Another bloody bill of rights post

The Thomas v Mowbray thread has taken an unexpected but fascinating turn, at least from my viewpoint as a public lawyer.  It’s kickstarted a productive debate about the form of an Australian bill of rights.  As this is only tangentially related to the topic of the post, I’ve decided it merits a post of its own despite the  fact that I’ve written a few on this topic recently.

Pedro began by commenting:

Bring on a proper bill of rights in the constitution. Lets have the first to the nineth except the second and third. Im not sure the 10th is necessary with our constitution, but put it in if it is not already covered. Oh, and get rid of external affairs as a basis for increasing the field of legislative authority.

Lawyer Patrick Fitzgerald responded:

I do however support a bill of rights along the lines you suggest.

You should note, however, that we already have two-thirds of the first amendment, partly implied partly express. Likewise with the fifth – all we really want from that is the due process clause, and the tenth. The fourth I have doubts about, the seventh I dont think is helpful at all.

This would seem to suffice as additions:

1 Neither Parliament nor any State shall make any law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.
2 No person shall be deprived of life, liberty, or property, without due process of law.
3 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial before an impartial jury, 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 favor, and to have the Assistance of Counsel for his defence.
4 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
5 The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others, which are inherently retained by the people.

Religion (the establishment clause of the first amendment) and just terms (the takings clause of another) are already in there.

I then responded to Patrick:

On the bill of rights front, were in furious agreement except for the following points:

1. Id be happy enough with a Commonwealth legislative scheme along the lines you propose;

2. I think the free speech right should remain confined to political discussion, albeit that the definition of political should be widened to include religious questions (which more often than not involve political questions, especially these days) and questions concerning the fitness and performance of the judiciary (which have been held by courts at state level not to be political notwithstanding that Parliament dismisses them for misbehaviour or incapacity). A more general right to free speech runs foul of potentially competing rights to privacy and reputation, which would then need to be dealt with in some way and prioritised. Also a due process right would be enough to restrain the sillier aspects of Conroys current attempts to censor the Internet, and I would not like to see a general free speech right able to be employed to strike down reasonably sensible laws to protect kids from Internet porn etc such as those struck down in ACLU v Reno (1 and 2).

3. I dont think its either necessary or desirable to create a general right to jury trial for all offences including minor ones. I think it should be confined to serious crimes defined by reference to the number of years of imprisonment the crime potentially carries. Moreover, I think such a bill of rights provision should leave sufficient room for particular questions of expert evidence to be determined either by the judge alone or sitting with an expert assessor. This is a particular hobby horse of mine as you might have noticed from a recent post. I dont think the commonsense of juries assists in reliably assessing expert evidence that in many cases jurors have Buckleys chance of understanding. Mostly I suspect they just decide it on the basis of which conflicting expert acts most convincingly like Marcus Welby MD (or some present day wise, fatherly TV doctor figure – I dont watch those sorts of shows).

4. I think any due process freedom should expressly make clear that it must not be used to entrench any form of substantive due process. The US 5th and 14th amendments have been used in that way:

(a) to entrench laissez faire economic freedoms in the early part of the 20th century when the USSC had a conservative majority, and
(b) to entrench civil liberties like gay rights and abortion in the latter part of the 20th century when the Court had a liberal majority.

While Im in no sense an opponent either of gay rights or abortion, I think using a due process clause to substantively entrnech ANY rights is dishonest and constitutionally illegitimate. However, unless the limitation is made clear it would be open to a future court to apply US precedent to interpreting a due process clause.

5. The Commonwealth Constitution provisions for freedom of religion (s116) and property rights just compensation (51(xxxi)) should be extended to cover the States. That too could be done by ordinary federal legislation which WOULD be entrenched so far as the States were concerned because it would be enacted under the external affairs power partially implementing the terms of the ICCPR. This also applies to all the rights youre advocating, because all are contained in one form or another in the ICCPR.

6. I think the right to counsel ought to be conditioned by the same qualifications as the High Courts Dietrich doctrine already is, namely that the right to counsel at public expense only applies to serious crimes and as long as the accuseds inability to afford their own counsel is not their own fault (e.g. deliberately divesting assets). Note that two Justices, Gaudron and Deane JJ, asserted that the Dietrich right to counsel was grounded in constitutional implications derived from Chapter III (and thus already entrenched), although I suspect that position would not command much support on the present HCA bench.

I reckon the aggregate of all this is an extremely sensible “minimalist” legislated Commonwealth bill of rights position, but then I would say that, wouldn’t I? What do others think?