The case for a bill of rights in Queensland

 

Unlike many jurisdictions internationally, neither Australia nor the states operate under a bill of rights - with the exception of Victoria and the ACT.  While there is currently an investigation into 'traditional' freedoms at the instigation of the Commonwealth Attorney-General, there is no sign that a bill of rights will be coming any time soon at the national level. Indeed it is Coalition policy to do away with the human rights framework. The Prime Minister is reported as having said: 'Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.'

But the question of a bill of rights can be framed a little differently in the Queensland context. Perhaps in recognition of that, following the 2015 Queensland election the government has indicated that it will seek advice from the Department of Justice and Attorney-General to allow 'public discussion' on the question of a bill, or charter, of rights. I think a public discussion on a bill of rights in Queensland is important and overdue. In this post I explain why.

The gift: characterising exchange within intimate relationships

 

I am presently working on chapter two of my thesis on intimate partner constructive trusts. My thesis explores the gendered nature of the law in this area, asking whether it effects a just distribution of property between spouses - through equity, not through statutory family law. In this chapter I establish that the law focuses on the parties' acquisition of the matrimonial home in a way that privileges the parties' exchange in terms of a transaction. The reason for the law's inconsistency over time in my view, is because the acquisition of the home is an aspect of a complex relational exchange. The law thus falls short of encompassing the relational aspects of property distribution.

The law's emphasis on transactions is a manifestation of market liberalism and is hardly surprising in Australian private law. However while the transactional approach may serve a purpose in a commercial market context it demonstrates the poverty of legal thinking in terms of a just property distribution within an intimate context. 

In working on chapter two of my thesis I have read Richard Titmuss' The Gift Relationship (1970). In this post I set out some early thoughts on the utility of Titmuss' work in terms of explaining distribution of finances, property and services within an intimate relationship. I note that there is a considerable literature following publication of Titmuss' work in 1970, but this post relates only to my initial reactions on reading this text.