t oppose this practice on Islamic principles is because it’s what Mohammed did (Aisha). More recent reports confirm that the girl’s marriage was ‘terminated’ by virtue of the payment of ‘compensation’. There are plenty of Muslim feminists who oppose such barbarity, but despite all the publicity of this recent case, they are not getting much concrete support from the wider Muslim community especially male leaders and statesmen.

The case of the FLDS sect at the YFZ ranch currently all over the U.S. press is a sordid mix of children being forced into marriages while under the age of consent, as well as other state/religion issues concerning polygamy etc

Child sacrifice – well it still goes on in say, parts of India
as part of religious rituals.

Or are you going to say that none of these are not “modern” religions? Or that somehow good ol multi cult Australia is immune?

Murray Gleeson;
Michael McHugh;
William Gummow;
Geoffrey Nettle;
Tom Bathurst;
Brett Walker;
John Roberts (US);
Robert Goff (UK);
Peter Millet (UK); and
Beverley McLachlin (CAN).

:)

it dilutes real rights into mere quasi-boundaries. ie, at the same time as a real right might be more easily overriden because instead of being a traditional doctrine it is now expressly stated to be an overridable quasi-right, it also has to be weighed up against a non sequitur such as the right[sic] to eat or the right to cultural expression.

I dont think the right to freedom of expression should be weighed up against the right to cultural anything, to be honest.

.

That said, I don’t think proportionality is hard to fit into a common law system. What I think is undesirable is mixing up things in the calculus of proportionality, as the above quotes hopefully point out.

For example it’s amazing no-one has mentioned the problematic doctrine of proportionality in the context of this discussion. An almost inevitable result of introducing a Charter, it does not seem to fit very well in a common law system (viz, UK, Canada).

My point: leaving aside the political concerns (too much power to judges! too much power to parliament! we can’t trust judges! we can’t trust parliament!) there are an array of other concerns, not to be ignored.

Of course, in practice all this should mean is that no future government would ever consider stripping away welfare entitlements in a manner that could potentially lead to hunger or malnutrition, because they are knowingly breaching a previously agreed on Bill of Rights that defines what the nation considers an acceptable set of parameters by which human beings treat each other.

And whilst I kinda loosely agree on the broader point of criminal treatment, I can only repeat my comments above about the the difference between being in the domain of political and government action and defining that domain.

I certainly agree that the primary purpose of a Bill of Rights should be protection against oppressive government, and it’s fair enough to be concerned about one or two or the proposed entries in such a bill, but I can’t see the justification for the sort of general negativity against the idea that some have expressed.

Gummow, that is facetious and overlooks a genuine point. Payback has already been argued for, and excused, in the name of cultural practice (in the NT). Why shouldn’t it happen again? Surely an express right makes it even more likely?

NPOV, the quintessence of a ‘right’ is that it is ‘opposable’. That is, you can take your right to free expression and oppose a law or action on the grounds that it infringes your right. Against whom, and what laws or actions, might one usefully found one’s opposition in a right to eat? Sue the government to feed you?

I think that positive ‘rights’ are political and cultural issues. They are the proper domain of policy and government. I think that real rights should be just that: rights. They restrict and define the proper domain of policy and government.

The danger with this kind of bill is both that it gives positive rights a greater status than they ought have by establishing them as quasi-boundaries of policy and government action (broadly, Albrechtson’s point) and more importantly from my view, that it dilutes real rights into mere quasi-boundaries. ie, at the same time as a ‘real’ right might be more easily overriden because instead of being a traditional doctrine it is now expressly stated to be an overridable ‘quasi-right’, it also has to be weighed up against a non sequitur such as ‘the right[sic] to eat’ or ‘the right to cultural expression’.

I don’t think the right to freedom of expression should be weighed up against the ‘right’ to cultural anything, to be honest.

Name me one modern religion that practises child sacrifice – just one. Ditto child slavery.

Have to agree on the indigenous Australians though – those recent Northland woman abduction and payback riots got pretty nasty, though you won’t have heard much about it from the mainstream media. Talk about your cover-ups – if I hadn’t bumped into someone who was in the know at the local fish & chippie, I would never have heard about it.

“(1) All persons with a particular cultural, religious, racial or linguistic
background must not be denied the right, in community with other persons of
that background, to enjoy his or her culture, to declare and practise his or
her religion and to use his or her language.”

Not all cultural practices are worth preserving, Gummo. Child sacrifice and slavery are two that come readily to mind. As to indigenous Australians, old men taking 13 year old brides and inter-tribal warfare for the purpose of abducting women aren’t worth preserving either IMHO. Ditto for payback.

“Negative rights” per se may have originated as a form of “protection from government”, but most of the time they are violated is it surely by other individuals, not by government (when was the last time the government intentionally robbed anyone of their right to life in Australia?), and its been the government that has stepped in to penalize those responsible.
I don’t see that as significantly different to the government stepping in to ensure that individuals have the right to adequate food and shelter etc.

Is it interesting that it seems to be the right-wingers objecting to the idea here, when the U.S. concept is very much about ensuring that individuals are protected from over-reaching government power, surely something that right-wingers would agree is a good thing.

Because the US bill of rights is substantially one of negative (ie real) rights. It is interesting to note that the one you cite as the most problematic is problematic largely because it is a positively expressed right. A further, and apt, illustration is that they have intrepreted their right to religious freedom positively, with much rancour and unhappiness as a result, whilst we have interpreted an almost identical right to religious freedom negatively, and accordingly you probably didn’t even know we had one.

I would be lergely in favour of creating new real rights, such as the right to life; where it only so! I agreed with the right to freedom of expression, also, and to privacy (with some qualms).

Negative rights are indeed about protection from government. Inherent in positive rights is not protection from government but exposure to government.

Also, finally, there is a difference between conservatives here and in the US – in short, we are conserving different things! There is also a difference between libertarians and conservatives. Edmund Burke would have rolled in his grave to see the Human Rights Act in the UK! In fact Mill probably would have too given what a crock it is, but hopefully the point is clear enough even with such a bad example.