A Case for a Bill of Rights

I am a civil libertarian. That is to say that I believe that people's fundamental freedoms are paramount. The government is not a separate tool to control the people. It is a tool of the people, by the people and for the people. I don't believe that governments have rights, other than those that we bestow upon them. So around a dozen years ago, when given the chance to overthrow our pointless monarch, Queen Elizabeth II, I said no.


"Whaaaa?" I hear you semi-disinterestedly mumble at the screen.

I read our constitution back then, well before I had to as part of my studies. All it did was replace Queen or Governor General with President. Yup, that was pretty much it. I had recently started a computer science degree when the referendum was being planned, so maybe it was my software developery desire to delete crap, but I just couldn't bring myself to vote for anything that still contained gems like section 95 (skip it, it's boring):

Customs duties of Western Australia

     Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth. 

     But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four‑fifths, three‑fifths, two‑fifths, and one‑fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties.

     If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth.

Becoming a republic is a pretty big deal. It's the one and only time that we get a real chance to overhaul our constitution in order to delete the crud and improve the remainder. Around half of the document is like section 95, in that it is only relevant in an historical context due to time-limited application. That stuff should go. We can always go back and look at the old version if we're interested, so there is no need to keep it around.

Then, there is the clearly-missing content: An acknowledgement of our human rights.

A limited right to freedom of political communication, which relies on some creative implication by the high court, is not good enough. I understand the debate around this topic. There are lots of people, even libertarians, who believe that it is not necessary to document in a constitution what our rights are, because they are our rights whether or not they are written down. There's a lot to be said for this argument. James Madison, himself, who basically wrote the United States Constitution, and later the Bill of Rights, thought that enumeration of rights was unnecessary and impossible, hence he put in the 9th amendment, which explicitly states that the Bill of Rights is not a closed enumeration.

In the U.S., they still ended up implementing a Bill of Rights anyway, and despite all the issues around the Occupy Wall Street protests, including police brutality in Denver, Portland and Oakland, they still have generally well-protected rights when compared to Australia. In part, this is because their constitution was drafted with the intent of being a specific, closed enumeration of powers granted by the people to the government. Australia's constitution is far more forgiving, and therefore it is far easier for the federal government to expand its own powers.

For example, compare the U.S. copyright clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

with the Australian equivalent:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to, inter alia, copyrights, patents of inventions and designs, and trade marks.

The powers granted to the Australian parliament with respect to copyrights and patents have no requirements either for legislation to promote progress, nor to be limited by time.

So, while the rights explicitly granted to people in the U.S. have been gradually eroded over time, many of them still hold up quite well due to more explicit drafting, and it has taken around 230 years for them to break down to where they are now. We, on the other hand, are relying on the implications that James Madison would have preferred. But other than where implications can be drawn directly from the text of the constitution, the High Court doesn't acknowledge these implied rights. Nor does our combined legislative/executive branch of government, so we're SOL.

And that's the problem with not having an explicit Bill of Rights: At some point, if the branches of the government stop acknowledging them, they just kind of disappear. If we the people are the keepers of the constitution, not the government, then there should be nothing wrong with acknowledging our own rights.

And that is the main reason I voted no to the republic: I don't want to re-found this country on more of the same old framework for abuse. We need clearly acknowledged rights. They need to be so clear, that when the government starts doing that weasly thing where they redefine the meaning of words (like "terrorist"), or when someone is unlawfully arrested without the police being punished, or some other civil liberties abuse is committed, then we know it's happened, and we know there is no way that the government believes it didn't happen.

When these violations occur habitually, the government has stopped serving their purpose of protecting our unalienable rights. And "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government". But we can only do that if we're all on the same page about what rights we have.

So if we're going to have a new constitution, we need to go back to the drawing board and write it properly.