Journal articles on the topic 'Australian constitutional law'
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1
Dziedzic, Anna, and Mark McMillan. "Australian Indigenous Constitutions: Recognition and Renewal." Federal Law Review 44, no. 3 (September 2016): 337–61. http://dx.doi.org/10.1177/0067205x1604400301.
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The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.
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Cassidy, Julie. "Hollow Avowals of Human Rights Protection - Time for an Australian Federal Bill of Rights?" Deakin Law Review 13, no. 2 (December 1, 2008): 131. http://dx.doi.org/10.21153/dlr2008vol13no2art162.
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<p>Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is<br />unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however,<br />important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed – a federal bill of rights? In the course of this analysis the author makes suggestions for<br />reform; specifically how a federal bill of rights may address the paucity of constitutional protection.</p>
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Winterton, George. "Extra-Constitutional Notions in Australian Constitutional Law." Federal Law Review 16, no. 3 (September 1986): 223–39. http://dx.doi.org/10.1177/0067205x8601600301.
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Kiefel, Susan, and Gonzalo Villalta Puig. "The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 34–49. http://dx.doi.org/10.1163/2211906x-00301002.
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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.
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Meagher, Dan. "The judicial evolution (or counter-revolution) of fundamental rights protection in Australia." Alternative Law Journal 42, no. 1 (March 2017): 9–13. http://dx.doi.org/10.1177/1037969x17694785.
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This article suggests that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, proven decisive. In the absence of a constitutional (or statutory) bill of rights, the High Court has filled the lacuna in formal rights protection in Australia. The emergence of new species of (constitutionally valid) legislation, openly hostile to fundamental rights, has sparked this judicial evolution (or counter-revolution). The Court has used the method of clear statement required by the principle of legality to construct a common law bill of rights that is now, arguably, quasi-constitutional in strength.
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Saunders, Cheryl. "Australian Federalism and the Role of the Governor-General." International Journal of Legal Information 28, no. 2 (2000): 407–23. http://dx.doi.org/10.1017/s0731126500009185.
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Australia is both a federation and a constitutional monarchy. The Commonwealth of Australia Constitution Act 1900, which made the Australian Constitution law, refers to the establishment of the federation “under the Crown of the United Kingdom of Great Britain and Ireland.” In fact, however, since 1973, the appropriate style of the monarch in relation to Australia has been “Queen of Australia.” And ever since federation, the monarch has been represented in Australia by a Governor-General, who progressively has acquired a more significant role, in parallel with the acquisition of Australian independence.
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Kirby, Michael. "Are We All Nominalists Now?" Deakin Law Review 9, no. 2 (November 1, 2004): 524–32. http://dx.doi.org/10.21153/dlr2004vol9no2art254.
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Justice Michael Kirby, a judge of the High Court of Australia, sets out to explain the inescapably creative role involved in the work of the court in giving meaning to ambiguous constitutional and statutory words and common law concepts. Uninformed commentators might call judges performing such functions as "nominalists". But few, if any, Australian judges now adhere to constitutional interpretation according to notions of original intent. A "functional" approach is taken. This approach is illustrated by reference to recent cases on the word "alien" and the phrase "trial by jury" in the Australian Constitution. According to the author this is not a weakness but a strength of constitutional elaboration. Judges and lawyers, being concerned about justice under law, are never "on automatic pilot".
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Morris, Shireen. "Love in the High Court: Implications for Indigenous Constitutional Recognition." Federal Law Review 49, no. 3 (May 24, 2021): 410–37. http://dx.doi.org/10.1177/0067205x211016584.
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This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.
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Manderson, Desmond. "The Big Picture: Imagining the Constitution." Federal Law Review 49, no. 2 (February 18, 2021): 303–23. http://dx.doi.org/10.1177/0067205x21993150.
