Free Speech

The fast takeup of the internet has seemingly caught most of the world governments “flat footed”. As more and more people become outraged at neverending government corruptions, they seek to have their voices heard.

As a result governments are attempting to restrict free speech. The pre-existing so called “main stream media” (that have so much to loose) constantly denegrate the blogsphere/twitsphere etc (internet media) as being substandard.

Perhaps the words used by writers on the internet do not require the reader to use a dictionary.. Perhaps sometimes (I dont use a spell checker) there are mistakes in grammer, diction and spelling. (Meh)

As long as the wtiters thoughts are made plain.. I don’t have a problem with errors in grammer. Nor do I have a problem huge content errors. Like most people, I do not base my judgement on ONE blog entry. I read many comments before I make a decision on a subject. I seriously doubt anyone just reads “one madmans” atricle and then runs with it as being truth. (Isn’t that a main stream media trick?)

So free speech should not be filtered or hidden by governments.

Instead governments should adopt transparency as the answer to growing anti-government sentiments. Rather than attempting to filter the internet. Clean up the mess THEY have created so there is nothing for people to complain about.

2014-10-19 Free Speech

Australia’s national security laws are ushering in a reign of terror

Only a handful of politicians have resisted Australia’s Brave New World of national security laws

By: David Leyonhjelm

Published: theguardian.com, Saturday 18 October 2014 10.00 AEST

On the night of 25 September 2014, attorney general George Brandis was taking Australia into a reign of terror. There were only a handful of witnesses, even though there were seats for hundreds and cameras covering every angle.
He was shepherding into law a bill that gives our spies and their friends a licence to injure, to embed malware into computers, to break into the houses of people suspected of nothing, and to arm and train rebel groups to overthrow governments in foreign countries.

A bill to jail anyone who reports on past corruption and misconduct in our spy agency. A bill so fuelled by paranoia that it seeks to jail spies who dare to use a photocopier without an explanation.

Three exasperated senators stood in opposition to the bill at one end of the tennis-court-sized chamber. A trio not used to standing together – senator Xenophon, senator Ludlum and me. A trio armed with too few votes, and whose weapons of reason were useless in the absence of open ears and minds.

At the other end of the chamber were the closed ears and minds of Brandis and his Labor counterpart in the senate, senator Jacinta Collins.

The chamber was otherwise almost empty, save for a few clerks and staffers.

The Palmer United Party (PUP) senators had just left the chamber, after successfully amending the bill to add their personal draconian touch. They proposed a tenfold increase in the penalty for disclosing the identity of a spy. The government and opposition, not wanting to seem soft, backed the PUP thought bubble despite expert groups and security agencies seeing such a change as unwarranted.

The PUP senators then joined Coalition and Labor backbenchers for dinner in the parliamentary dining room. The backbenchers needn’t hear the arguments against the bill. They would vote for the bill because their leaders told them to do so. It could have been to reintroduce the death penalty; their vote would still be yes.

The media were missing from the galleries - despite this being one of the most important moments for press freedom in Australia’s history – because the attorney-general had sprung a surprise sitting on everyone and the journalists had gone home.

So our unlikely trio soldiered on in the near empty chamber. Each of us attempted the mildest of amendments to inch Australia back from the attorney-general’s Brave New World.

We attempted to limit our spies to hacking 20 computers per warrant. To limit hacking to whatever was necessary to carry out an authorised operation. To remove the offence of disclosing intelligence information in instances where no one is endangered and no operation is prejudiced. To remove the offence in instances where disclosure is in the public interest, such as disclosures of Asio corruption and misconduct. To require judges to consider the public interest when sentencing someone for disclosing intelligence information. To ensure the law only stays on the books until 2025.

We even attempted to amend what seems like a clear drafting error: that the attorney-general commits an offence when he discloses general information about past intelligence operations.

In spite of an earlier commitment to consider our amendments, the attorney-general summarily dismissed them all.

So attention then turned to Labor’s position.

Senator Collins listened carefully to our amendments and responded that they were “minimalist” and “may indeed warrant further consideration”. She then went on to say that Labor would not be supporting any of the cross-benchers amendments.

It was a jaw-dropping, George Costanza inspired, do-the-opposite moment. Had anyone been in the chamber, there would have been gasps of disbelief. Collins went on to explain that Labor would vote the government’s bill into law, but would consider fixing up the law at a later stage.

Now while I am new in this job, I can count. Labor can’t fix up the law once it has been passed in the Senate. They don’t have the numbers in the House of Representatives.

The bill is now the law. And finally, too late, no less a Labor figure than Anthony Albanese refers to it as draconian.

