Human Rights and the Constitution

[@niccolobattistoni6733]

Thanks Professor, interesting topic as always!

[@JimCullen]

I would love to see a follow up if you find out what the examiners intended with this rather head-scratcher of a question.

[@OscarIredale]

Definitely! Anne should do a reaction to the markers comments when they are released later in the year

[@dferr18]

I always enjoy watching these videos and being educated, very rhought provoking also!

[@cesargodoy2920]

thanks professor I needed a good distraction today .as you might have heard we in America have a small event today . Id answer something like this "The Australian consitution has been a foundation which has allowed for further changes to match social and moral viewpoint.the refenderum mechanism guarantees that any changes will match the social and moral views of the time.thus the consitution is always if not always representative always fundamentally democratic .its strength lies not in always matching the popular view but of always being open to it" Although thats less legal and more political . thanks again prof Twomey

[@garving6696]

I caught this last night before it had been edited. Loved it.

[@constitutionalclarion1901]

Sorry - that was a debacle. I uploaded the wrong version. Much better to see the proper one!

[@surturz]

Haha ! I saw the unedited version too, it wasn’t bad !

[@anavictoriacarlos7297]

Good morning Professor, listening from Perth here. Thank you very much for this video.

[@tazgecko]

The "ethical standards" have me scratching my head. If "reflects" could be affects. Now that would be a good question for High School kids to ponder.

[@iwakeupsad]

Yeeaah thats gotta be it. Good insight.

[@lotsofLlamas]

I love your videos! Very informative

[@Mysticus11]

In your video on Tickle v Giggle the Constitution provided powers to invoke international human rights treaties, which do reflect changing social standards and ethics (at least on paper) ⚖️

[@maxleonard5723]

Another interesting case determined by the HCA today! I would very much look forward to your analysis of why ankle bracelets and curfews for stateless individuals are not within the purview of executive power!

[@constitutionalclarion1901]

Yes, I thought the same. Will do it as soon as I have time.

[@maxleonard5723]

@ thank you! You must be so busy with the number of video requests!

[@maysci6400]

I would have guessed they were asking about the interpretation of the external affairs power and how that allowed for Australia to implement human rights treaties.

[@pizzagogo6151]

Excellent always great to learn ( via informed & accurate!) Info on why Australia has developed the way ot has...although it was also an amusing reminder how good we are at Not passing referendums😂...( as an aside given the rate of failure , i really wish every referendum proposal eg voice to parliament, came with an attempt to quantify its likehood of success & proper cost analysis of how much & how it gets funded😉)

[@mindi2050]

We do know from experience that constitutional referendums fail if they're not supported by both major parties. As for the cost, the Australian Electoral Commission lists the cost (i.e. public money) of every referendum and election since federation. Referendums are massively expensive. I can't see us ever having another one, which worries me.

[@peterward9446]

Altho I very much appreciated Professor Twomey's - erudite as always - response to the HSC question in focus here - I can't help but wonder if the question was deliberately "loaded" so as to 'invite' a critical meditation on the part of the "aspiring-silks" as it were - on the fact that - *unlike* the UK - The Commonwealth of Australia *_does not have_* a Commonwealth Human Rights Act - or any kind of parallel to the *'The European Convention on Human Rights'* ... which guarantees a range of *_'grundnorm'_* rights considered to be so important - that they are fundamental to an *_Open-Society-Type_* - liberal-democracy, governed by the Rule of Law.

[@constitutionalclarion1901]

I can't claim to know what they intended when they set that question. Maybe the absence of a bill of rights could be included as part of the picture.