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In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict and complete legalism’ that shows little interest in the social and cultural functions of a constitution in the modern world. The ‘dual citizenship’ cases (2017–18), concerning s 44 of the Australian Constitution, provide an exceptional case study. The High Court of Australia’s narrow positivism shielded it from criticism, but at a high cost to Australia’s democratic and social fabric. This article argues that, at a time when the rule of law and the public sphere is under threat as never before, we can and should expect more of our peak legal institutions. A constitutional court without a broader commitment to constitutionalism imperils the legitimacy of the whole constitutional order and of the public sphere.
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Corrin, Jennifer. "Australia: Country Report on Human Rights." Victoria University of Wellington Law Review 40, no. 1 (June 1, 2009): 37. http://dx.doi.org/10.26686/vuwlr.v40i1.5378.
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This article provides a country report on the status of human rights in Australia. Human rights law in Australia is embodied in three sources: constitutional provisions, federal, state and territorial legislation, and the common law. However, the author notes that Australia has not embraced the 'rights revolution' seen elsewhere around the world as it does not have a constitutionally enshrined charter of human rights. This status of human rights under Australian law reflects the nation's conservative approach to constitutional law reform, and it is argued that the above sources of human rights law do not provide a comprehensive regime for the protection of human rights in Australia. However, several states have proved that popular support for human rights protection is a political possibility, which shows cautious optimism for the future of human rights laws in Australia.
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Twomey, Anne. "THE APPLICATION OF CONSTITUTIONAL PREAMBLES AND THE CONSTITUTIONAL RECOGNITION OF INDIGENOUS AUSTRALIANS." International and Comparative Law Quarterly 62, no. 2 (April 2013): 317–43. http://dx.doi.org/10.1017/s0020589313000092.
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AbstractThe debate on the recognition of Indigenous Australians in the Australian Constitution is more about how, than whether, this should occur. The two main proposals involve the use of a preamble. One proposes symbolic recognition in a new constitutional preamble with a clause prohibiting use of the preamble in constitutional interpretation. The other would give Parliament power to make laws with respect to Indigenous Australians, but qualify it in a preamble so that it could only be exercised for their ‘advancement’. This article draws on comparative experience of the use of preambles in other common law countries to challenge the assumptions underlying each proposal.
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Gageler, Stephen. "James Bryce and the Australian Constitution." Federal Law Review 43, no. 2 (June 2015): 177–200. http://dx.doi.org/10.22145/flr.43.2.1.
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James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.
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Wesson, Murray. "The Reception of Structured Proportionality in Australian Constitutional Law." Federal Law Review 49, no. 3 (June 4, 2021): 352–79. http://dx.doi.org/10.1177/0067205x211016581.
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A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.
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Holloway, Ian. "Sir Francis Forbes and the Earliest Australian Public Law Cases." Law and History Review 22, no. 2 (2004): 209–42. http://dx.doi.org/10.2307/4141646.
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There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.
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Boyle, Liam. "The Significant Role of the Australia Acts in Australian Public Law." Federal Law Review 47, no. 3 (July 3, 2019): 358–89. http://dx.doi.org/10.1177/0067205x19856501.
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The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.
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Morss, John. "Facts, Threats and Reds: Common Law Constitutionalism and the Rule of Law." Deakin Law Review 14, no. 1 (August 1, 2009): 79. http://dx.doi.org/10.21153/dlr2009vol14no1art132.
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In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.
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M Sakr, Johnny, and Augusto Zimmermann. "Judicial Activism and Constitutional (Mis) Interpretation." University of Queensland Law Journal 40, no. 1 (March 26, 2021): 119–48. http://dx.doi.org/10.38127/uqlj.v40i1.5643.
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In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.
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Larkin, Dani, and Kate Galloway. "Constitutionally entrenched Voice to Parliament: Representation and good governance." Alternative Law Journal 46, no. 3 (May 30, 2021): 193–98. http://dx.doi.org/10.1177/1037969x211019807.
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In 2017, the Uluru Statement from the Heart provided a consensus position on constitutional reform derived from Regional Dialogues drawing on experiences, views and aspirations of First Nations people. Among its recommendations is a constitutionally entrenched Voice to Parliament. While the government supports a watered-down Voice, this article identifies the key features of constitutional enshrinement that would enhance Australia’s institutions of governance. It focuses on its capacity for representation and its contribution to good governance and articulates the imperative for Voice to be an institution under the Australian Constitution, outlining the risks of settling for a legislated body alone.