September 25 was a bad day for freedom in Australia.

By: David Leyonhjelm

Published: theguardian.com, Saturday 18 October 2014 10.00 AEST

See: http://www.theguardian.com/commentisfree/2014/oct/18/australias-national-security-laws-are-ushering-in-a-reign-of-terror

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2012-01-19 Free Speech

See: http://www.burntorangereport.com/diary/11747/sopa-author-lamar-smith-rtx-breaks-copyright-law-on-his-own-website

  1. SOPA Author Lamar Smith (Texas Republican) Breaks Copyright Law on His Own Website.

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2011-02-13 Free Speech

(Thanks to Sarah for the Civic participation task.. *wink)

Should Australia have a bill of rights?

Introduction:

Each attempt to introduce a bill of rights in Australian law has proved unsuccessful. As stated by Professor George Williams:

“…In each case, proponents of change have been unable to inspire Australians with the simple idea that improving the protection of their rights is a change for the better.”

Firstly, the general purpose of a bill of rights is;

“To set limits on what the government can and cannot do in regard to personal liberties.”

In March The Australian has printed an article “Rights Bill is Still a Threat”, which has reiterated the chance of a bill of rights in Australia . Australia appears to be the only developed democracy in the world without a bill of rights. Australia’s National Human Rights Consultation Committee found more than 80 per cent of the submissions were supporting a bill of rights . Accordingly, should Australia have a bill of rights?

Models suitable for Australia

Broadly speaking, a bill of rights can be a weak or a strong one; it can be an ordinary statute or constitutionally entrenched. Examples of constitutionally entrenched Bills’ of Rights are; the American Bill of Rights and the Canadian Charter of Rights and Freedoms. Examples of statute Bill of Rights are; United Kingdom Human Rights Act 1998 or New Zealand Bill of Rights Act 1990. A statute can be amended by elected members of parliament, indirectly including the people in the process. Whereas a constitutionally entrenched bill of rights could only be amended by referendum, giving the people direct power on what they want to be included. A weaker model would impact less on the Australian legal system. For this reason and for the purpose of this report I am suggesting a statute bill of rights in Australia.

Arguments FOR a bill of rights in Australia:

1. Strengthen democracy

The legislative process encourages responsible law making by promoting robust debate in both the parliament and the broader community, therefore preventing bad law making, effectively strengthening democracy.

“The focus would be on ensuring that basic freedoms and human dignity are taken into account at the earliest stages of the development of law and policy.”

Consequently, human rights would become a high priority in Australian law.

2. Human rights protection within Australia

As Australia’s values and beliefs have changed over time so should the need for protection of human rights. During the drafting of the constitution this was not considered an issue. However, this attitude has changed along with Australia’s increasingly diverse society. If Australia cannot update to the way in which rights are being protected, than the functions of law are not being achieved.

a) Constitutional protection

There are very few rights included in the Australian Constitution namely implicit (implied) rights and explicit rights. Adopting a bill of rights would simply further enhance the protection of rights for Australian citizens.

b) Legislative protection

There is definitely protection of rights through legislation. But a bill of rights would just provide for further rights’ protection.

c) Common law protection

Common law has been adopted from English Common law which needs to be updated as it does not represent Australia’s values of a culturally diverse society.

3. Recent cases illustrating deficiencies in protection

a) Racial discrimination

Section 51 (xxvi) provides that parliament can enact laws in respect to; “…the people of any race for whom it is deemed necessary to make special laws”.

The inadequacy of this section as a tool of protection against racial discrimination was presented in the Hindmarsh Island Bridge Case . During this case arose whether the race power is limited to only allowing the passage of laws that are beneficial for a particular race. The High Court was divided on this question, so it remains unsettled. Therefore, in theory, it is possible for parliament to make laws that discriminate against or disadvantage a particular race. A bill of rights could clarify issues such as this.

b) Indefinite detention of re-offending criminals

Fardon v Attorney – General for the State of Queensland shows how the High Court upheld state legislation which allowed the Supreme Court to continue the detention of a prisoner convicted of a serious sexual offence. The offender served his initial sentence but was said to have an ‘unacceptable risk of re-offending’. Hence the offender served further imprisonment based on this, without actually having committed another crime.

The provided cases prove society is not particularly socially cohesive with the few rights that are allegedly protected.

4. Australia’s involvement in the global community

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…”

This is written in the Universal Declaration of Human Rights which Australia adopted in 1948. This should be recognised domestically as well as internationally, through a modern bill of rights. This would include reflecting international standards thus improving Australia’s standing in the world and quality of life.

