Unlike most similar liberal democracies, Australia has no Bill of Rights to protect human rights in a single document. It's time to change that, writes Renée Brack.
Recently while attending a Thanksgiving dinner with real US food cooked by real-life US citizens, my fellow diners and I marvelled that Australia does not protect its people with a Bill Of Rights.
The Americans were appalled that sniffer dogs and police searches were discretionary in most of Australia and didn’t require ‘probable cause’, as per Fourth Amendment to the United States Constitution.
So why doesn't Australia have a Bill Of Rights?
Currently, state and territory governments can make their own laws and enforce them with discretionary power.
What’s happening in Queensland with the Anti-Bikie legislation is like a sequel to George Orwell’s classic 1984. It's the kind of law where people on motorbikes can be allegedly harassed while escorting a hearse to a woman’s funeral. It's the kind of laws that are criminalising innocent people.
Taken to its logical extreme it quickly gets absurd - such as the instance where three bikies waiting to testify at a courthouse were ordered to disperse immediately or face arrest and a mandatory six months jail sentence. It sounds like the punchline to a bad joke. You couldn't make this stuff up.
There’s also pressure on publicans to police their own premises and identify bikie gang members by their attire and tattoos. Add the bushy beard that are so fashionable right now and about half of Gen Y is going to end up in this discriminatory net that renders you guilty until proven innocent.
What the United States Bill of Rights does is provide protection for people by endowing them with unassailable rights regarding freedom of speech, movement, religion and judicial process.
Given that Australia implemented a fairly successful guns buy-back scheme, it’s safe to say the right to bear arms won’t be in an Australian Bill Of Rights.
So what basic tenets should an Australian Bill Of Rights have?
First, it needs to be federal – not determined by single states and territories. Secondly, it needs to be fully inclusive of all citizens regardless of race, creed or colour.
The International Bill Of Human Rights has a couple of points we could use:
- Article 9 - No one shall be subjected to arbitrary arrest, detention or exile.
- Article 11 – Everyone charged with a penal offence has the right to be presumed innocent until proved guilty.
We need a tenet about ‘cruel and unusual punishment’ especially in light of possible legislation that would force bikie gang members to wear colours while in prison. Well, one colour in particular. Pink. That may not be cruel but it is unusual.
Australia is a signatory on all five treaties that make up the UN International Bill Of Human Rights. In 2004, former Prime Minister John Howard publicly supported Iraq having a Bill Of Rights but would not consider one for Australia.
Fundamental freedoms and rights of Australian citizens are not protected by our own national law. And if the anti-bikie legislation is anything to go by, we are already in breach of International Human Rights. Just take a look at Articles 9 and 11.
Even scarier than the bikie legislation is the crackdown on parties too. Be prepared to get arrested, jailed for a year and cop a $12,000 fine if a three or more of you with beards, tattoos and motorbikes head to a Christmas party and are overheard swearing. The arbitrary ‘breach of peace’ law can be enforced.
It’s International Human Rights Day on December 10. So let’s get active.
What do you think the tenets of the Australian Bill Of Rights should be?
Renée Brack is a journalist, media producer and adventurer.