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Williams, George. "The Australian Constitution and the Aid/Watch Case." Cosmopolitan Civil Societies: An Interdisciplinary Journal 3, no. 3s (November 29, 2011): 1–8. http://dx.doi.org/10.5130/ccs.v3i3s.2152.
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The Australian Constitution played a significant role in underpinning the result in the Aid/Watch Case. It was invoked by the majority to support their conclusion that a body can be a ‘charitable institution’ despite engaging in political activities.
The use of the Constitution in this way came as a surprise. The case extended an existing constitutional principle relating to freedom of political communication from its electoral base into the protection of the political activities of non-government organisations. This may have future ramifications for those organisations in other areas, as well as further implications for the development of what it means to be a charity in Australia.
This article examines the use of the Australian Constitution in the Aid/Watch Case. It explains how the High Court was able to invoke the Constitution in defining what it means to be a ‘charitable institution’. It also examines the implications of that reasoning for the development of charitable law in Australia.
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Voytovich, E. A. "Constitutional and legal bases for the formation of the Senate of the Australian Commonwealth." Journal of Law and Administration 16, no. 1 (April 11, 2020): 36–41. http://dx.doi.org/10.24833/2073-8420-2020-1-54-36-41.
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Introduction. The article is devoted to the organizational and legal issues of formation of the Senate of the Commonwealth of Australia. The author analyses the foundations of the constitutional regulation of the formation of the Senate. Now there are no works exploring in detail the manner the Senate of the Australian Commonwealth is formed.Materials and Methods. To create the article, the author used the works of Australian scholars in the field of constitutional law, as well as a number of legal acts regulating the issues addressed in the article. The methodology of the study was based on general scientific and private scientific methods of cognition (the dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal and historical legal methods).Research Results. The author has considered specific characteristics of the Senate and in particular the constitutional norm establishing the system where senators are elected directly by the people of each entity of the Australian Commonwealth. The author also analyses the formation of the electoral system applied to formation of the Senate of the Australian Commonwealth.Discussion and conclusions. In this article, the author draws attention to the stability and invariability of the foundations of Senate legal regulation, established by the Constitution of the Australian Union, approved by the British Parliament and signed by the British monarch. The author pays attention to the peculiarities of the formation of the Australian legislature.
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Crawford, Lisa Burton. "The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’." Federal Law Review 45, no. 4 (December 2017): 569–96. http://dx.doi.org/10.22145/flr.45.4.5.
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The Australian Constitution constrains the scope of executive power that Parliament is capable of conferring in several ways. This article examines whether any constraints flow from the inherent requirements of ‘law’ itself. That is, is Parliament incapable of conferring executive power of a certain kind or breadth, because the statute that would be required to do so is simply not a ‘law’ for the purposes of the Australian Constitution? More broadly, the article explores the connection between constitutional doctrine and legal theory, and the ways in which statutory conferrals of very broad executive powers can diminish the rule of law.
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Blackham, Alysia, and George Williams. "The Appointment of Ministers from outside of Parliament." Federal Law Review 40, no. 2 (June 2012): 253–85. http://dx.doi.org/10.22145/flr.40.2.6.
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Members of the executive in Australia and other Westminster nations are traditionally appointed only from the ranks of parliamentarians, ostensibly to protect the principle of responsible government. However, there is a growing international trend in nations such as the United Kingdom for the appointment of ministers from outside of Parliament. This article examines the extent to which Australia's constitutional system can accommodate unelected members of a Commonwealth, State or Territory executive. This question is analysed from the perspective of the principle of responsible government and the text of Australia's various constitutional documents. The article also reviews existing practice in comparative jurisdictions and Australian law and practice in order to determine the form that such appointments might take.
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Babie, Paul. "Religious Freedom and Education in Australian Schools." Laws 10, no. 1 (January 30, 2021): 7. http://dx.doi.org/10.3390/laws10010007.