Arguments AGAINST a bill of rights in Australia:

1. Violation of democratic system by additional power to the judiciary

The implementation of a bill of rights would grant additional political power to judges and the judiciary as they would be interpreting existing legislation against the bill of rights. Parliament needs to be the sovereign law maker, however an independent judiciary is an important aspect of the Australian legal system too; therefore this cannot be changed with ease. This change would completely change the composition of our legal system and possibly corrupt it as with the US system; judges are elected and consequently, can be influenced.

Implementing a bill of rights would threaten representative government because judges are unelected therefore it is not democratic. Responsible government and the chain of accountability does not apply to judges, meaning they can not be disciplined for incompetence or negligence.

The regular elections mechanism allows the people to elect representatives they are happy with which cannot be exercised with the judiciary as it is appointed.

2. Human rights are adequately protected by traditional Australian system

Traditional elements of the Australian legal system namely; responsible government, separation of powers, federalism and an independent judiciary, has provided adequate protection of human rights in Australia.

a) Legislation

Existing legislation in Australia provides protection for certain rights and freedoms. Discrimination laws include; the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, and Age Discrimination Act 2004.

Additionally, the creation of statutory bodies such as the Equal Opportunity Commission ensures the protection of human rights in Australia to a certain extent.

b) Constitution

The Australian Constitution includes such political rights as: the right to vote , the right to trial by jury , freedom of religion and the prohibition on discrimination against an individual on the basis of the persons place of residence . The constitution also protects some economic rights; the Commonwealth can only acquire property on just terms , interstate trade, and commerce must be absolutely free .

There would be significantly more cases involving human rights if Australia was not somewhat socially cohesive. Elizabeth Handsley, Professor of Law at Flinders University responded, “…social progress and social cohesion would not be any better under a bill of rights…we have achieved both to a high degree, through normal political discourse.”

3. Bill of rights don’t work

For example the constitutionally entrenched US bills of rights; the bill’s ratification in 1791 would not represent all the values and beliefs of the community in the 21st century.

However, it would be at great inconvenience and expensive for parliament if a statute was to be implemented in Australia as it would hinder social progress.

Conclusion and Recommendations

Given the provided evidence, one can see that recent cases have highlighted cracks in the existing system of right’s protection. The debate for a bill of rights holds great practical significance for all Australians.

In conclusion, I believe that a bill of rights should be implemented in Australia as it would provide further protection for all Australians alike. I am recommending a statutory bill of rights rather than a constitutionally entrenched one because it would impact less on the existing legal system. Whereas a bill of rights in the constitution would be more difficult to change by referendum, if the community were to oppose the content decided by elected representatives. After all, a statutory bill of rights is more beneficial than no bill of rights.

Participation:

Elizabeth Handsley, professor of law at Flinders University, conducted 21st June 2010

Bibliography:

Allan, James, http://www.theaustralian.com.au/news/rights-bill-is-still-a-threat/story-e6frgd0x-1225837499041,‘Bill of Rights is Still a Threat’, The Australian, written March 6 2010

Allan, James,http://www.theaustralian.com.au/business/legal-affairs/dont-give-judges-more-power/story-e6frg986-1225851558351, ‘Don’t Give Judges More Power’, The Australian, written April 9 2010, last accessed May 2010

Burnside, Julian, http://www.julianburnside.com.au/It's%20Time.htm, ‘It’s Time. A Bill of Rights for Australia’, University of South Australia, last accessed May 2010

Doussa, John Von, http://www.unisa.edu.au/hawkecentre/events/2005events/New_Matilda_vonDoussa.asp, ‘Why We Need An Australia Bill of Rights’, University of South Australia, last accessed May 2010

Francis, Charles, http://www.endeavourforum.org.au/newsweekly_articles/bill_rights.html, ‘A Bill of Rights Will Diminish Our Freedoms’, News Weekly, written May 30 2009, last accessed May 2010

Williams, George, http://www.amnesty.org.au/yourhumanrights/comments/20017, ‘Human rights in Australia - we should do better’, Amnesty International, written 19 December 2008, last accessed May 2010

http://www.humanrightsact.com.au/2008/about-the-campaign/, ‘About the Campaign’, Human Rights Act For Australia, last accessed May 2010

http://www.dfat.gov.au/facts/democratic_rights_freedoms.html, ‘Democratic Rights and Freedoms’, Australian Government – Department for Foreign Affairs and Trade, last accessed July 2010

http://www.amnesty.org.au/yourhumanrights , ‘Human Rights Act for Australia’, Amnesty International, last accessed May 2010

Government

Wikipedia defines Government as :

“A government is the organization, machinery, or agency through which a political unit exercises its authority, controls and administers public policy, and directs and controls the actions of its members or subjects.