[@peterward9446]

@@constitutionalclarion1901 Cheers Prof. Twomey - surely in a bona fide *_"Open Society"_* the HSC examiners themselves should be required to explain *_exactly_* what they meant by the question - *_before_* the next annual HSC exam ... anyway - in so far as I can ascertain - only a paltry sum of five "human rights", are explicitly protected in the Commonwealth Constitution - as per: 1) the right to vote (Section 41) 2) protection against acquisition of property on unjust terms (Section 51 (xxxi)) 3) the right to a trial by jury (Section 80) 4) freedom of religion (Section 116) 5) prohibition of discrimination on the basis of State of residency (Section 117). .... perhaps you might consider a future meditation on the apparent reasons as to why the Delegates to the conventions thought that this particular 'handful' - as it were - *_would do_* ... also - if I've understood the history correctly - it was the Delegate Clarke [of the Hare-Clarke system] who - single handedly -actually wrote the draft which was eventually ratified as the Commonwealth Constitution .... ie. a Tasmanian polymath - a Scottish Baptist who reverted to a form of heretical Arian-Christianity ... under the Svengali-spell of the American polymath-rebel Moncure Daniel Conway (1832-1907) - [who the historian John d’Entremont describes as “the most thoroughgoing white male radical produced by the antebellum South”] ... is the actual *_'auteur'_* of the Australian Commonwealth Constitution *_!!!_* Surely a little deeper digging is called for re. the *_'deeper wellsprings'_* ... of the Commonwealth Constitution.

[@constitutionalclarion1901]

@@peterward9446 Andrew Inglis Clark wrote his own draft Constitution before the Constitutional Conventions met to draft the Constitution. Some of his drafting was influential, but he certainly did not write the final version single-handedly. He was not even a member of the 1897-1898 Constitution that wrote the final draft. Clark did want bits of the US Bill of Rights included. Even the pathetic s 117 originally came from a broader proposal to include 'due process of law' and equality before the law in the Constitution. But the framers of the Constitution were wary about such phrases, as they could be interpreted in many different ways (as indeed, has happened in the USA). They preferred to leave rights to the common law and trust that Parliaments would not unduly restrict them.

[@peterward9446]

@@constitutionalclarion1901 Cheers Prof. Twomey - I clearly got the somewhat 'embellished' Tasmanian version of events !! - & now stand corrected ... Clark's contribution appears to have been confined mainly to the 'gist' of the text of Chapter III - as per: Melbourne Law School PDF by W GBuss · Cited by 28 - Particularly in respect of Chapter III, the Australian Constitution was significantly influenced by. Clark's American-based Constitution. "Clark went to the 1891 Convention with a complete draft Constitution. In substantial parts, Clark’s Constitution was based on the United States Constitution (though within the framework of a constitutional monarchy under England’s ‘unwritten’ constitution), and he was unambiguous in attributing his proposed Constitution to its American source. After briefly discussing three existing models of federalism (Canada, Switzerland, and the United States) and explaining why the American model was particularly suitable for Australia, Clark wrote, ‘I have, therefore, drafted the accompanying Bill in accordance with the distinctive feature of the American Constitution as contrasted with the Constitution of the Canadian Dominion’; with respect to most of the content of his Constitution, Clark continued, ‘I have followed very closely the Constitution of the United States’."

[@maccanorton]

I hope you will give some grace as you know far more than I do, but I think a good answer could include a discussion of the treaties of head of power and how the High Court's changing interpretation of that power has led to human rights treaties to implemented in Australia.

[@constitutionalclarion1901]

Yes - good point. The interpretation of the external affairs power does permit change to occur through the implementation of treaties - although I'm not sure that this is actually the Constitution that is reflecting the changed values. It just provides a mechanism for that to occur. It comes back to the rather unclear wording of the question.

[@maccanorton]

@@constitutionalclarion1901 That makes sense. I think "Evaluate the extent to which Australia's Constitution has allowed the government to take action based on changing understandings of human rights" might have been better.

[@constitutionalclarion1901]

Yes - a much better question.

[@peterward9446]

Fun Fact: Sir Henry Parkes (1815-1896) is known as the "Father of Federation" for his role in establishing the Australian colonies as the Commonwealth of Australia in 1901. James Bryce - who was a contemporary of Albert Venn Dicey - published in 1888 The American Commonwealth -- Its detailed description of the practical operation of the United States Constitution was *_highly_* influential in the framing of the Australian Constitution in the 1890s. Sometime in the 1980's/90's I had reason to be doing some kind of legal research in the Uni of NSW main library ... & lo & behold what did I find on the shelves amongst dreary tomes of legal dross - but Sir Henry Parke's original - signed & annotated - 1888 copy of Bryce's "The American Commonwealth" - in virtually pristine condition. I therefore very much doubt that Australians hold their founding document - in any where near, the awe & reverence, in which the American Constitution is held, by Americans.