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This article examines the constitutional allocation of power over primary and secondary education in Australia, and the place of and protection for freedom of religion or belief (FoRB) in Australian government and religious non-government schools. This article provides both an overview of the judicial treatment of the constitutional, legislative, and common law protection for FoRB and a consideration of emerging issues in religious freedom in both government and religious non-government schools, suggesting that the courts may soon be required to provide guidance as to how the available protections operate in both settings.
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Haward, Marcus. "The Australian offshore constitutional settlement." Marine Policy 13, no. 4 (October 1989): 334–48. http://dx.doi.org/10.1016/0308-597x(89)90018-3.
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Dixon, Rosalind, and Amelia Loughland. "Comparative constitutional adaptation: Democracy and distrust in the High Court of Australia." International Journal of Constitutional Law 19, no. 2 (April 1, 2021): 455–75. http://dx.doi.org/10.1093/icon/moab036.
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Abstract The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” identified in Gunther Frankenberg’s account of an “IKEA” style of global constitutional transfer. But it is distinctive in its direct engagement with foreign constitutional ideas at their source and its attention to the importance of constitutional context, difference, and generality or commonality. Similar forms of comparative constitutional adaptation can be found elsewhere, including in the engagement by Australian Chief Justice, Susan Kiefel, in the development of proportionality doctrines. But attention to Ely’s influence on Justice Gageler’s thought provides a useful window not only into Australian constitutional practice, but also into this distinctive and normatively attractive form of comparative engagement.
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Lilienthal, Gary, and Nehaluddin Ahmad. "AUSTRALIAN ABORIGINAL HUMAN RIGHTS AND APPREHENDED BIAS: SKIRTING MAGNA CARTA PROTECTIONS?" Denning Law Journal 27 (November 16, 2015): 146–77. http://dx.doi.org/10.5750/dlj.v27i0.1104.
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The significance of this paper is in discussion of the wholesale obliteration of religious and other rights among Australian Aboriginal people, constituting a subspecies of continuing genocide. The Constitution of the Commonwealth of Australia states its directive on religion as follows.‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’This constitutional section prohibits the making of laws, as stated, but does not prohibit administrative action imposing religious procedures. Neither does it prohibit official administrative action to restrain the free exercise of religion in Australia.
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Kirby, Michael. "Centenary of HM Seervai – Doyen of Indian constitutional law – an Australian appreciation." Legal Studies 27, no. 3 (September 2007): 361–78. http://dx.doi.org/10.1111/j.1748-121x.2007.00060.x.
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For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.
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Olijnyk, Anna, and Gabrielle Appleby. "Constitutional Influences on State and Territory Lawmaking: An Empirical Analysis." Federal Law Review 46, no. 2 (June 2018): 231–58. http://dx.doi.org/10.1177/0067205x1804600203.
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This article focuses on an under-studied aspect of the constraints emerging from ch III of the Australian Constitution: the effect of those constraints on law- and policy-making within the executive. Drawing on interviews with key actors in state and territory lawmaking, this article uses three case studies to examine the way in which ch III constraints have influenced the development of law and policy. The actions of governments in each case study are evaluated against a normative model of constitutional deliberation by the executive. The article concludes by identifying the legal, political and personal factors that influence the way in which state and territory executives engage with constitutional issues.
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Gray, Anthony Davidson. "The First Amendment to the United States Constitution and the implied freedom of political communication in the Australian Constitution." Common Law World Review 48, no. 3 (August 12, 2019): 142–75. http://dx.doi.org/10.1177/1473779519863070.
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This article suggests that the Australian High Court might usefully utilize more of the First Amendment jurisprudence than it has done so to date. After a succinct summary of the Australian implied freedom and First Amendment case law, it documents cases in which the Australian High Court has either utilised, or not utilised, First Amendment case law. It suggests specific instances in which the Australian case law might utilize some of the American doctrine, and responds to suggestions that the American case law is not applicable to the Australian constitutional context.
