External Affairs Power 1. Categories of External Affairs External affairs is a purposive head of power. we look first at the interpretation of the commonwealth head of power. this one says external affair in s51 (29). Kinds of areas that come within the scope of s 51 (29) are; 4 main types of external affairs power; it is a broad concept.
First; laws dealing with foreign relations with our relationships with other countries, Second; we can have acts that deal with things occurring geographically outside Australia, those could be external affairs, it is expanding, the Polyucich decision dealing with whether the war crimes legislation that dealt with war criminals particularly those in ww2 was war crimes legislation allowing those people to be punished sometime later, the validity of the war crimes act being tested there and aprt of the grounds in which it was found to be valid legislation was that it dealt with matters external geographically outside of Australia things that happened in Europe during ww2 were covered here and that was a valid application of this legislation helding that ww2 war criminals could be punished under that legislation not withstanding they could be punished in Australia from something that they did in Europe, the Xyz decision deals again with legislation dealing with child sex tourism where pedophiles will go overseas on certain tours and be engaged in underage sex overseas, can they be punished in Australia for that? Also valid legislation on this ground dealing with a subject matter that is geographically outside Australia but that we can not deal with this within Australia regardless of the fact that the crimes have taken place outside Australia.
There are always arguments that if we’re allowing legislation to deal with acts or events that have occurred outside Australia but that we aren’t going to punish those that there should be some Australian connection with what is going on outside, the cases above, confirm that we don’t even have to have a connection requirement, so that area of the external affairs power is extremely broad, treaties are main focus of the external affairs power, but this one about geographically externality to Australia, Third; the application as a universal jurisdiction which comes from international law, to deal with pirates, doesn’t matter what country you are from, you can punish that pirate. Example if there is a universal jurisidcition to punish individuals or war crimes then there’s certain rules and concepts that apply to that and certain punishments etc, an act made within Australia can not go into different areas of punishing those, or setting different rules for how certain people are to be trialed or punished, the internal domestic legislation hat purportably exercises a universal jurisdiction must conform to the international content of that universal jurisdiction, Fourt; conformity in context of treaties part of external affairs. Foreign relations, subject matter geographically external to Australia, universal jurisdication and treaties. 2. Ratification and Implementation of Treaties How treaties function ; first up though we as Australia joined an international treaty also we might see things as conventions or international agreements, what happens is that our executive arm of government joins the treaty, they sign the treaty in their executive capacity and that is called Ratification. So that point, Australia has ratified the treaty.
For instance Australia has ratified the kooyato protocol happily, however that does not mean that that treaty now applies as a matter of law within Australia or domestically within Australia. Ratification is the international signing of that treaty but in order for that treaty to take effect in Australia it does need to be implemented by domestic legislation within Australia and it will be the commonwealth parliament that passes that legislation, we are looking for commonwealth acts that implement the treaty before we say that that treaty is being applied as a matter of law within Australia. Ratification – when the executive signs the treaty. Implantation – what occurs with the domestic legislation passed by the commonwealth government implementing the terms of that treaty within Australia.
We would not say that the commonwealth act ratifies this treaty within Australia, that would be incorrect. Examples; Australia usa free trade agreement, signed in usa that was the executive ratification part we then have to pass legislation the cmth parliament implementing that agreement within Australia. That legislation was almost not going to pass. The evergreening of patients was an issue. Bilateral agreement between two countries. We’ve recently ratified koyoto protocol we now need to pass legislation within Australia that implements that agreement. 3. External Affairs and the federal balance The background of s51 (29) how the use of the treaties power has become more and more expansive overtime.
So we need to begin by 1900 drafting of the constitution area, from that point until 1936, we didn’t really have any legislative activity in relation to s51 (29), we didn’t have any litigation challenging the validity of the legislation, 1936 was the first real case in this are. There are more and more treaties being made on a large area of subjects. The idea there is that we use s 51 (29) more and more, we see the commonwealth being able to pass legislation implementing treaties that are being made relying on s51 (29) but on a whole range of subject areas, and those subject areas are where the commonwealth does not have its own immunerated head of power and thats really the central point of why the external affairs power is such an expansive power. In s 51 (29) doesn’t say anything about the kinds of treaties that s 51 (29) can be used to implement.
In the context of treating, the commonwealth can pass acts implanting treaties that the executive has ratified or that has made, doesn’t say anything in s51 (29) about the kinds of treaties that s 51 (29) can be used to implement, therefore , any possible treaties, is there any limit that countries may wish to form? No, people are not aware of any limits on the subject matter, so we think that can be about anything at all, whole range of subjects, and the commonwealth legislates on those through s51 (29) as a conduit , to implement treaties that may be on any subject matter whatsoever, s 51 (29) we have commonwealth legislation on a unlimited range of subject not otherwise within commonwealth enumerated heads of power. one head of power s 51 (29) can allow the cmth to pass legislation in a very large areas where it doesn’t have enumerated power, and it has impact on the federal balance.
Cause essentially the commonwealth validly passing legislation in a very large areas, unlimited areas, it would have fallen to the states, so we can see that the cmth is gaining more power and more areas of legislative competence, and states having their legislative competence even further eroded. One of the real concerns of s 51 (29) is the impact of the federal balance. We should place commonwealth limits. Justice Dawson; 4. Potential Limits on s51 Whether there is any validity to the argument that only certain types of treaties qualify for s51 (29), treaties can potentially be on any subject whatsoever, is there argument that only certain types of treaties should be used in this way.
Although theres been such a strong minority or dissenting viewpoint to the effect that there should be some limits to the types of treaties, the orthodox position is that there is no limit in any type of treaty, secondly, whether there are any possible limits around the way in which the treaty has been implemented how does the cmth actually implement that treaty within Australia, we’ll see, that there are ideas of conformity, that that idea what the domestic cmth legislation does, must to some extent match the content of the treaty, that idea of conformity has really developed through the later cases into the proportionality test, those ideas of appropriate and adapt have actually come in there to work out whether a cmth act implementing a treaty is a appropriate and adapted way in implementing that treaty from s 51 (29). The bona fide doctrine, the concept of bad faith entry into a treaty and then fourthly, the idea that there are some limits that come from the constitution itself.
