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I think it's about time that we Australians had a discussion about a constitutional bill of rights (modelled on Switzerland ideally). The common argument again

by cyphar 8y ago

I think it's about time that we Australians had a discussion about a constitutional bill of rights (modelled on Switzerland ideally). The common argument against this is that common law protections would be strong enough to make it unnecessary, but that's ignoring that governments can pass laws that end up invalidating older common law protections. And as we've seen in the past decade, our government (both Labor and the Liberals) have been slowly degrading our rights -- they effectively suspended habeas corpus in 2005. From memory, there are even restrictions on how much you can tell your lawyers about you being tried for terrorism! A constitutional referendum is going to be a very hard fight. But I think that the Australian public could see the problem if we compare ourselves to other nations -- the "it's all for national security" argument is specious given that we can show evidence of many countries which have such protections and still have national security protections. One of the most concerning things is that the canonical example that motivated this bill actually includes a presumption of guilt of the person being investigated. That's a great start...

schappim 8y ago
People like to wave a constitutional bill of rights (or lack of it) as an issue for Australia. Whilst that is true, our rights are just spread out within Australia's common law. This can actually be a good thing, as the laws are in theory easier to get changed for the times. Such as the right to bear arms[1]. [1] https://www.youtube.com/watch?v=RpeUznIhgLU
- cyphar 8y ago
  I mention this in my comment, the problem is precisely that it is so easy to invalidate protections in common law -- a new law can easily invalidate an old freedom. And yes, "the right to bear arms" being restricted in Australia is an example where this was a net positive. But invalidating habeas corpus, privacy, and free speech are all things that have been done by our government in the past decade. The ability for fundamental rights to be invalidated that easily should be seen as a much bigger problem than people seem to view it as. I used to be in the "we don't need a constitutional bill of rights, we have common law protections" camp as well. But the slow march to remove many of our rights has drastically changed my viewpoint on this topic. [+]: And while it might be inflammatory, it is entirely correct to refer to detention centers as "concentration camps" because they concentrate a section of the population -- in this case possible asylum seekers -- into a single place.
- dgzl 8y ago
  American rights aren't presented as rights that the people explicitly have (other than right to life, liberty and pursuit of happiness). Most Americans don't even realize that out Bill of Rights outlines implicit rights for citizens. That is, the laws say "government can make no law regarding this subject". This is important because if the government "gives you rights" then they're not actual rights, they're only temporary privileges that can be removed. No offense, but if the government of Australia is "giving" you your rights, then you don't actually have them.
  - cyphar 8y ago
    This is a very strange argument, and is one that a lot of Americans seem to believe. Is this purely because of the wording of the 10th Amendment? The reason I ask is because there isn't (as far as I know) a legal distinction between being given a freedom and there being a restriction such that "Congress shall make no law abridging $some_freedom". To test this theory, consider if there was a new amendment that completely invalidated the bill of rights. Would you still have the same freedoms you have today? Of course not -- so therefore (regardless of the framing) the bill of rights gives you certain rights.
sn41 8y ago
You could look at how India fixed such a loophole in its constitution based on the common law: This is of interest to any person interested in law, or mathematical logic. The rub of the whole thing is: define something called "the basic nature of the constitution", which is not part of the text of the constitution, and then mandate that no constitutional reform can violate the basic nature of the constitution. https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_o... There is a famous anecdote of Godel's Citizeship test where he claimed to have detected a loophole in the USA constitution whereby you can install a dictatorship through legal constitutional reform. He was famously shushed by Einstein. See the following article, for example (footnote 115 mentions the Indian Constitutional case). http://law.capital.edu/WorkArea/DownloadAsset.aspx?id=32584 http://law.capital.edu/WorkArea/DownloadAsset.aspx?id=32584
- mindslight 8y ago
  IMHO regarding Gödel's loophole, focusing on unconstrained amending is a red herring. Any set of rules can be superseded by external means, eg revolution. Spelling out a formal procedure to do so strengthens a constitution - the only weakness it adds is a slight moral authority from technically following the procedure being contained in the original document, but if popular opinion is already against the original spirit of the document, that's moot! My belief is that the loophole is more akin to layered complexity creating self-defeating contradictions - analogous to the technique used to to prove his first incompleteness theorem. Essentially, the law is not a consistent-incomplete system, but an inconsistent-complete one that can prove anything! The US Constitution only defines individual rights in terms of prohibitions on the government, it does not qualitatively prescribe them! And this is indeed the totalitarian shape our modern society has taken. When you run down the Bill of Rights, for each right you can see that its basic ethos has been effectively nullified - through requirements mandated by some third party non de jure yet de facto authority. For any right, you still do technically have the option to engage in a very narrow course of behavior that preserves it, but in practice this is irrelevant! And the real travesty is that for every such violation there is a straightforward chain of law that enabled it - handing the mob direct justification for why said violation is purportedly sensible and just!