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Mason, Sir Anthony. "The Role of a Constitutional Court in a Federation a Comparison of the Australian and the United States Experience." Federal Law Review 16, no. 1 (March 1986): 1–28. http://dx.doi.org/10.1177/0067205x8601600101.
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The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony's lecture.
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Kirby CMG, Michael J. "THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES, DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICE." Denning Law Journal 30, no. 2 (August 8, 2019): 17–49. http://dx.doi.org/10.5750/dlj.v30i2.1697.
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In this article, based on an address to the India Law Institute in New Delhi, the author, a former Justice of the High Court of Australia lists ten features of the constitutions of Australia and India that exhibit similarities; ten features where there are sometimes marked differences; and two areas of operation that illustrate the fact that in constitutional adjudication, especially, judicial decision-makers face what Julius Stone described as “leeways for choice”. By reference to decisions in Australia and India on issues of race, aboriginality and human sexuality, the article identifies the inescapable challenge of choice and suggests useful guideposts.
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Scutt, Jocelynne Annette. "‘CHANGE THE CONSTITUTION? INTERPRETATION, (MIS)CALCULATION, WRONGS RIGHTED OR REACTION & REITERATION’." Denning Law Journal 30, no. 2 (August 8, 2019): 121–75. http://dx.doi.org/10.5750/dlj.v30i2.1701.
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Since the United States adopted a written constitution as a consequence of the War of Independence, it is fair to say that most Western democracies with written constitutions have taken some guidance from that founding document. Inevitably, a key provision for any written constitution is ‘how can it be amended’. Even where there is an unwritten constitution (as for the United Kingdom, Aotearoa/New Zealand and Israel), the ‘rules’ established by convention or custom or some other means cannot be immutable: the passage of time or changing ideas require some means of altering or updating the rules. Changing a constitution is a matter of law, yet one inescapably imbued with politics. This article explores the way constitutional change has come, and how the rules have worked, in Australia (the 1951 referendum to ban the Australian Communist Party – unsuccessful, and the 1967 referendum to recognise rights of Indigenous Australians – successful) and the United States (the Equal Rights Amendment – situation ongoing), with a foray into the referendum process in United Kingdom (the 2017 ‘Brexit’ vote). It explores, too, the ‘change’ to a constitution where there is no change to the words of the document, but a change in interpretation – this in the context of Canada in 1929. There, consistent with judgments in Aotearoa/New Zealand, Australia, the United Kingdom and the United States, the Canadian Supreme Court interpreted ‘person’ as appearing in the North America Act as not including women, denying women any entitlement to be appointed to the Canadian Senate. As related here, women were finally acknowledged as ‘persons’ when the Privy Council pronounced this to be so, an unanticipated outcome from a judicial body considered by both Canada and Australia to be so hidebound as not to be ‘right’ as the final court of appeal for Britain’s former colonies.
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Kirk, Jeremy. "Conflicts and Choice of Law within the Australian Constitutional Context." Federal Law Review 31, no. 2 (June 2003): 247–98. http://dx.doi.org/10.22145/flr.31.2.1.
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Twomey, Anne. "Book Review: Australian Constitutional Law and Theory Commentary and Materials." Federal Law Review 25, no. 1 (March 1997): 205–9. http://dx.doi.org/10.1177/0067205x9702500107.
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Kirk, Jeremy. "Conflicts and Choice of Law within the Australian Constitutional Context." Federal Law Review 31, no. 2 (June 2003): 247–98. http://dx.doi.org/10.1177/0067205x0303100201.
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Bateman, Will, and Leighton McDonald. "The Normative Structure of Australian Administrative Law." Federal Law Review 45, no. 2 (June 2017): 153–79. http://dx.doi.org/10.1177/0067205x1704500201.
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This article analyses the normative structure of Australian administrative law through the prism of two distinct intellectual approaches to the law of judicial review: the ‘grounds approach’ and the ‘statutory approach’. We explore the development of both approaches and track the contemporary ascendance of the statutory approach in light of the political and constitutional context within which the practice of judicial review is situated. We then reflect on the ways that each responds to two central legitimacy problems which must be confronted by modern administrative law: the democratic legitimacy of judicial review and the legitimacy of the forms of law associated with contemporary administrative government.