Firstly; three and four – bona fide doctrine and the concept of bad faith entry into a treaty; case Burgess decision; the majority made the observation that regardless of how broadly one reads s 51 (29) the majority saw that there was no limit on the type of treaty that would engage or enliven s51 (29) , the majority pointed to the idea that if the cmth had entered the treaty for a bad faith purpose, if the cmth had entered into a treaty not to be part of the treaty but because wanted to get a new area of legislative competence then that would be a bad faith entry treaty and that kind of ratification of treaties would not engage s51 (29) in the case, how the majority talks about, it says that in this case there’s no suggestion that it was a bad faith entry into this treaty, but there is that idea that if the cmth had gone into a ratified a treaty merely as a device to then get additional domestic jurisdiction that that would nt support legislation under s51 (29) next we have CJ Gibbs in KOOWARTA, his honour points out some limitations on this doctrine, that has always been considered a restriction on the use of s51 (29) never been used as a restriction. His honour indicates that the octrine of bona fide or the idea that bad faith entry into a treaty cant engage in s51 (29) for CJ Gibbs that is not an effective safeguard. He says that it would be difficult to prove that the executive had entered into a treaty with the kind of bad faith that the argument requires, very difficult. ‘the doctrine of bona fide would act best be a frail shield’ . if you could prove bad faith then that would be a limit on s51 (29) no examples or cases. That’s a potential limitation on s51 (29). Fourth point; constitutional rights and guarantees, burgess decision, type of limitation thats been identified very early on and accepted but not come into play.
However, the cmth constitution ddoes contain certain guarantees certain protections for some rights, those are very limited protections, there are few, protection of freedon of religion s 116, this use of s51 (29) tells us that those rights and guarantees in the constitution can not be overridden by the use of s 51 (29). S51 is expressed to say subject to this constitution, the cmth has the following powers, those rights are paramount and can’t use s51 (29) to subvert the types of rights that are protected in the actual constitution. 5. Type of Treaties Types of treaties; whether that’s any kind of limitation and then looking at the implementation of treaties, is there any limitation that flows from the way in which treaties have been implemented.
S51 (29) is used very broadly, is that there has never been a majority position or a majority view with the possible exception of the case Koowarta, although that is arguable too, but with the exception of that case, there has never been a majority on the high court bench that has considered there to be any limitation on the type of treaty that qualifies for s51 (29) or enlivens s51 (29). So the majority position certainly is now always have been that there is no limit on the type of treaty that qualifies, basically any treaty will do there. In support of that positition, J evert and Mctennon from the Burgess Case their honours point out that all we’re looking for here is the fact that an internation convention has been made on a subject brings that subject within the concept of international relations and therefore in the concept of s51 (29), so really a very broad statement, 1936 decision.
Burgess in that early decision makes a point that it is not relevant that there is no separate commonwealth head of power THAT can support the legislation. The argument there , the first decision involving s51 (29) and it dealt with aviation and whether the commonwealth could validly pass legislation regulating aviation, in reliance on an international convention, and part of the argument here, was the external affairs power couldn’t be used in an area where the commonwealth didn’t already have a enumerated head of power, it was somehow limited in that way, and in particular it couldn’t used in areas where there was no other commonwealth enumerated head of power. he majority, refuted that argument, they said , making the point that the commonwealth can use s51 (29) in areas where it has no corresponding enumerated head of power in s51 (29) or elsewhere in the constitution. Dissenting positions and minority view points, judges who disagreed with the idea that any type of treaty can enliven s51 (29) but also points to the importance of the way in which minority positions can gain support in constitutional and can become majority positition sometimes. Engineers case – where there was a minority disagreeing with reserve state power sometime and eventually they became the majority of the bench. The reserve state powers doctrine was rejected and overruled.
When we compare that with s51 (29) its interesting to see that although there was a quite strong majority who argued there should be some limit on the type of treaty that can engage s51 (29) it never became the majority position. 6. Type of Treaties Burgess R v Burgess ex parte Henry (1936) The Air Navigation act 1920 (Cth) was held not to be a law with respect to trade and commerce under s51 (i). However, a majority of the five judges upheld the legislation as validly giving effect to the international convention for the regulation of aerial navigation 1919. It dealt with the validity of the air navigation act , it was held not to be valid under the trade and commerce power , the act purported to regulate intrastate trade and commerce, outside scope of trade and commerce power. nvalid legislation under trade and commerce head of power s51 (1). However, there was an act very broadly worded, then regulations for certain flights. In the same decision in relation to s51 (29) the act was held to be valid. It was invalid under s51 (1) but valid under 51 (29) because it implemented the international convention for the regulation of air navigation. So there was an international treaty in place. The act was valid, but the regulations made in the act were invalid in the final decisions of the case. The reason being that those regulations didn’t sufficiently conform to the convention that they were supposedly implementing. 7. Koowarta Overview and Gibbs CJ, Murphy and Stephen JJ
Koowarta v Bjelke-petersen (1982) 153 clr 168 External affairs power Facts: on 30 sep 1975 australia ratified the nternational convention on the elimination of all forms of racial discrimination. To carry out its obligation the cth enacted the radical discrimination act 1975 (cth). In 1976 the aboriginal development commission entered into a contract with the lessees of crown land in qld to purchase that leasehold on behalf on the winychanam people. The minister for lands refused to approve the transfer of the lease. The refusal was based upon the declared gov policy which opposed proposal to acquire large areas of land for development by aborigines.
Koowarta, a member of the winychanam group, began proceedings against the prmier of qls under the RDA, the defendant argued that the act was invalid. Issue: the question for determination was whether the power in s 51(xxix) of the consititution enable the cth to enact laws for the execution of the convention. Decision: the RDA was valid exercise of the external affairs power. There exists a quite precise treaty obligation, on a subject of major importance in international relationships, which calls for domestic implementation within Australia. This in itself, without more, suffices to bring the RDA within terms of s51(xxix) per Stephen j at clr 221. 9. Tasmanian Dams Overview and Gibbs CJ
Cth v Tasmania (Tasmanian dams case) (1983) 158 clr 1 (TALKS ABOUT Conformity and Proportionality) Facts: Australia ratified the convention for the protection of the world cultural and natural heritage in 1974, and the national parks and wildlife act 1975(cth) was enacted to implement it. The convention provided that each nation signatory recognised a duty to identify, conserve and protect the cultural and natural heritage situated within its territory, as ‘such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate’ In sep 1981 the premier of Tasmania requested cth to nominate three areas in the south west of the state for inclusion in the world heritage list.
In dec 1982 the wold heritage committee accepted the nominations, earlier that year, the Tasmanian parliament passed the Gordon river hydro-electric power development act 1982 (tas) which authorised the construction of dam within one of the listed areas. Work on the dam commenced in july 1982. On 31 march 1983 the world heritage (western Tasmania wilderness) regulations were made pursuant to the national parks and wildlife act. The regulations prohibited the construction of a dam or ‘associated works’ on 22 may 1983 the cth parliament enacted the world heritage properties conservation act 1983 (cth) which prohibited the destruction or damage of any property suitable for inclusion in the world heritage list. On 26 may 1983 the GG proclaimed the act applied to the area in which the dam was to be built.