by cyphar 8y ago

schappim 8y ago

People like to wave a constitutional bill of rights (or lack of it) as an issue for Australia. Whilst that is true, our rights are just spread out within Australia's common law. This can actually be a good thing, as the laws are in theory easier to get changed for the times. Such as the right to bear arms[1]. [1] https://www.youtube.com/watch?v=RpeUznIhgLU

cyphar 8y ago
I mention this in my comment, the problem is precisely that it is so easy to invalidate protections in common law -- a new law can easily invalidate an old freedom. And yes, "the right to bear arms" being restricted in Australia is an example where this was a net positive. But invalidating habeas corpus, privacy, and free speech are all things that have been done by our government in the past decade. The ability for fundamental rights to be invalidated that easily should be seen as a much bigger problem than people seem to view it as. I used to be in the "we don't need a constitutional bill of rights, we have common law protections" camp as well. But the slow march to remove many of our rights has drastically changed my viewpoint on this topic. [+]: And while it might be inflammatory, it is entirely correct to refer to detention centers as "concentration camps" because they concentrate a section of the population -- in this case possible asylum seekers -- into a single place.
dgzl 8y ago
American rights aren't presented as rights that the people explicitly have (other than right to life, liberty and pursuit of happiness). Most Americans don't even realize that out Bill of Rights outlines implicit rights for citizens. That is, the laws say "government can make no law regarding this subject". This is important because if the government "gives you rights" then they're not actual rights, they're only temporary privileges that can be removed. No offense, but if the government of Australia is "giving" you your rights, then you don't actually have them.
- cyphar 8y ago
  This is a very strange argument, and is one that a lot of Americans seem to believe. Is this purely because of the wording of the 10th Amendment? The reason I ask is because there isn't (as far as I know) a legal distinction between being given a freedom and there being a restriction such that "Congress shall make no law abridging $some_freedom". To test this theory, consider if there was a new amendment that completely invalidated the bill of rights. Would you still have the same freedoms you have today? Of course not -- so therefore (regardless of the framing) the bill of rights gives you certain rights.

sn41 8y ago

You could look at how India fixed such a loophole in its constitution based on the common law: This is of interest to any person interested in law, or mathematical logic. The rub of the whole thing is: define something called "the basic nature of the constitution", which is not part of the text of the constitution, and then mandate that no constitutional reform can violate the basic nature of the constitution. https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_o... There is a famous anecdote of Godel's Citizeship test where he claimed to have detected a loophole in the USA constitution whereby you can install a dictatorship through legal constitutional reform. He was famously shushed by Einstein. See the following article, for example (footnote 115 mentions the Indian Constitutional case). http://law.capital.edu/WorkArea/DownloadAsset.aspx?id=32584 http://law.capital.edu/WorkArea/DownloadAsset.aspx?id=32584

mindslight 8y ago
IMHO regarding Gödel's loophole, focusing on unconstrained amending is a red herring. Any set of rules can be superseded by external means, eg revolution. Spelling out a formal procedure to do so strengthens a constitution - the only weakness it adds is a slight moral authority from technically following the procedure being contained in the original document, but if popular opinion is already against the original spirit of the document, that's moot! My belief is that the loophole is more akin to layered complexity creating self-defeating contradictions - analogous to the technique used to to prove his first incompleteness theorem. Essentially, the law is not a consistent-incomplete system, but an inconsistent-complete one that can prove anything! The US Constitution only defines individual rights in terms of prohibitions on the government, it does not qualitatively prescribe them! And this is indeed the totalitarian shape our modern society has taken. When you run down the Bill of Rights, for each right you can see that its basic ethos has been effectively nullified - through requirements mandated by some third party non de jure yet de facto authority. For any right, you still do technically have the option to engage in a very narrow course of behavior that preserves it, but in practice this is irrelevant! And the real travesty is that for every such violation there is a straightforward chain of law that enabled it - handing the mob direct justification for why said violation is purportedly sensible and just!