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Arcioni, Elisa. "The Voice to Parliament proposal and ‘the people’ of the Constitution." Alternative Law Journal 46, no. 3 (April 27, 2021): 225–27. http://dx.doi.org/10.1177/1037969x211010827.
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The concept of ‘the people' in the Australian Constitution is at the heart of our system of representative government. The Voice proposal in the Uluru Statement from the Heart is consistent with the way in which ‘the people’ have been understood by the High Court – both their identity and their political roles under the Constitution. This consistency is one of the many reasons to support constitutional enshrinement of the Voice.
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Jones, Timothy H. "Freedom of Political Communication in Australia." International and Comparative Law Quarterly 45, no. 2 (April 1996): 392–401. http://dx.doi.org/10.1017/s0020589300059042.
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In three important decisions,1 handed down on the same day in October 1994, the Australian High Court continued its exploration of the implied constitutional guarantee of freedom of political communication. Two years previously, in the judgments in Nationwide News Pty Ltd v. Wills2 and Australian Capital Television Pty Ltd v. The Commonwealth,3 a majority of the High Court had distilled an implication of freedom of political communication from the provisions and structure of the Australian Constitution.4 This was not an implication of freedom of expression generally, since it was derived from the concept of representative government which the majority considered to be enshrined in the Constitution: “not all speech can claim the protection of the constitutional implication of freedom … identified in order to ensure the efficacious working of representative democracy and government”.5 The extent of this implied constitutional guarantee was left rather unclear, since a number of different views were expressed. As Justice Toohey has now explained,6 there were two possibilities. The first was a more limited “implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government”. The second was a rather more expansive “freedom to communicate in relation to public affairs and political matters generally”. In the recent trilogy of cases a majority of the High Court was prepared to endorse the second of these alternatives.7 In Cunliffe v. The Commonwealth Chief Justice Mason concluded that it would be too restrictive to limit the implied freedom to “communications for the purposes of the political processes in a representative democracy”.8
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Gray, Anthony. "Scetion 116 of the Australian Constitution and Dress Restrictions." Deakin Law Review 16, no. 2 (December 1, 2011): 293. http://dx.doi.org/10.21153/dlr2011vol16no2art105.
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This article considers constitutional arguments that would arise if a government at either federal or state level decided to ban dress often identified as having religious connotations. This is not a far-fetched scenario, with at least one current Member of Parliament calling for such a ban, and bans operating in some overseas jurisdictions. It concludes that there would be serious constitutional doubt about such a law.
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Gageler, Stephen. "Sir Robert Garran: Medio Tutissimus Ibis." Federal Law Review 46, no. 1 (March 2018): 1–17. http://dx.doi.org/10.22145/flr.46.1.1.
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Sir Robert Randolph Garran (10 February 1867-11 January 1957) played a unique role in the early development of the Commonwealth. As Secretary to the Drafting Committee of the Australasian Federal Convention of 1897 and 1898, he was intimately involved in the process by which the Australian Constitution was produced. As Secretary of the Attorney-General's Department from 1901 to 1932, he was responsible for drafting foundational Commonwealth legislation and he played a key part in establishing coherent interpretations of the Constitution in advice to successive Federal Governments. Three aspects of Garran's life and work are explored in this article: the popular movement which established the process by which the Constitution was negotiated, drafted, and submitted to referenda for approval; Garran's tenure and legacy as Secretary of the Attorney-General's Department; and Garran's views on federalism and constitutional law.
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Brumby, Elizabeth. "The Effect of Treaty Withdrawal on Implementing Legislation." Federal Law Review 47, no. 3 (July 3, 2019): 390–419. http://dx.doi.org/10.1177/0067205x19856502.