The cth began proceedings seeking a declaration that the construction of the franklin dam was unlawful. Tasmania cross-claimed seeking declaration that cth acts and regulations were invalid. Issue: the relevant issue for the court was whether the external affairs power could be exercised to prevent the construction of the dam Decision: the national parks and wildlife act and the world heritage peroperties conservation act were authorised by s 51(xxix) of the consititution as the existence of an international treaty was sufficient to attract the power. The world heritage regulations 1983 were invalid as they went beyond what were reasonable and appropriate measures to implement the convention. There is no persuasive reason for thinking that the international character of the subject matter or the existence of international concern is confined to that part of treaty which impose an obligation on Australia’ per Mason J at clr 123 ‘implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of law with respect to external affairs is a need for there to be reasonable proportionality btwn the designated purpose or object and the means which the law embodies for achieving or procuring it’ per deane j at clr 260. Further, the corporations power in s51(xx) extended to authorise the cth parliament to regulate the construction of the dam, as the hydro-electric commission was a trading corporation, engaged in work undertaken for the purpose of its trading activities. Further Cases Victor v cth (1996( 187 clr 416 (INDUSTRIAL RELATIONS ACT CASE) The case concerned the constitutionally validity of amendments to the industrial relations act 1988 in the industrial relations reform act 1993. The amendment act provides a range of protections for workers in the areas of equal pay, minimum wages, unfair dismissal and parental leave.
The reforms were based on the concept of conventions and recommendations of the general conference of the international labour organisation. The high court largely upheld the amendment provisions as a law with respect to external affairs. Facts: the plaintiff states sought declarations that a number of provisions of the industrial relations act 1988 (cth), concerning minimum wages, equal pay, termination of employment, discrimination in employment, family leave, collective, bargaining and the right to strike were invalid. Issue: the cth claimed that the provisions were enacted pursuant to the external affairs power, in that they were the subject of conventions which had been adopted by the general conference of the international labour organisation and ratified by Australia.
Or were recommendations of the ilo. The states, however, asserted that the external affairs power did not give the cth power to legislate with respect to the implementation of treaty obligations unless the subject matter of the treaty was one of international concern. And that the ILO conventions and recommendations are not concerned with matters of that kind. To this end the states submitted that the minority opinion of Stephen j in koowarta v bjelk-pertersen best represented the law. and that it was not necessary to reopen the Tasmanian dams case as the result of this case would not have been different if the majority in that case had followed Stephen j. he states also argued that the provisions in question are not capable of being viewed as appropriate or adapted to the implementation of the conventions and recommendations. Decision: applying the Tasmanian dams case, there is no requirement that the cth has to show that the subject matter of the treaty is a matter of international concern in order to attract the external affairs power. The fact that a treaty has been entered into is sufficient to attract the head of power. The states’ argument that it was not necessary to reopen Tasmanian dams case was an impermissible attempt to avoid the principles of stare decisis and ratio decidendi. Further the scope of the external affairs power is not limited to the mplementation of treaties. But extends to places, persons, matters, or things physically external to Australia. Accordingly, legislation implementing the conventions and recommendations of ILOwas supported by the external affairs power. However, “to be a law with respect to external affairs, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty per Brennan cj. Toohe, Gaudron, mchugh and gummow jj at alr 146. a law will not be approprate and adapted in the necessary sense unless there is reasonable proportionality btwn the purpose of the treaty and the means adopted by parliament to achieve that purpose.
The concepts of purpose and reasonable proportionality are, therefore, only invoked to dertermine whether the law in question is reasonably capable of being considered as giving effect to the treaty and consequently being a law upon a subject which is an aspect of external affairs. At alr 147. the provisions concering termination of employment were therefore invalid as they went beyond the terms of the termination of employment convention 1982 Richardson v Forestry commission (tas) (1988) 164 clr 261 Facts: the lemonthyme and southern forests (commission of inquiry) act 1987(cth) established a commission of inquiry into whether two areas in Tasmania were eligible for listing as world heritage areas.
The act imposed a 12 mths prohibition on forestry operations or any act capable of adversely affecting the areas, except with the written consent of the minister. In determining if or not to give consent, the minister was only to have regard to australia’s obligations under the convention for the protection of the world cultural and natural heritage. Richardson, the federal minister responsible for the act, sought injunctions to restrain the Tasmanian forestry commission and a private company, which harvested and milled timber in the areas, from acting in contravention of the act. Issue: the def argued that the external affairs power could not support the act as there was no obligation to protect a particular area unless and until it was identified and delineated as a part of the natural heritage.
Mason cj granted interlocutory injunctions and reserved the question of if the act and inquiry were a valid exercise of the external affair power in s51(xxix) of the constitution. Decision: the act and the inquiry were valid. The taking of action by way of interim protection by prohibiting destruction of, or damage to, property under consideration for inclusion in the world heritage list was supported as action considered reasonably appropriate and adapted to the attainment of the convention’s objects. ‘the power extends to support a law required to discharge a treaty obligation which is known to exist and also a law which is required to ensure the discharge of a treaty obligation which is reasonably apprehended to exist.
In making provision for the establishment of the commission of inquiry and for the regime of interim protection of the protected area. parliament has made a legislative judgement abt the situation and the convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgement. It is enough that the legislative judgement could reasonably be made or that there is a reasonable basis for making it. Mason cj and brennan j at clr 295-6 reasonably apprehended to exist. Horta v Commonwealth (1994) 181 CLR 83 hc of Australia Eternal affairs power-validity of international treaty Facts: Australia and Indonesia entered into a treaty in 1989 regulating the exploration of and exploitation of petroleum resources in the area of the Timor Gap.
In 1990 the cth Parliament enacted the Petroleum (Australia-Indonesia Zone of cooperation act 1990 (cth) in order to fulfil its obligation under international law. Issue: the plaintiff, a group alleged to be “east Timorese” claimed that the cth Parliament did not have jurisdiction to enact the legislation as they claimed the treaty was void under international law and that entry into the treaty, its terms and performance of them by Australia was inconsistent with or in breach of its obligations under customary international law. Decision: the act concerned matters geographically external to Australia which had an obvious and substantial nexus with Australia , and so was prima facie a law within the external affairs power in s 51(xxix) of th constitution.
There is no requirement in the constitution that the cth’s legislative power is confined within the limits of australia’s egislative competence as recognised by international law. “even if the treaty were void or unlawful under international law of if asutralia’s entry into or performance of the treat involved a breach of australia’s obligations under international law, the act and the consequential act would not thereby be deprived of their character as laws with respect to “external affairs” for the purposes of s 51(xxix) per mason, brennan, dean, dawson, toohey, gaudron and mchugh jj at ALR 6. Polyukhovic v Cth (1991) 172 clr 501 External affairs power-war crimes
Facts: the war crimes act 1945 (cth) provided that any person who committed a war crime in Europe btwn 1, sep 1939 and 8 may 1945 was guilty of an indictable offence. Only an autralian citizen or resident could be charged under the act. polyukhovic was charged with an offence. But at the time of the alleged offence he had no connection with austrlia nor was there any law on war cries. Issue: he sought a declaration that the Act was invalid on the basis that it was beyond the scope the scope of the external affairs power. Decision: the act was valid under the external affairs power as it operated upon conduct which took place outside Australia. used without qualification or limitation, the phrase “external affairs” is appropriate in a constitutional grant of legislative power to encompass both relationships and things: relationships with or btwn foreign states an foreign international organisations or other entities; matters and things which are territorially external to Australia regardless of whether they have some identified connexion with austalia or whether they be the subject matter of international treaties, dealings, rights or obligations, per deane j at clr 599. Brennan J dissented on the basis that the external affairs power required a connection btwn Australia and the subject matter of the legislation, which his honour considered did not exist. Week 10 – Inconsistency section 109 1. Introduction In Australia, legislative power is held concurrently by the Commonwealth and the States.
