Hi Tony,
Another great post.
I've always been pretty convinced by arguments for a legislative bill of
rights, as opposed to a constitutional one, mainly on the grounds that it
allowed ongoing scrutiny by the duly elected parliament. I have a bias in
general for open discussion in a forum (however flawed) like parliament
(though I'd also like to see lots more and better forums developed, but
that's another topic). The notion that matters of rights (or anything else)
would be decided by an unelected, unappellable body like the High Court
seemed pretty undemocratic, even if that's how they do it in the US. But I
can see clearly your point of view on this - my logic only stands up if
there is a strong trust in the parliament as a fair and representative body
and one that will remain so on an ongoing basis. Your arguments for the
entrenchment of rights in the constitution, making them inalienable, is
pretty compelling.
Though I can see, should calls for a bill of rights (BOR) get up a head of
steam, that the legislative version would be offered as 'moderate' or
'evolutionary' change as against the 'radical' change of the constitutional
route. Ten to one those argument would be mounted. I wonder, then, what
you would think of the realpolitik argument that a legislative BOR is better
than nothing? I suspect I know your answer....
I was wondering also how you see a treaty and a bill of rights working
together?
Also, I had another question for you in a post you might have missed so I'll
include it here just in case. Apologies if you've already seen it. It
arises from Geoff Clark's recent speech on a treaty.....
Another of Clarke's points that was of interest was the following:
<begin excerpt>
Firstly, I am convinced that there must be a national treaty put in
place before there is any devolution to local or regional treaties.
During the 'Makarrata' debate conducted by the NAC there was a
widespread view that the various groups of Aboriginal and Torres Strait
Islander people should be negotiating, as sovereign people in there own
right, their own treaties, and without interference from other indigenous
groups.
This became a problem at that time, in the 1980s, and contributed
(although perhaps in only a small way) to the lack of momentum in
obtaining government commitment to the treaty concept.
Further the separate and uncoordinated negotiation of treaties has the
potential:
* to result in unequal results for different groups,
* to lead to omission of fundamental provisions in treaties, and
* to cause a blockage through uncoordinated demands upon government
and professional services.
A national treaty could and should serve as the standard-setting
document for local or regional treaties. It could ensure that basic
elements are addressed in all treaties. It could ensure that basic rights
and
provisions are delivered where other treaties have not or will not be
negotiated.
If a national treaty is to be prepared then it is necessary that the
Aboriginal and Torres Strait Islander people become committed to that
purpose and remain disciplined in following a set course of procedure.
It is counter-productive for people to 'splinter' from the national agenda,
to claim that they do not accept the national approach. This will
happen of course. There is no way to prevent it.
<end excerpt>
I'd be interested to hear Tony Spiers view on this as he wrote forcefully a
while back:
"The S-word for these groups is not "Sorry", it is "SOVEREIGNTY" -- not
as a grant of racist patronage from Her Majesty's Parliament, but something
we ourselves assert. We cannot afford to compromise on matters of basic
principle. THE ONLY TREATIES OUR GREAT GRANDCHILDREN WILL RESPECT US FOR
ARE THE TREATIES WE SIGN WITH EACH OTHER."
I guess I'm just asking you to expand on who you think should actually be
party to any treaty.
Cheers
Tim
"Injustice arises when equals are treated unequally and also when unequals
are treated equally."
Aristotle
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