[@gregscally5119]

The US constitution is full of faults and is no longer fit for purpose. An electoral system which constantly varies from state to state, idiotic gun culture and a system easily manipulated by extremists. In fairness to the US founding fathers their dream of a democracy was a relatively novel idea ( ignoring ancient Greece) so inevitably the constitution they drew up would have weaknesses and faults. The American obsession about their constitution is holding the country back from implementing necessary changes to ensure the survivability of their democracy. There is no doubt Australia's founding fathers benefitted from study of US history and endeavoured to copy the best and eliminate the worst aspects of the US constitution. In that regard we can be thankful that they succeeded admirably.

[@cesargodoy2920]

@@gregscally5119 its not our obession with the consitution its just really hard to change.its important to note that orginally the states had many different interests so thats why we ended with things that are maybe out dated

[@mindi2050]

I think it depends on the Australian. I've heard plenty of Australians say: 'leave our Constitution alone', at the prospect of our Constitution being altered by referendum. Admittedly, they haven't necessarily ever so much as glanced at the Constitution. They just don't want it altered at all, because it's 'sacred' or something.

[@peterward9446]

@@gregscally5119 *re. "In fairness to the US founding fathers their dream of a democracy was a relatively novel idea ( ignoring ancient Greece) so inevitably the constitution they drew up would have weaknesses and faults."* I somehow doubt that they were - in any way shape or form - attempting to recreate the classical Athenian conception of the "demos" (qua - the common people or the sovereign people) *_actually wielding_* "kratos" (qua - 'Cratus' the god or personified spirit [daimon] of strength, might, power and sovereign rule) ... *_far from it, actually._* In the Athens of antiquity the allotted [ie. formed by lottery] Council of 500 set the agenda & prepared all decrees & resolutions. Randomly selected Legislative Panels (nomothetai) of1,001 citizens over age 30, had to approve new laws. The People’s Courts (dikasteria), usually 501, 1,001 or 1,501 citizens - also chosen by lot - could over-rule the People’s Assembly. Nearly all of the magistrates who carried out governmental business were also chosen by lot, usually in panels of 10 citizens. In both the USA & Australia - we have more of a defacto *_Oligarchic-Plutocracy_* ... than anything even *_remotely_* resembling *'Classical Athenian Democracy'.*

[@peterward9446]

The - "Horse & Buggy Era " ... Australian Constitution - which came into effect on January 1, 1901 - is not so much our "founding" document ... as our "foundering" epitaph ...

[@peteregan3862]

A leg location monitor is hardly a great imposition. Surprised the court found the Commonwealth could not monitor the location of people as per legislation. This is a huge change. I can't see the community or court being bothered by it twenty or thirty years ago. The government can still follow a person at close quarters and have their agent carry a sign saying criminal ahead.

[@constitutionalclarion1901]

This was one of the points of dispute between the majority and the dissenting judges in YBFZ. The problem with the leg monitor includes things like having to charge it twice a day for 90 minutes each time and thus needing to be near electricity outlets, etc. Have a look at paragraphs [57] to [62] of the majority judgment: www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/40.html.

[@billburr5881]

Didn't think us citizens had any rights under the constitution! For example - We are promised "fair compensation" when property is confiscated. I have yet to receive any compensation from the ATO when they take income tax off me. If my employer withholds my wages - that employer will be prosecuted under property crime. If the ATO takes my wages - it is no longer property - for some obscure reason!

[@constitutionalclarion1901]

For obvious reasons, s 51(xxxi) does not apply to certain things like the imposition of taxes, fines, conditions of bankruptcy, the confiscation of the profits of crime, etc. I might one day do a video about this.