In the event of inconsistency between Commonwealth and State laws,section 109 of the Constitution of Australia provides that: “| When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. | ”| Section 109, together with s. 5 of the Commonwealth of Australia Constitution Act 1900, have been considered to be the foundation for the existence of thejudicial review power in Australia.  In conjunction with the doctrine outlined in the Engineers Case, it has also significantly extended the reach of Federal legislative power in Australia.  "Invalid" does not mean that a State law is invalid in the postitivist sense that the State Parliament lacks power to pass it. The State law, though enacted with full validity, merely ceases to operate. Hence, in order for s. 09 to come into operation at all, there must be a valid State law and a valid Commonwealth law. When s. 109 takes effect, the State law yields to the Commonwealth law, but remains a valid law of the Parliament which enacted it. The practical significance of this will become apparent if, at some later date, the overriding Commonwealth law ceases to operate. ------------------------------------------------- Approach to interpretation The evolution of High Court doctrine in s 109 cases has led to three broad approaches to determine when there is inconsistency: * is it impossible to obey both laws? (the "simultaneous obedience" test) * does one law confer a right which the other purports to take away? the "conferred rights" test) * does the federal law cover the field in question? (the "cover the field" test) The first two tests, and in particular the first, are said to involve direct inconsistency, while the third test is said to be one involving indirect inconsistency. 2. Categories of Inconsistency * Direct Inconsistency – Where it is impossible to obey both laws simultaneously, a direct inconsistency is said to arise. Most commonly, one law says you must do X and the other law says you must not do X. This has also been described as simultaneous obedience inconsistency (Ex Parte Daniel; McBane’s case) Facts; Dr McBane was obliged by Commonwealth law not to discriminate on the basis of marriage.
However, a Victorian law made it a criminal offence for him to provide in vitro fertilisation to an unmarried couple. Doctors like McBane obeyed the state law, since they feared criminal penalties and the loss of their medical licenses. He sought a judicial determination of which law he should follow. Issue; Is there a direct inconsistency? If so, what is its effect upon the state law? Decision: Apply s109 to the direct inconsistency, the Court held that he should obey the Commonwealth Law, the state law would be invalid to the extent that it applies to him. * Rights Inconsistency – Another kind of inconsistency occurs where one law confers a right or privilege which the other takes away (Clyde case).
The first question is; Does the state law purport to take away a legal right, privilege or entitlement granted by a Commonwealth law? This occurs when the Commonwealth law says you can do X but the state law says that you can’t do X. Rights Inconsistency typically arise in two scenarios; 1. When licenses to carry on a certain activity are made pursuant to inconsistent conditions, such that in some other circumstances an individual will have a right so to carry on under one law but not the other. If the licensee holds licences under both laws, or neither law, there is no inconsistency. There is therefore no direct inconsistency since it is possible to obey both laws by either holding no licences, both licences or either license. 2.
When inconsistency arises operationally when certain acts are performed; if it illegal for Y to do X under one law, but not the other, then there is no inconsistency until Y in fact carries out X. * Covering the field inconsistency – Even if there is no direct conflict between the two enactments, there may still be s109 inconsistency where the commonwealth law evinces an intention to cover the field. This is an intention that the commonwealth law be the only law in a given field. The analysis consists of three steps: - what field is covered by the commonwealth law? - is the commonwealth law intended to be exclusive within its field? - does the state law operate in the same field as the commonwealth law? These are issues of statutory interpretation. * Operational Inconsistency – Cover the field inconsistency is sometimes eferred to in an expanded sense as connoting operational inconsistency. Laws are operational inconsistency even when addressing different fields but where the effect of one law is to render inoperative the other. This approach underlawy the reasoning in the case of Goulden. 3. Clyde Engineering v Cowburn That a simple test of logical contradiction was "not sufficient or even appropriate in every case", and enunciated this test: where one statute confers a right, and the other takes away the right, even if the right may be waived or abandoned, there is an inconsistency, whereupon the State law would then be invalid to the extent of the inconsistency.
Facts; The Forty-Four Hours Week Act 1925 (NSW) provided that workers under a Commonwealth award which stipulated a working week longer than 44 hours should be paid their full wages if they had worked for 44 hours. Cowburn was an employee of Clyde Engineering Co Ltd, and worked a 44 hour week. However, the Commonwealth award stated that a worker who performed less than 48 hours of work should have pay deducted for non-attendance. Issue; Has the Commonwealth Parliament appropriated the particular field of legislation? Decision; Knox CJ and Gavan Duffy J noted that the impossibility of obedience test (see R v Licensing Court of Brisbane; Ex parte Daniell) may not be appropriate in all circumstances.
They formulated a new test: where one statute confers a right, and the other takes away the right, even if the right may be waived or abandoned, there is an inconsistency, whereupon the State law would then be invalid to the extent of the inconsistency. Isaacs and Rich JJ agreed with Knox CJ and Gavan Duffy J regarding the denial of rights test. This test was applied later in Victoria v Commonwealth (1937) 58 CLR 618: "When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid" (per Dixon J). Isaacs and Starke JJ also concluded an inconsistency based on the covering the field test.
An inconsistency may arise where the Commonwealth law, expressly or impliedly, intends to cover the field completely, and supersede or exclude any other laws in that area. If the State law then enters that field, or the part of the field covered by the Commonwealth law, then the State law will be inconsistent, even though it may be possible to obey both laws simultaneously. Yes the two pieces of legislation are inconsistent. This is so both because the Commonwealth legislation intends to cover the field but also because of rights inconsistency. 4. Ex Parte Mclean The "cover the field" test became fully authoritative when Justice Dixon adopted it in Ex parte McLean, stating: Close consideration of the reasons given by Isaacs, Rich and Starke JJ. n Clyde Engineering Co Ltd v Cowburn shows that the view upon which they acted in that case and applied afterwards in H. V. McKay Pty. Ltd. v. Hunt was substantially that the Constitution empowered the Parliament to give and that Parliament had given the award this exclusive authority. The view there taken, when analyzed, appears to consist of the following steps, namely: 1. The power of the Parliament to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State enables the Parliament to authorize awards which, in establishing the relations of the disputants, disregard the provisions and the policy of the State law; 2. he Commonwealth Conciliation and Arbitration Act confers such a power upon the tribunal, which may therefore settle the rights and duties of the parties to a dispute in disregard of those prescribed by State law, which thereupon are superseded 3. sec. 109 gives paramountcy to the Federal statute so empowering the tribunal, with the result that State law cannot validly operate where the tribunal has exercised its authority to determine a dispute in disregard of the State regulation 5. Telstra v Worthing Background; These appeals arose out of an application for workers’ compensation made by an employee of Telstra (formerly Telecom) in respect of alleged injuries to his back sustained in 1986, 1988 and 1993.
