Another bloody bill of rights post

caglejihadThe 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?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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pedro
pedro
12 years ago

Lawyer Patrick Fitzgerald? From Brisbane I wonder? I wonder if you are the Pat Fitzgerald I know?

pedro
pedro
12 years ago

Ken, I pretty much agree with your points, but I would like the bill of rights in the constitution not legislation and I am against the use of the EA power to expand legislative authority for the commonwealth. No question that there are some good lessons to be learned from the US experience.

Issues like gay rights to marriage and abortion I think illustrate the difficulty of trying to put too much in. Not because I am against gay marriage, but because there are problems that flow from trying to micromanage social issues in a bill of rights. A general prohibition against discrimination sounds good until you start thinking about the reasonable exceptions. I suppose you can sum up this concern with the idea that a bill of rights helps define the citizen’s relationship with the state by placing bounds on the power of the state to interfere with the activities of the citizen.

John Greenfield
John Greenfield
12 years ago

Kenneth, one political campaign I vigorously joined had the caption, “if it’s not on, it’s not on”! Will you join in my solidarity and shouting from the barricades, “if there’s no bloody plebiscite, stick your Charter where the sun don’t shine, Luvvies!”?

Patrick
Patrick(@patrick)
12 years ago

Sorry, not really a lawyer and certainly not from Brisbane! Good thing is, as I proved to my colleagues yesterday, ‘Patrick Fitzgerald’ is completely anonymous even in the internet age. Even if you know where I work.

I basically agree with Ken’s further comments except on free speech. I would also like this minimalist type of Bill of Rights to be constitutional. If nothing else, that should nix most of the rest of the rights in that silly civil and political thing, and would definitely forever nix defamation of religion.

On free speech I think there is little enough harm in having it very broad. As for your amendments, well we already have political discussion, and arguably most religious discussion would be easily enough stuffed in there. The one area that is definitely not in there at the moment is the discussion of the judiciary, which I agree should be. But I think privacy is overrated. After all parliamentarians can say whatever they bloody want, why can’t we? Or what about this:
1 Neither Parliament nor any State shall make any law abridging the free discussion of public matters; or the right of the people peaceably to assemble.
Would that satisfy you? The effect of the 5th clause should ensure that there is no restriction on the current implied right, which I believe has to extend to the private lives of politicians in almost all cases.

So take II:
1 Neither Parliament nor any State shall make any law abridging the free discussion of public matters.
2 No person shall be deprived of life, liberty, or property, without due process of law[, according to its tenor].
3 In all criminal prosecutions giving rise to the potential for imprisonment for greater than 1 year, the accused shall enjoy the right to a speedy and public trial in which the ultimate question of guilt is decided by 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. [This right shall not apply to an individual taking active steps to frustrate its intent.]
4 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
[5 Rights explicitly recognised by this Constitution shall bind equally the States of Australia.]
6 The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others, which are inherently retained by the people.

Patrick
Patrick(@patrick)
12 years ago

NB: I actually don’t think there is much to worry about with the italicised bit about restricting the right to counsel and a fair trial. I can’t really imagine someone of any real means preferring a legal aid lawyer to their own team of lawyers. You can, quite simply, buy better justice at the margins, and anyone of any means faced with over a year in prison would in almost any conceivable circumstance do so.

However I know that the way I have drafted it it could also apply to the whole host of rights in number 3, that seems actually reasonable enough given the high standard of ‘active steps’. After all if someone deliberately leaks material to prejudice the jury, then they can forfeit their right to a jury, and if someone deliberately stonewalls then they should not be able to complain of a slow trial, etc. Arguably in fact as I have drafted it it may not even add anything.

pedro
pedro
12 years ago

I wonder whether the “public matters” limitation will be so easy to interpret. Without knowing the details of the Reno case Ken mentioned, I very much doubt that a free speech clause would materially undermine the protection of children. I’m not sure defamation laws are worth the price.

Gaby
Gaby(@gaby)
12 years ago

The various US court findings on gay marriage are not micromanaging social issues through a bill of rights. In reality, the micromanagement is the rather specious list of grounds used to justify legislative claims that marriage is exempt from the general rule against discrimination. If, for example, you read the Iowa decision, you’ll find a fairly regular exercise in constitutional interpretation.

The International Covenant on Civil and Political Rights, a document so profoundly dangerous and disturbing, that it was ratified by the Fraser government, does not have any provisions about defamation of religion.

That is the trouble with the anything but the US argument or anything but the UN arguments. There is not much correspondence between the evils that the various bills of lites seek to protect us from and what actually happens in those jurisdictions.

You can sincerely say, for example, you are not an opponent of gay marriage when you argue for that issue to be dealt with by parliamentary legislation rather than as a fundamental right.

That does not change your actual argument which is that the right to marry can be fundamental for heterosexuals and the subject of parliamentary grant for homosexuals. There may be a large constituency for a light bill of rights in Australia, I do not know. I do know a bill of rights that excludes homosexuals is going to miss out on at least one large constituency.

Most democracies regard the right to vote as fundamental. The US is actually an exception for historical reasons to do with the Three Fifths Compromise and the electoral college. The bill of lites argument runs that we must not emulate the US, but when the US has a glaring gap (a gap that was foundational to Bush v Gore) we calmly emulate that gap without comment. Even the Hawke government’s 1988 bill of lites would have guaranteed the right to vote.

We know from recent Australian history that the right to vote can be the target of partisan legislation. Why omit it?

pedro
pedro
12 years ago

Alan, you won’t find me arguing against gay marriage, but I don’t want a right of hetro marriage in the constitution either.