Sorry, Rod, my email server went down just after five last night.
Rod Hagen wrote:
> Yes, BUT.... If a highly codified system had been in place then Mabo would
> not have been possible! It was the late Ron Castan's common law arguments
> which won the day. It would simply not have been politically possible to
> get legislation equating to the original Mabo decision created by the
> Australian parliament at any time in my lifetime.
You're always very eloquent and much better versed in the legal niceties Rod.
BUT...;-) I'll give a go at a disagreement with your conclusions.
First of all, Canada's Bill of Rights has not impeded the recognition of aboriginal
land rights there. It is
true that some were covered by treaties but certainly not all. It is my understanding
(I may be wrong) that
common law doesn't disappear in the presence of codified law and may be called upon to
determine the
interpretation of codified law.
As far as Mabo is concerned, common law would still have recognised the 'interest in
land' (title) that
Aboriginal Australians had always had but a Bill of Rights might have prevented the
winding back of
Aboriginal *people's* rights under Wik. The CERD conclusions deal with human rights
with respect to land and
a Bill of Rights might have done the same.
> I tend to share Tim's reservations about excessive codification. Such
> processes today tend to favour those who already possess power, rather than
> those who have little access to it. The Native Title Act provides a good
> example. For the most part the codification involved in the Native Title
> Act now results in a reduction of common law rights.
With a Bill of Rights, and depending on what it contained, the codifications would
have been limited by what
was possible to codify.
> Codified systems are
> very susceptible to the political whims of the day. Sure, you can get a
> "good" document on occasion, but you can also end up with a real doozy (I
> wonder how many less US citizens - largely wives and children - would have
> lived much longer lives if the "right to bear arms" wasn't enshrined in
> the US document!). As Susanne Martin points out in another post the
> existence of the Bill of Rights in the US doesn't seem to have had any
> substantial benefit in terms of social equity when compared to the
> Australian system.
OK try this. Think about what America would have been without a Bill of Rights! This
is a place where just
last month the State of Kansas outlawed the teaching of "Darwinism" in all the schools
in the State!
And as far as the 'right to bear arms' goes... this is what is in the Bill of Rights:
"II - Right to keep and bear arms
A well-regulated militia, being necessary to the security of a free State,
the right of the people
to keep and bear arms, shall not be
infringed."
It pertained to the right of the people in the militia to keep and bear arms in order
to defend the State.
As to the comment about codified laws I disagree again. ;-) This government and its
friends do not recognise
that they have done anything wrong unless they have actually broken a codified law.
Ethics and the spirit of
the law they do not acknowledge. This makes it necessary to have codified laws to
protect the people from
the whims of government.
<snip>
> Mmm. I haven't heard it suggested that the passage of the referendum would affect
>the existing conventions
> of government and law.
After seeing how Howard treated his 'strict code for ministerial conduct' how long do
you think it would be
before he decided that a republic was a whole new ball game and would push the limits
as far as he could to
his own advantage? This is the man who appointed himself nominal 'head of state' in
order to open the
Olympics!
> Well I don't think I'm an authoritarian but I think there are very good
> reasons for being afraid of the "democracy" in many situations,
> particularly where the rights of minorities are concerned.
No system is perfect but it must be looked at how it works over time.
> If the
> "peoples'" voice had prevailed in the Myall Creek Massacre trials in NSW in
> 1836 everyone would have got off, probably with a knighthood and a new gun
> thrown in for good measure!
Did the 'people' have a right to vote in a trial at the time?
Is it any different today when the hysterical revenge seekers try to influence the
outcomes by way of
talkback radio?
> There are many times when the rights of
> minorities or of the individual have to be upheld against the views of the
> majority. "Democracy" is fine for many purposes, but it can lead to tyranny
> just as easily as any other system unless there are processes to prevent
> its abuse. Look at the outpourings of the staunchly democratic "Bulletin"
> magazine in the late 1800's if you want to see just how nasty democracy can
> be to minority groups. We didn't have a "White Australia" policy for
> decades beacuse of the wishes of power elites. We had it because it was
> politically expedient - to advocate its overthrow invoked the wrath of the
> democratic majority.
But these are not the failings of democracy but the failings of education and
political will.
<snip>
> That's a good example of what can "go wrong" perhaps, but what are the
> "ways of ensuring it doesn't"? They aren't immediately apparent to me.
> Even Megawati's parties, of course, received far less than 50% of the
> popular vote in Indonesia. Does this mean her elevation to president would
> have involved "the will of the people"? I don't think it really would have
> any more than the current system there.
Her party received more votes (36% I believe) than any other party. And yet, as leader
of that party, and
the representative system in the Assembly, she stood to be completely ignored in the
wheeling and dealing.
That would equate to Labor and the independents forming a government but one of the
Independents being
chosen Premier by the backroom wheeling and dealing of the Libs and the Nats with the
other independents.
<snip>
> If I had to vote on the notion of a "Bill of Rights" I'd be much more
> concerned and much more sceptical. I'd really want to be told how and why
> it was better than the common law coupled with legislation as a means of
> upholding the rights of minorities and individuals.
To me, a Bill of Rights is a necessity because common law coupled with legislation
depends so much on the
disposition of the government of the day. Human rights and rights of citizens should
not be subject to the
goodwill of the government but should enshrine certain basic values and rights. This
does not mean an
immutable document but one that can be improved over time.
I guess I am not as trusting of political intentions and the powers that instigate
them as some others. ;-)
Democracy is something very precious and it should be guarded or we will lose it. We
cannot depend on the
goodwill of any particular government as many countries around the world can attest to.
Trudy
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