The employee made the application under the Workers Compensation Act 1987 (NSW) (‘the NSW Act’) rather than under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Commonwealth Act’) which contains a workers’ compensation scheme for employees of the Commonwealth and of certain corporations, including Telstra. Telstra argued before the NSW Compensation Court that the Compensation Court did not have jurisdiction to determine the application for workers’ compensation because the NSW Act and its predecessor (the Workers’ Compensation Act 1926 (NSW)) did not apply to Telstra (or formerly to Telecom). The Compensation Court and, on appeal, the NSW Court of Appeal found that the NSW Act validly applied to give jurisdiction to the Compensation Court to determine the application for workers’ compensation.
The result of the Court of Appeal decision (if it had stood) would have been that, in respect of its employees, the Commonwealth would have been potentially subject to the workers’ compensation schemes of each of the states and territories as well as its own scheme, including possible application to the Commonwealth of the provisions of the state and territory schemes in relation to licensing and insurance of employers. A Commonwealth employee could have chosen whether to make his or her claim for workers’ compensation under the Commonwealth Act or under an otherwise applicable state or territory workers’ compensation statute. The Commonwealth Attorney-General had intervened in the hearing before the Court of Appeal to support Telstra’s argument that the NSW Act did not validly apply to give jurisdiction to the Compensation Court. Both Telstra and the Attorney-General appealed to the High Court from the decision of the Court of Appeal.
Decision; The appeals were heard on 9 December 1998 and the High Court gave judgment allowing the appeals on 24 March 1999. A Full Court of 7 justices of the High Court unanimously held that the Compensation Court did not have jurisdiction to determine the workers’ compensation application. In relation to the 1986 and 1988 injuries (which were sustained when the employer was Telecom) the High Court held that the NSW Act did not as a matter of construction apply to the Commonwealth, that Telecom, by force of Commonwealth law, was not subject to any liability to which the Commonwealth was not subjected (Telecommunications Act 1975 (Cth), s. 21(3)) and that there was therefore no liability which passed to Telstra in relation to the 1986 and 1988 injuries.
In relation to the 1993 injury (when Telstra was the employer and the NSW Act would otherwise have applied to it), the High Court held that the NSW Act was inconsistent with the Commonwealth Act to the extent that it provided for the determination of a workers’ compensation application made by an employee to whom the Commonwealth Act applied. The NSW Act and the Commonwealth Act provide different regimes of workers’ compensation entitlements, and application of the NSW Act to the employee’s claim would ‘qualify, impair and, in some respects, negate the application of federal law, with the consequence that, to the extent of the inconsistency thereby made out, the State law was invalid’ (161 ALR at 498). Section 109 of the Constitution provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. ’) Reasoning; The effect of the decision is that an employee to whom the Commonwealth Act applies cannot pursue a workers’ compensation claim under the NSW Act. The reasoning of the High Court in relation to inconsistency between the NSW Act and the Commonwealth Act would apply equally to the workers’ compensation schemes of the other states, the Northern Territory and the Australian Capital Territory. 6. Commercial Radio Coffs Harbour v Fuller Facts; the broadcasting and television act 1942 requires licences to be issued to commercial radio stations.
A condition of CRCH’s licence is that they erect two antennae. Breach of licence conditions is a criminal offence s 132(1). The environmental planning and assessment act 1979 (NSW) requires a further environmental impact assessment to be made. Issue; is the inconsistency between the commonwealth licence condition and the state planning law? Reasoning; Gibbs CJ and Brennan J: The licence condition imposes a duty to do a thing and a penalty for failing so to do. If it is impossible to do the thing without contravening another law, the provision should be construed as imposing a qualified duty stopping short of requiring contravention of other laws. There is therefore no inconsistency.
Wilson, Deane and Dawson JJ: The Commonwealth Act does not purport to state exclusively or exhaustively the law of commercial broadcasting. The license confers a permission to broadcast, not a right to immune to state laws. By concentrating on technical quality of broadcasting services, the commonwealth act actually leaves room for the operation of other laws at both levels of government. For example; CRCH had to obtain the permission of the Department of Aviation to erect the antennae, and the land had to be purchased or leased. The act is therefore intended to operate within the setting of other laws with the grantee of a licence will be required to comply. The Act was intended to be supplementary to or cumulative upon state law. Decision; No, there is no inconsistency.
Direct inconsistency – although the commonwealth act makes it an offence not to comply with licence conditions, it does not extend to breaching state law so there is no direct inconsistency. Rights inconsistency – The licence condition required CRCH to erect the antennae, but does not confer authority to do so. The planning laws did not prohibit construction. There is thus no inconsistency of rights. Covering the Field – The laws are directed to different purposes and therefore occupy different fields: One covered technical broadcasting requirements, the other concerns the environment. This case illustrates the difference between a requirement and an authority. A requirement says: in order to do X you must first do Y. However, it does not inherently confer authority to ignore state laws preventing Y.
This is especially so where the requirement is imposed by legislation focusing on a specific aspect of the regulation of X and where X or Q also need doing in order to complete Y. 7. Ansett v Wardley In practice, the three tests overlap. For example, in Commercial Radio Coffs Harbour v Fuller, the finding that there was no inconsistency between Federal and State laws depended on all three tests. In doing so, the reasoning by Mason J. in Ansett Transport Industries (Operations) Pty Ltd v Wardley was affirmed: If, according to the true construction of the Commonwealth law, the right is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law.
A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of NSW Pty Ltd v New South Wales (No 2) , where the permission for which Commonwealth law provided was neither absolute nor comprehensive.  Facts; Ansett refused to employ Deborah wardley on the basis of her gender.
Pursuant to state legislation, the equal opportunity board ordered her employment. Ansett argues that s 18 of the Equal Opportunity Act 1977 (Vic) is inconsistent with an airline pilots agreement cl 6B, certified under s 28 of the conciliation and arbritation act 1904 (Cth) to be an award. Issue; is there an inconsistency? Reasoning; Stephen J: Cl 6 of the agreement does not confer an absolute right of termination. It is not a right capable of exercise regardless of state law regulating grounds for its exercise. It must be understood in light of state laws. The agreement was not intended to cover the field. The agreement is concerned with industrial matters.