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This article explores the effect of treaty withdrawal on domestic legislation implementing a treaty in the Australian constitutional context. In R (Miller) v Secretary of State for Exiting the European Union (‘ Miller’), the Supreme Court of the United Kingdom held that the executive cannot exercise its prerogative power to withdraw from a treaty where that withdrawal would frustrate or invalidate domestic law. This article contends that treaty withdrawal would be unlikely to have this effect on a law implementing a treaty in the Australian context. The article ultimately draws two conclusions. First, a law implementing a treaty would likely survive treaty withdrawal in most cases due to the law’s enduring nexus with Australia’s foreign relations, enabling its continued characterisation as a law ‘with respect to’ s 51(xxix) of the Constitution. Secondly, in the event that withdrawal does lead to a loss of constitutional support, the law would likely become prospectively invalid from the date of effective withdrawal (an outcome identical to legislative repeal in its effect). The article contends that this outcome would not, however, engage the constraint on executive power so emphatically reasserted in Miller. This is because the law’s invalidity is consistent with the implied will of the legislature and thus reinforces, rather than contravenes, the fundamental principle of parliamentary sovereignty which the constraint on executive power protects.
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Burton, Lisa. "Why These Three? the Significance of the Selection of Remedies in Section 75(V) of the Australian Constitution." Federal Law Review 42, no. 2 (June 2014): 253–77. http://dx.doi.org/10.22145/flr.42.2.2.
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Section 75(v) of the Australian Constitution gives the High Court original jurisdiction to hear ‘all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.’ This is said to guarantee the Court's ability to ensure that officers of the Commonwealth act within the law. Yet the s 75(v) jurisdiction is clearly limited. The Court is not authorised to hear all matters in which it is alleged that an officer of the Commonwealth has acted unlawfully; it is only given jurisdiction to hear matters in which a (somewhat surprising) selection of remedies are sought. This is confusing in itself, and it has caused broader confusion about the purpose and scope of this important constitutional provision. This article examines the historical ambit of the judicial review remedies and evidence from the Constitutional Convention Debates in order to determine why s 75(v) only gives the High Court jurisdiction to hear matters in which mandamus, prohibition and injunction are sought, and the significance of this for judicial review under the Australian Constitution.
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SAMPFORD, C. J. G. "‘RECOGNIZE AND DECLARE’: AN AUSTRALIAN EXPERIMENT IN CODIFYING CONSTITUTIONAL CONVENTIONS." Oxford Journal of Legal Studies 7, no. 3 (1987): 369–420. http://dx.doi.org/10.1093/ojls/7.3.369.
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Aroney, Nicholas. "THE INFLUENCE OF GERMAN STATE-THEORY ON THE DESIGN OF THE AUSTRALIAN CONSTITUTION." International and Comparative Law Quarterly 59, no. 3 (July 2010): 669–99. http://dx.doi.org/10.1017/s0020589310000266.
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AbstractThis article draws attention to an important but neglected story about the dissemination of German and Swiss state-theories among English-speaking scholars in the second half of the 19th century and the influence of these ideas on those who designed and drafted the Australian Constitution. In particular, the article focuses upon the theories of federalism developed by the Swiss-born scholar, Johann Caspar Bluntschli, and the Saxon-born Georg Jellinek, and explains their influence, via the British historian, Edward A Freeman, and the American political scientist, John W Burgess, upon the framers of the Australian Constitution. The story is important because it illustrates the way in which constitutional ideas can be transmitted from one social and political context into a very different one, undergoing significant, though often subtle, modifications and adaptations in the process. The story is also important because it sheds light on the way in which the framers of the Australian Constitution came to conceive of the kind of federal system that they wished to see created. The story seems to have been overlooked, however, not only due to a general neglect of the intellectual history of the Australian Constitution, but also due to the assumption that prevailing Australian political and legal ideas were of Anglo-American provenance. While this assumption generally holds true, a closer examination of the intellectual context of Australian federalism reveals a surprisingly significant German influence on the framers of the Australian Constitution.
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Young, Stephen. "Consent, custom and international law in South Africa: What Australian lawmakers could learn." Alternative Law Journal 44, no. 3 (May 29, 2019): 197–202. http://dx.doi.org/10.1177/1037969x19853853.
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This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.
