National Human Rights Consultation Submission 

AGWW-7Q9HF9 

Name: Don Willis 
Submission Text: 

Page 1 of 2 


While it is essential for individuals and minorities to be
 
protected from arbitrary and capricious government action, care is needed
 
when seeking to determine possible rights for inclusion under a statutory
 
charter of rights. For instance, while some rights may be regarded as
 
timeless (such as the right to vote and the right to participate and freely
 
speak in the political system) others are more time-bound (as illustrated
 
by the right to bear arms which exists under the American constitutional
 
arrangements) and should not be enshrined.
 

 
Another problem with seeking to codify rights is that there could be some
 
rights which should be recognised but which may inadvertently be omitted.
 
Furthermore, the way rights are delineated in statute could inadvertently
 
circumscribe the way they are subsequently interpreted and enjoyed. For
 
example, if the “right to participate in the political system” was codified
 
in this particular form it might be interpreted that there was no right to
 
engage outside of the already established, institutionalised political
 
structures. A further problem with codifying particular rights is that
 
doing so could adversely impact on the rights of others. For example,
 
enshrining the “right to practise freely the religion of one’s own
 
choosing” could result in members of some religions offending those of
 
other religions as a result of them insisting on their right to engage in
 
their particular rites and observances. In such situations, social
 
cohesion could adversely be affected.
 

 
It is particularly important to ensure that any codified rights do not have
 
unintended future consequences of an adverse nature. The importance in
 
this regard is illustrated by the following examples. The 1988 final
 
report of the Constitutional Commission recommended that the Commonwealth
 
Constitution be amended to include the prohibition against double jeopardy.
 
At that time the advances in DNA technology known today were not
 
anticipated. However, science has progressed to the point where DNA
 
technology can now be used to identify criminals even if they had been
 
previously acquitted by the courts. As a result, a number of Australian
 
States (South Australia, New South Wales, Queensland) have introduced legal
 
reforms since 2002 to allow the retrial in certain situations of persons
 
who have previously been acquitted where DNA evidence establishes the need
 
for such action. Such reforms would not have been possible had the
 
recommendations of the 1988 Constitutional Commission been supported all
 
the way through to constitutional change. Another example which
 
highlights the importance of care being taken to ensure any codified rights
 
do not have unintended consequences is the right to bear arms which exists
 
under America’s constitutional arrangements. While such a right may have
 
been appropriate in the context of early American life, it is questionable
 
whether it continues to be relevant in modern society particularly given
 
the high incidence of gun-related violence in that country. These two
 
examples demonstrate the need to ensure that codification of any particular
 
rights do not have unintended future consequences.
 

 
Finally, while there is an emphasis on “rights” there needs to be a
 
corresponding emphasis on “responsibilities”. Australian society is
 
already highly individualistic and the “rights emphasis” only entrenches
 
such a culture. An equal emphasis on “responsibilities” will help to bring
 
some balance to this situation by fostering a sense of community and mutual
 
obligation.
 

 
I trust these comments will be useful in your deliberations.
 

 
Yours faithfully
 
Don Willis 

Page 2 of 2