They should not be regarded as trespassing upon alien areas remote for tis purpose and subject matter, whether those areas concern nation’s foreign affairs or social evils such as discrimination upon the ground of sex. They are therefore directed as different subject matter. Mason J: The tests for inconsistency are interrelated and more than one may be applicable. The agreement is a general industry award determining the rights of employers and employees in the airline industry. It focuses on the nature of advancement and does not deal with dismissal at all. Instead it assumes that the general law of termination will apply. Cl 6 of the agreement is therefore subject to the general law. There is thus no direct or rights inconsistency between Cl 6 and the state act.
Decision; No, the agreement is not inconsistent with the equal opportunity legislation. 8. AMP v Goulden Facts; Goulden takes out a life insurance policy with AMP but Amp refuses to waive a premium benefit on account of Goulden’s blindness. Section 49 K (1) of the Anti Discrimination Act 1977 (NSW) makes it unlawful to refuse to provide a service on the basis of the physical handicap or impairment. Section 78(1) of the life insurance act 1945 9cth) requires that insurers approve policies by actuaries. Issue; Is there an inconsistency between s 78(1) and s49K (1)? Reasoning; The life insurance act assumes that insurers are able to classify risks in accordance with its own judgement.
It would alter, impair or detract from the commonwealth scheme of regulation established by the Act if a registered life insurance company was effectively precluded by the legislation of a state from classifying different risks differently. State legislation making it unlawful to take account of physical impairment in determining the Commonwealth Act. Such legislation would undermine and negate the legislative assumption of the insurer’s ability to self classify risks and fix premiums according to its actuarial adive. Decision; Yes there is covering the field inconsistency. 9. APLA v Legal Services Commission 10. Operational inconsistency – Mining Act Case Issue; Is the Mining Act 1978 (WA) provision, which qualifies the grant of exploration licenses in respect of a permitter area, inconsistent with the Defence Act 1903 (Cth) regulations?
Decision; The commonwealth regulations were not intended to cover the field. Any inconsistency would be operational only if the licenses granted under the mining act were granted over a permitter area then there would be operational inconsistency. However, that situation has not yet arisen. For now, there is no inconsistency. 11. s109 as a self executing provision 12. manufactured inconsistency – Overview 13. Botany council – 3rd runaway 14. Bayside Council v Telstra 15. Workchoices In New South Wales & Ors v Commonwealth, a majority of the High Court of Australia held that the federal government's WorkChoices legislation was a valid exercise of constitutional power.
In essence, the majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) found the Constitution's corporations power capable of sustaining the legislative framework, while the conciliation and arbitration and Territories powers were also seen as supporting parts of the law. Further, the majority also held that the legislation permissibly limited State powers and did not interfere with State constitutions or functioning. A minority (Kirby and Callinan JJ) dissented. The Commonwealth argued the WorkChoices legislation was constitutionally valid. It said the corporations power supported any law that directly created, altered, or impaired the rights, powers, duties, liabilities or privileges of a corporation.
Further, it was said that the power was validly exercised by any law: * relating to the conduct of those who work for corporations * relating to the business functions, activities or relationships of corporations * protecting corporations from loss or damage, and * otherwise materially affecting a corporation. The principal argument of the Government of Australia is that the legislation is supported by Section 51(xx) of the Australian Constitution, commonly known as "the corporations power", which gives the Parliament of Australia the power to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. " Some sections of the legislation are also based on other powers in the Constitution, for example the territories power, insofar as the laws apply to territories, and sections relating to employees of the Government of Australia.
Generally speaking, those sections were not challenged by the states and the unions Shortly put, the plaintiffs argued the WorkChoices legislation was constitutionally invalid. They said that the corporations power did not support the legislative framework. In this regard, the plaintiffs argued there were three alternative limitations on the corporations power: * the power was limited to regulation of corporations' external relationships, and/or * the power was limited to laws in which the nature of the corporation was significant, and/or * the power was limited by the existence of the conciliation and arbitration power. The states and trade unions involved in the case divided the issues between themselves, with the lawyers for each party arguing a particular part of the overall argument.
The challengers argued that the legislation was not a valid law under the Constitution of Australia, because it is not supported by any of the heads of power granted to the Parliament of Australia by Section 51 of the Australian Constitution. Their principal argument was that the corporations power did not extend far enough to support the legislation. They distinguished the WorkChoices legislation from other laws which rely on the corporations power (such as the Trade Practices Act 1974) on the basis that those other laws are "manifestly laws with respect to... corporations" because they have "a structure whereby the corporation is a relevant actor and the activities in question are to be in trade or commerce. " That is, those other laws were aimed directly at corporations, and more specifically at their trading and commercial activities.
They argued that the WorkChoices legislation was really directed at industrial relations, and was only remotely connected with corporations. The challengers argued that the limits of the corporations power had not really been tested, since the vast majority of the case law was focused on determining to which corporations the power applies. The states also argued that since the time of Federation, the industrial relations system in Australia had been largely state run. The Commonwealth's conciliation and arbitration power is specifically limited to interstate disputes, and does not extend to disputes existing entirely within one state. The majority of the High Court : * rejected the plaintiffs' argument that the corporations power was limited to external relationships.
Their Honours said it was inappropriate and unhelpful to draw any distinction between external and internal relationships of a corporation. * did not expressly accept the plaintiffs' argument that the nature of the corporation had to be a significant element in the law. Their Honours said that the corporations power was validly exercised if a law prescribed norms regulating the relationship between corporations and their employees. * rejected the plaintiffs' argument that the corporations power had to be limited by the existence of the conciliation and arbitration power. Their Honours said, amongst other things, this contention was contrary to the Constitution's text and structure and High Court precedent since 1920.