[@thepoondragon]

As you have indicated in other videos, the constitution does not grant any rights. Only parliament can dictate what your rights are from one day to the next, they should be called privileges it would make more sense

[@mindi2050]

The Australian Constitution does give us some rights. We don't have a Bill of Rights like other liberal democracies for some strange reason but: 'The Constitution includes the right to trial by jury for certain offences, some protection of freedom of religion, an implied right to freedom of political communication, and the right to be paid a fair price if the government compulsorily acquires your property'.

[@braytongoodall2598]

@@mindi2050does the constitution provide an implied freedom of religion at the state level too, or only freedom against the imposition of a federal religion? (I haven't looked into it and surprises can be hiding anywhere)

[@constitutionalclarion1901]

Yes, the High Court has held that the implied freedom of political communication in the Commonwealth Constitution also extends to the States. (In my view, there are flaws in their reasoning in relation to some types of political communication at the State level, but they get to set the rules, rather than me).

[@SKW-12]

@@constitutionalclarion1901 How is the MAD Bill legitimate in terms of the Constitution? How can something be passed into law that creates a two-tiered censorship society with the lawmakers privileging themselves over everyone else? Is the guiding principle 'everyone equal under the law' not a groundstone in making ALL laws? Any insight is welcome. It's confusing that this Bill exists at all - but that it has just been voted through the Lower House seems like Aus politics has seriously come off the rails.

[@constitutionalclarion1901]

@@SKW-12 I'm not sure what you mean by the MAD Bill. Do you mean the one about misinformation? I'm giving evidence to a parliamentary committee about it next week. I'm also not sure what you mean by a two-tiered censorship society. Can you please be a bit clearer about what provisions you are talking about, so I can reply?

[@michaeldavis8103]

A constituion is pretty static. Not really compelling as to a more... "federalist" approach. Ipso facto, I reubuke A.J. Brown and his approach of disolving the States

[@michaeldavis8103]

I really want to drill down to that 1953 referendum. It did preserve the right to be a socialist and/or a communist, right?

[@constitutionalclarion1901]

@@michaeldavis8103 No, the failure of the communist party referendum didn't preserve any 'right'. But it did prevent the Commonwealth Parliament from gaining a power to make laws with respect to Communists and Communism that would have permitted persons to be deemed Communists and excluded from public service jobs, etc.

[@davidwilkie9551]

Australian Lawyers give clients the impression that morality and ethics are unjustified in the law. Lethal threats carry all the influence except for the financial stuff. Moot discussion here?

[@ImInterestedInApathyII]

Great new video to celebrate 25 years since Australia voted no to a republic!

[@toddb9313]

Given the Australian Bureau of Statistics failure to adequately count Indigenous people in the Census today, not sure if you could say they were really counted in the 1960s.

[@seanlander9321]

You’re confused between ‘indigenous’ and ‘aboriginal’.

[@toddb9313]

@@seanlander9321 No I'm Not.

[@seanlander9321]

@@toddb9313 In terms of the legislation you certainly are. ‘Aboriginal’ for instance was the definition of full-blooded aborigines, whereas indigenous doesn’t have that qualification.

[@toddb9313]

@@seanlander9321 In what legislation? If you are talking about the Constitutional interpretation prior to 1967 the definition was taken to be of someone more than 50% Aboriginal blood, which does not alter the fact that Indigenous people were barely counted at all in the 1960s when it came to censuses and they still have a problem of gaining an accurate count today of Indigenous peoples.

[@seanlander9321]

@ More than 50% 😂.

[@aussieandy67]

Im from Victoria I grew up being tought a Bull Bar was a Boong Bar. I asked why it was called that the answer. When you quote'Hit an Abbo they go Boong'. Unquote I was about 7at the time. Apparently it was legal in the day as long as you pushed them off the road. Is this true or myth. I have never seen this and im 57 very soon. Im actually amazed to hear fauna and Wildlife was a myth. I have see police issues thats all.

[@seanlander9321]

Goodness gracious what a load of nonsense.

[@mindi2050]

@@seanlander9321 Horrible nonsense.

[@aussieandy67]

Thankyou I'm glad you could clear that one up it is a common belief among aboriginal people to which I am part there of. Education needs to be done on this topic.