PDC: Bill of Rights Working Group

Working group report

This Working Group (WG) was established by the Policy Development Committee (PDC) on 23 January 2013.

Recommendation

The Bill of Rights working group recommends the inclusion of the following into a referendum.

Platform amendment

Australia is one of the few remaining western democracies who's citizens and residents lack any significant, constitutionally declared rights. This lack of protection creates an imbalance of power between individuals and the state, and poses risks to privacy, free speech and individual choice. A Bill of Rights is overdue as a way to restore balance and provide unambiguous checks on the creeping intrusion of the state into private life.

We propose a referendum to alter the Australian Constitution and include a Bill of Rights, codifying a basic set of human rights and freedoms[1]. The Pirate Party proposal incorporates the most fundamental and essential elements of the United Nations Universal Declaration of Human Rights[2], the United Nations International Covenant on Civil and Political Rights[3] and the United Nations International Covenant on Economic, Social and Cultural Rights[4].

Protecting rights and freedoms

The following rights and freedoms should only be construed as applying to natural persons as opposed to corporations or other non-natural entities. None of the following rights and freedoms should be construed as enabling the violation of other rights or freedoms. Where conflicting rights or freedoms are found to occur, the resolution should be based on the greater overall good.

The individual is the ultimate minority, and these rights are designed to protect the private lives and rights of individuals. Broader rights (which are often assigned on the basis of belonging to an identity group) are less prominent, as these potentially impose subjectivity, conflict with other rights, and drive burdensome litigation. Rights and freedoms not mentioned here may be granted through other laws and, where not covered by law, are left to the people.

Rights and freedoms should be considered to apply collectively (thus, various combinations of rights exclude practices such as slavery).

People may not sell, trade or otherwise contractually sign away these rights.

Policy text

The Pirate Party will sponsor a referendum to introduce a Bill of Rights as a way to protect basic liberties.

• Life and Death
  • The right not to have your life taken from you.
    • Any application of the death penalty will be unconstitutional.
  • The right to end your own life should you explicitly, in right-mind and without coercion, choose to do so.
    • This allows euthanasia, provided that the conditions listed above are legally confirmed.
  • The right to control your body and health.

• Thought and Belief
  • Freedom of thought, conscience and belief.
    • Includes freedom from compulsion to adhere to another's beliefs, and protection against imposition of such beliefs through law.

• Communication and Expression
  • Freedom of speech, communication and the right to express your thoughts or beliefs.
    • This applies to all mediums of communication but does not guarantee that the medium will be provided, merely that access may not be removed by the state.
      • This specifically stops laws such as blocking of Internet access for Copyright infringement.
    • This right does not include a right to be heard, or impose a duty on anyone to listen.
    • This applies regardless of the purpose of communication.
    • The right to express an opinion will be protected without exception.
    • There is no right to not be offended by the free expression of the thoughts or beliefs of others.
    • Exclusions:
      • Direct attempts to bring about the use of force against another person.
      • Intentional, false statements of fact (slander, libel, false advertising).
      • Direct threats.

• Fair Legal Process
  • Habeas corpus - the right for a person under arrest to be brought before a judge or into court.
  • Right to trial by a jury of your peers for criminal proceedings.
  • Right to legal representation.
    • Provision of lawyer for defence.
    • Self defence.
  • Right to not incriminate yourself.
  • Freedom from retroactive legislation.
    • Protection will apply to anyone found guilty of acts that were not crimes when committed.
  • Right to freely access and copy all laws and public judicial proceedings.
  • No prison for breach of contract.

• Privacy
  • Privacy for homes, property and effects
    • No illegal search & seizure.
    • Covers any invasion of privacy not authorized by warrant issued on probable cause.
  • Privacy of Communication.
    • Excludes communication in open spaces with general public access or public forums.
      • Exceptions from exclusion:
        • Targeted recording of communications without warrant issued on probably cause
        • Dragnet, state-sponsored recording of communication, which allows after-the-fact targeting of any individual
    • Public officials, in performance of official, or purportedly official, duties, may be recorded without constraint.
    • This protection will apply independently of communications medium.

• Liberty, Movement, Assembly and Association
  • The right to personal liberty.
  • Protection against arrest or detainment without cause or due process.
    • On detention, the right to be given written evidence of detention, including officers involved and reasons for detention.
  • Freedom of movement.
  • Protection against forcible constraint of movement without cause or due process.
  • Freedom to peacefully assemble in public or private.
  • Freedom to associate with others.

• Political Participation
  • Right to participate in civil and political life.
    • Includes right of any adult citizen to run for any government office.
    • Includes right of any adult citizen to join political parties or activist groups.
    • Includes right of any adult citizen to vote.
    • Is not nullified by civil or criminal status.
    • This should not be construed as taking away any existing right to civil or political participation.
  • The government shall not pass laws intended to limit participation [5][6].

• Property
  • The right to own property and not have it unlawfully taken from you.
  • This right only extends to physical property where acquisition removes it from possession of another person.
  • Intellectual and other property rights schemes will remain an issue for the legislature.

• Non-Discrimination
  • The right for all permanent residents and adult citizens to be treated equally by the state.
    • Guarantees freedom from discrimination by government, based on any arbitrary or generalised condition, including gender, age, sexual orientation, race, religion (or lack thereof), social sub-cultural and political affiliation.

Citations

[1] Julian Burnside, QC on why it is time for an Australian Bill of Rights: http://www.julianburnside.com.au/It%27s%20Time.htm, (accessed 2 April, 2013).

[2] United Nations - Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/, (accessed 2 April, 2013).

[3] United Nations - International Covenant on Civil and Political Rights (1966), http://en.wikisource.org/wiki/International_Covenant_on_Civil_and_Political_Rights, (accessed 2 April, 2013).

[4] United Nations - International Covenant on Economic, Social and Cultural Rights (1966), http://en.wikisource.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights, (accessed 2 April, 2013).

[5] Pirate Party Australia Blog article https://pirateparty.org.au/2013/02/07/parliament-dismantling-democratic-institutions/, (accessed 2 April, 2013).

[6] Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012, http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/1863084/upload_binary/1863084.pdf;fileType=application%2Fpdf (accessed 2 April, 2013).

Got feedback or suggestions? Send us an email at [email protected].

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