Their Honours also rejected other arguments of the plaintiffs that parts of the WorkChoices legislation * which covered employers in Territories were an invalid exercise of the Territories power * which removed State and Territory industrial laws from the new federal workplace relations system were an invalid exercise of the corporations power or curtailed or interfered with the capacity of States to function The significant reasons put forward by the majority include: * At paragraph 198: a law which regulates the relationship between a constitutional corporation and its employees or affects constitutional corporations in the manner upheld in Fontana Films is a law with respect to a corporation under the corporations power. Dissenting Judgement; The significant ideas put forward by Kirby J include: * At paragraph 481-3: it is unnecessary for this case to outline or define the scope of the corporations power. The corporations power is restrictions placed on laws regarding industrial disputes by s51(xxxv). What is forbidden is basing a law on one head of power (i. e. corporations power) when it is clearly a law with respect to another head of power (i. e. ndustrial disputes); * At paragraph 607: laws with respect to industrial disputes must fit within the two safeguards in s51(xxxv) namely interstateness and independent resolution; * At paragraph 609 (titled Preserving Industrial Fairness): the idea of a fair go that was at the heart of federal workplace laws is destroyed which has the potential to affect the core values that shaped the Australian Community and Economy; and * At paragraph 613: the high court should be attentive to the federal character of the Constitution. Callinan J summarises his judgment at paragraph 913. Generally, the reasons set down in paragraph 913 include: * The Constitution should be read as a whole; The substance of the legislation in question is with regards to industrial affairs; * The industrial affairs power includes the two safe guards; * As much as the corporations power may purport to support the legislation, the power is still subject to the restrictions of the industrial affairs power for industrial affairs legislation; * To affirm the validity of the Act would be to trespass on the functions of the states; and * The validation of the Act would result in an unacceptable distortion of the federal balance. Cases Carter v Egg and Egg Pupl Marketing Board (Victoria) 1942 No inconsistency was found between the commonwealth egg control regulations and the state egg and egg pulp marketing board regulations 1941 made under the marketing of primary products act 1935. The court held there was no intention on the part of the commonwealth to exclude state legislation on eggs, and there had been no conflict in the operation of the laws. Reasoning; Section 109 only requires that the state law remains inoperative or so long as the Commonwealth law is in effect. The word invalid in s109 should be interpreted as meaning inoperative. The state law, though validly enacted, ceases to have practical effect while the Commonwealth law remains. However, once the Commonwealth law is repealed, the state law automatically regains its operation. Clyde Engineering Company Ltd v Cowburn 1926 An employee worked a 44 hour working week in accordance with the terms of the fourty four hours week act 1925 (nsw). His employer calculated his salary in accordance with an industrial award made under the commonwealth conciliation and arbritration act 1904, which provided for a 48 hour week.
The employee sued for the balance of wages, which he argued, were owing. The high court held that the state law was inconsistent with the terms of the commonwealth award as interfering with rights and obligations imposed by the award. Isaacs J outlined the covering the field test of inconsistency in this case. Ex Parte McLean 1930 Mclean argued that s 4 of the masters and servants act 1902 was inconsistence with an industrial award made under the commonwealth conciliation and arbritration act 1901. Inconsistency was found in relation to differential penalties. Dixon J explained the covering the field test and the significance of Commonwealth Intention.
The "cover the field" test must be implemented in three steps: * a finding as to the field or subject matter regulated by the Commonwealth Act, * a determination as to whether the Commonwealth law intended to regulate that subject matter completely, and * a determination as to whether the State law interferes with or intrudes upon the field covered by the Commonwealth law. Consequences of Inconsistency – If an Act is inconsistent and therefore unconstitutional, the court may; 1 Declare the whole law to be invalid 2 Declare a part of the law only to be invalid (severance) 3 Interpret provisions of the law so that it is constitutional (read down) Week 11 – The Bill of Rights Debate 1. Bill of Rights 1 – Introduction
There were many different models available to our constitutional drafters, because we came fairly late into the piece. There were already many other constitutions for other countries that were available for us to look at by the time in the 1890s up to the 1900s, that our drafters were thinking about how the colonial states might actually become a nation and how we might form ourselves into that commonwealth we now know. We had a lot of models and one of them, that was influential on ours, was the USA Model. The USA constitution, bill of rights. During the time of drafting 1890 to 1900, it was something that the framers discussed. It wasn’t just that they didn’t think of it, they did turn their minds to it.
The Tasmanian attorney general , was particularly an advocate for human rights by way of including just one cause in the constitution, that would broadly address the issues. The broadly worded clause that was going to be included was about protection citizens of the commonwealth from any laws that the new commonwealth parliament might pass, which would abridge any privilege or immunity that those people who were citizens of the colony, they’re in the sense submitting themselves to the powers of a newly formed central government. ‘how do we preserve our identity, are we giving our central government powers that might get out of hand? ’ and what if they were going to start parting legislation that was in violation of people’s humans rights?
And indeed the drafters of the constitution, turned their minds into whether they should include this clause, saying where the commonwealth parliament should not be able to abrige any privlige or immunity that the citizens of the newly formed commonwealth, anything that would deprive any person of life, liberty or property without due process of law, the clause also guaranteed equality before the law. Unfortunately, that broadly worded equality before the law not taking people life liberty or property big important issues without due process of law. That was no accepted by the framers, they rejected the inclusion of such a clause in the constitution. And to this day we don’t have a bill of rights in Australia. Only country that doesn’t. Also, that there’d been territory and state movements towards introducting the bill of rights to those levels.
The ACT has introduced one, and VIC and we are not able to fit in a real coverage of the territories power and what the interaction is between the commonwealth and the territories as opposed to states, territories are much more closely tied to the commonwealth than the states are. The territories are much more under the control of the commonwealth. So in that sense, the fact that the ACT had passed its human rights act was fairly significance, and vulnerable to being overridden by the commonwealth government, in a way that states do have greater protections and are more independent. We’ve got a groundswell kind of movement coming from the states. The former commonwealth government had not moved to introduce any bill of rights and it again wasn’t an oversight.
There are indications that the former government hadn’t introduced a bill of rights not because they hadn’t thought of it, there were indications that they were actually opposed to the introduction of the bill of rights at a commonwealth level too. To this day no bill of rights in Australia. Reasoning why one wasn’t introduced in the first place. It wasn’t that they forgot, we know that the drafters thought of it, and we know that the drafters did turn their minds to this, they rejected the idea. George Williams gives a nice extract in the text, generally the framers were on the view for the variety of reasons it wasn’t necessary to include a bill of rights in our constitution.
They placed a great deal of faith in the rule of law and the ability of the common law to adapt itself in such a way that there was sufficient protection for a civilised society. There’s an element there.. the drafters and framers forming a new nation but having a certain reluctance, a cultural cringe about stepping forward and becoming a true independent nation on the world stage, particulary as a part of the british empire. We see there is an element of cultural cringe in the sense that you might say that if we put a bill of rights in our constitution, what will other people think of us. Will they think that we have to restrain ourselves from committing infringement of human rights by putting this bill of rights in our structure, what will the other more established countries think of us.
Recalling that the US constitution, contains a judicial review feature and we have it in our constitution too, important thing we took from them, the idea that courts can strike down legislation by reference to the constitution where constitution does not support said legislation then that would invalid, and in that sense the courts have judicial review. Given that we had adopted that approach from the USA, we’ll see very much when we look at state powers, but we will see that in THE UK it is different, there is a strong notion of parliamentatary sovereignty, the idea that parliamentary power to pass legislation is unfetted is there is no constitution in the UK and we need to remember historically we were really moving away from that model, as part of the british empire. That represented a change in terms of our historical approach to models of government. So having that judicial review model was considered to be quite a restriction placed upon a parliament that was set up.