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Nettheim, Garth. "Human Rights and Indigenous Peoples." Cosmopolitan Civil Societies: An Interdisciplinary Journal 1, no. 2 (September 16, 2009): 129–41. http://dx.doi.org/10.5130/ccs.v1i2.1045.
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The paper begins by noting the low level of reference to Indigenous Australians in the Commonwealth Constitution at the start of Federation, and goes on to discuss the limits to what was achieved by the 1967 amendments. The situation represents a marked contrast with the USA and Canada in terms of treaties and constitutional recognition.
In Australia, particularly during the period of the ‘Reconciliation’ process in the 1990s, important steps were taken by Indigenous Australians to identify items of ‘unfinished business’ in a ‘Statement of Indigenous Rights’. But there has been limited progress to meet these aspirations. And Australian law still lacks a tradition of recognition of human rights generally, let alone Indigenous rights.
International law, too, largely lacked recognition of human rights, generally prior to the adoption in 1945 of the Charter of the United Nations. The brief references in the Charter were subsequently developed in a range of declarations and of treaties. These applied to people generally, with scant reference to Indigenous peoples. But, since the 1970s, there has been growing international recognition of the rights of Indigenous peoples under existing declarations and treaties. Since the 1990s, in particular, the UN system has established
specific mechanisms for addressing such issues. On 13 September 2007, the General Assembly finally adopted a Declaration on the Rights of Indigenous Peoples.
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Zines, Leslie. "The Common Law in Australia: Its Nature and Constitutional Significance." Federal Law Review 32, no. 3 (September 2004): 337–55. http://dx.doi.org/10.22145/flr.32.3.1.
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This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.
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Zines, Leslie. "The Common Law in Australia: Its Nature and Constitutional Significance." Federal Law Review 32, no. 3 (September 2004): 337–55. http://dx.doi.org/10.1177/0067205x0403200301.
Full textAbstract:
This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.
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Evans, Hywel, and Andrew Williams. "ADF Offensive Cyberspace Operations and Australian Domestic Law: Proprietary and Constitutional Implications." Federal Law Review 47, no. 4 (September 9, 2019): 606–30. http://dx.doi.org/10.1177/0067205x19875011.
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An Australian Offensive Cyberspace Operations (OCO) capability has emerged as an important sub-component of national power. While significant academic literature exists concerning OCO’s place within the international law of armed conflict, and international law in general, literature regarding domestic law is scarce. Nevertheless, an understanding of the domestic law governing the Australian Defence Force’s (ADF’s) authority to conduct OCO is necessary as the gap in the research potentially exposes the Government and individuals to legal risks that are not well understood. The aim of this article is to analyse the proprietary and constitutional implications of ADF OCO to inspire further research at a time when the Comprehensive review of the legal framework governing the National Intelligence Community is underway. The qualitative research analyses statutory and case law authorities to argue that Australian proprietary and constitutional law creates important implications for ADF OCO. The analysis suggests that these implications oblige the Commonwealth to be careful in balancing its legislative and executive power to provide the ADF with the legal authority to conduct OCO. The research finds that OCO impinges upon the proprietary rights of others, requiring legal authority which, if created under statute, generates an obligation to compensate proprietors under just terms. However, if the authority arises under the executive power, then the obligation to compensate may not apply. Further, such executive powers may exist under a royal war prerogative. As a corollary, we suggest that in an escalated conflict environment, the ADF may be able to conduct OCO without any legislative amendments to the criminal law although express immunities would be preferred.
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Bec, Cameron Stewart. "Health practitioner regulation in Australia: a view from the antipodes." Revista de Direito Sanitário 19, no. 3 (May 30, 2019): 205–76. http://dx.doi.org/10.11606/issn.2316-9044.v19i3p205-276.
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This article reviews health practitioner regulation in Australia. It starts with a review of the constitutional powers to regulate healthcare in the Australian Federal system and the system of rights to access health that have been created. The article then examines the current National Law, which was an attempt to create a uniform regulatory system for healthcare practitioners in Australia. The paper examines the working of that system and current data on its operation and concludes with looking to future challenges for the system.