6 November 2005

Man of Steel or drama queen?

Sooner or later the government will run out of new ideas for laws against terrorism. The latest will in due course be endorsed by the opposition leader, but only if there's an amendment empowering the shooting on sight of all persons thought to be showing anything other than a small target. At the rate the government is inventing dire threats and direr laws I expect to read about the opposition leader endorsing summary execution for MPs suspended from parliament by about next Thursday. As is customary, the opposition will insist on not seeing the laws before agreeing to pass them. Clearly, these laws have no purpose except testing the opposition's ticker to see if they'll ever actually oppose any restriction of liberty.

I would've thought a Man of Steel would have better things to do than stampede the country into abolishing traditional liberties that have endured for some hundreds of years. Australia faced considerably more serious threats during the Second World War. No-one then proposed the nation would fall unless it passed a Reichstagsbrandverordnung forthwith. It's instructive to recall the text of that decree:

1. Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom (habeas corpus), freedom of opinion, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications, and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

Fortunately for the significant danger of falling into a Howard=Hitler argument, there is no bll of rights for Howard to suspend. Austraia's case is worse.

As Justice Nicholls writes

In considering this proposed legislation, it is important to remember that in Australia there is no effective human rights framework surrounding the new anti-terrorism legislation. Unlike other western democracies, we have no Bill of Rights and therefore no check upon extreme legislation of this type other than what can be found in the Constitution.

Similarly, unlike European countries including the UK, we are not party to any binding international instruments such as the European Convention on Human Rights and its five protocols, which enable European citizens to appeal to the European Court of Human Rights if domestic legislation or law is thought to be in breach of that Convention.

Additionally, the UK has passed human rights legislation of its own as have Canada, in the form of a constitutional Charter and New Zealand. The US has its own 18th century Bill of Rights, which nevertheless continues to provide real protection against governmental excesses.

There are differing models to be found of this type of legislation but the better models enable the court to read down legislation so as to be compatible with human rights requirements, or if this cannot be done, strike down the legislation.

Given a choice between a bill of rights and the sterling defence of Australian freedom by an opposition noted only for simultaneously being strident and supine, I think I'd take a bill of rights any day.

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