In the social sciences, the term government refers to the particular group of people, the administrative bureaucracy, who control a state at a given time, and the manner in which their governing organizations are structured. That is, governments are the means through which state power is employed. States are served by a continuous succession of different governments.

Each successive government is composed of a specialized and privileged body of individuals, who monopolize political decision-making, and are separated by status and organization from the population as a whole. Their function is to enforce existing laws, legislate new ones, and arbitrate conflicts via their monopoly on violence. In some societies, this group is often a self-perpetuating or hereditary class. In other societies, such as democracies, the political roles remain, but there is frequent turnover of the people actually filling the positions.

In most Western societies, there is a clear distinction between a government and the state. Public disapproval of a particular government (expressed, for example, by not re-electing an incumbent) does not necessarily represent disapproval of the state itself (i.e. of the particular framework of government). However, in some totalitarian regimes, there is not a clear distinction between the regime and the state. In fact, leaders in such regimes often attempt to deliberately blur the lines between the two, in order to conflate their own selfish interests with those of the polity.”

http://en.wikipedia.org/wiki/Government

Magna Carta

Magna Carta is an English charter, originally issued in the year 1215, and reissued later in the 13th century in modified versions that omit certain temporary provisions, including the most direct challenges to the monarch’s authority. The charter first passed into law in 1225. The 1297 version, with the long title (originally in Latin) The Great Charter of the Liberties of England, and of the Liberties of the Forest, still remains on the statute books of England and Wales. The 1215 Charter required King John of England to proclaim certain liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no “freeman” (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence today. Magna Carta was the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges. It was preceded and directly influenced by the 1100 Charter of Liberties, when King Henry I had specified particular areas where his powers would be limited. Despite its recognised importance, by the second half of the 19th century nearly all of its clauses had been repealed in their original form. Three clauses remain part of the law of England and Wales, however, and it is generally considered part of the uncodified constitution. Lord Denning described it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.[1] In a 2005 speech, Lord Woolf described it as “first of a series of instruments that now are recognised as having a special constitutional status”,[2] the others being the Habeas Corpus Act, the Petition of Right, the Bill of Rights, and the Act of Settlement.

http://en.wikipedia.org/wiki/Magna_Carta

USA Bill of Rights

The Bill of Rights is a series of limitations on the power of the United States federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association, as well as the right to keep and bear arms. In federal criminal cases, it requires indictment by a grand jury for any capital or “infamous crime”, guarantees a speedy, public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy.

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

English Bill of Rights

The Bill of Rights is an act of the Parliament of England, whose title is An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. It is often called the English Bill of Rights.

The Bill of Rights was passed by Parliament on 16 December 1689.[2] It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689, inviting them to become joint sovereigns of England.

It lays down limits on the powers of sovereign and sets out the rights of Parliament and rules for freedom of speech in Parliament, the requirement to regular elections to Parliament and the right to petition the monarch without fear of retribution. It reestablished the liberty of Protestants to have arms for their defense within the rule of law, and condemned James II of England for “causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law”.

These ideas about rights reflected those of the political thinker John Locke and they quickly became popular in England. It also sets out—or, in the view of its drafters, restates—certain constitutional requirements of the Crown to seek the consent of the people, as represented in parliament.

Along with the 1701 Act of Settlement the Bill of Rights is still in effect. It is one of the main constitutional laws governing the succession to the throne of the United Kingdom and following British colonialism, the resultant doctrine of reception, and independence to the thrones of those other Commonwealth realms, by willing deference to the act as a British statute or as a patriated part of the particular realm’s constitution.

Since the implementation of the Statute of Westminster in each of the Commonwealth realms (on successive dates from 1931 onwards) the Bill of Rights cannot be altered in any realm except by that realm’s own parliament, and then, by convention, and as it touches on the succession to the shared throne, only with the consent of all the other realms.

In the United Kingdom, the Bill of Rights is further accompanied by the Magna Carta, Habeas Corpus Act 1679 and Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act, applies in Scotland. The English Bill of Rights 1689 inspired in large part the United States Bill of Rights.

http://en.wikipedia.org/wiki/Bill_of_Rights_1689

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (also known as The Charter of Rights and Freedoms or simply the Charter, French: La Charte canadienne des droits et libertés) is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982 (along with the rest of the Act).

http://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms

Common Law

Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called “common law” and it binds future decisions.

http://en.wikipedia.org/wiki/Common_law

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