So the new commonwealth parliament was considered to be restricted by this presence of this judicial review, also that the new commonwealth parliament only had specified heads of power, while the states had everything else that was left, that was also viewed as a restriction on this new commonwealth central government, we were being set up. So the range of reasons, the framers were on the view that the new commonwealth parliament was already restricted enough by the addition of judicial review, further had specified enumerated heads of powers to begin with, the addition of a bill of rights to which the commonwealth parliaments law making powers would effectively answerable, so if the courts could strike down laws of the commonwealth parliament on the basis of inconsistency with the bill of rights, to add that in the process, the framers thought that was going too far. We would end up with a commonwealth government that was too restricted in their view.
The other central reason was that the colonies having considered the matter did want to retain their right to pass legislation discriminating between people on the basis of race. Essentially the gold fields, time when there had been a gold rush in Australia, the colonies wanted to pass legislation that kept persons of Asians or Africans background from legally being able to mine gold. The colonies didn’t want to set up a structure whereby the new high court strike down legislation on the basis that it discriminated that way, and they viewed any introduction of the bill of rights, raising that kind of potential too. 2. Bill of Rights 2 – Human Rights overview
There is no definitive definition, of what constitutes human rights. However, there are certain types of rights that are fundamental and should be recognised. We have free speech, free assembly , the right to protest, freedom of religion, political thought or conscious, freedom of slavery, right to food and shelter, freedom from arbitrary punishments or from cruel punishments, the rights to just compensation for the compulsory acquisition of property, that’s in our constitution, s51(31). Whether we have a right to euthanasia? Part of the universal declaration of human rights 1948, after ww2, early UN initiatives; what the content of human rights is considered to cover there?
General things to be aware of when thinking of human rights need to recognise that rights are not absolute, in the sense that there are sometimes societal justified reasons why human rights may need to be limited and there are times where it might be quite justified for a particular society to place limitations on those rights, but there’s a further issue that flows from that that any such limitations should only be what is really necessary in order to contain whatever societal risk is being responded to and in particular that they should be limitations that are only consistent with a free and democratic society. Henkin Extract. Ok right to free speech ; those are absolutes and nothing can derogate from that but sometimes there is a need to place limitations on those, and what the rights propoments would say response, well acknowledging there might be times when its necessary to place limits on rights they should nevertheless, only be consistent with the aims of a free and democratic society.
So we can see response to things going on but then also a comeback from those who are rights proponents. Its something we’ll see, Canada and the ACT actually point to this. They say that any limitations on the rights that are identified in respectively the Charter in Canada or the Act in the ACT, that if there are any limitations placed upon the rights they should only be of such that consistent with a free democratic society and only go so far if necessary. Context to think about this is terrorism it is an apparent emergency, people have different views on that threat, on the basis of that, there have been a range of laws on that, that people might consider into fear with the political freedoms.
Some of laws passed in protecting society from terrorism do place often zeal limitations on rights of association and free speech and that raises a further question, example free speech, so if thats not an absolute sometimes there is a neeed to place limits on it and we may see the restrictions or the laws passed in the name of protecting society from terrorism certainly placed restrictions on the rights of free speech, but the deeper response to that , is whether or not those are a proportionate response, is that limitation justified in a free and democratic society. 3. Bill of Rights 3 – International Aspects Look at some of the protections available at the international level, through international law, some of the treaties or covenants, and to look at the structures that are available for human rights protection at an international level. 948 Universal declaration of rights, an early UN initiative, that one is not a treaty or a convention, although it is considered to be customary international law however, in terms of application internally within Australia, we know that customary international law does not apply directly within countries. There are three main instruments at this level , we have already discussed the universal declaration of human rights the early UN statement of the content of the human right protection, the other two conventions, are the international covenant on civil and political rights ICCPR and the international covenant on economics social and cultural rights, both which commenced in 1966.
Australia has ratified both of those covenants however, ratification of an international agreement here a covenant, ratification of these alone does not make them part of domestic law, we need commonwealth legislation that implements those treaties or covenants or other types of international agreements within Australia. So the fact that Australia had ratified the ICCPR or also the international covenant on economic social and cultural rights does not mean that those values are directly enforceable by domestic Australian courts either. That said, certainly aspects of the ICCPR have been implemented within Australia by the commonwealth government in particular the anti discrimination aspect are reflected by a range of commonwealth acts prohibiting discrimination on racial or sexual or other types of basis.
But we don’t have a wholesale implemnation of the ICCPR within Australia such as a bill of rights would presumably represent. One other issue in relation to the ICCPR it contains an optional protocol, which is kind of like anappendix to the main covenant, to which Australia has exceeded. That optional protocol sets up a process whereby individual people in the countries that have exceeded to that protocol may approach the UN human rights comminitties for a determination on matters relating to human rights in particular where that individual feels where his/her human rights have been violated by the laws by his/her country. Now there are some requirements.
Firstly the complainant must have exhausted all available domestic avenues of redress in relation to their claimed violation of human rights, so they must be through all of the national processes that are available within their country, the UNHRC Doesn’t actually enforce their rights, it’s roll is about hearing complaints and then making recommendations back to the complainants country where the UNHRC has determined that there are laws placed in that country that are in breach of internationally recognised human rights, however, those recommendations back to the country are not binding and the country may or may not implement the recommendations.
So the original complainant doesn’t actually get a binding determination and its also not about that person pursuing any individual type of action in the sense of being compensated for any infringement of human rights but it nevertheless does provide an important avenue for taking the matter further if human rights appear to be violated within a country and there is no resolution through the national procedures , there is a further international avenue that can be pursued for dealing with those kinds of human rights violations. Also, where we say that countries may or may not implement the recommendations of the UNHRC, quite often they do, not always the case they are just ignored. Example; in relation to Tasmanian laws, outlawing male homosexuality into well in 1990s, it was a criminal offence, those laws were the subject of a complaint to the UNHRC and in response to the committee’s recommendation back to Australia indicating that it considered those Tasmanian laws to be a violation of protected human rights, the commonwealth government did pass legislation that effectively overrode the Tasmanian criminal code on this issue.
This does provide us an example of where the commonwealth passed legislation purporting to cover the whole field on this issue of the whole of Australia and effectively left no operation for Tasmanian criminal code in this respect. 4. Bill of Rights 4 – National Models (US) The constitutional issue about where would we put the bill of rights, what kinds of mechanisms would it contain in particular, would it contain the ability for the parliament to opt out of compliance of bill of rights, or human rights protected in there, would we allow power of judicial review, whereby courts can strike down laws on the basis of non compliance with protected human rights through the bill of rights, and would we want a bill of rights that operates primarily as an interpretive tool and in particular should there be an obligation placed upon courts when they are interpreting egislation to do so consistently with protected human rights and further should any model involve of an obligation upon courts to recall back any inconsistencies they discover in particular where a court finds that it cannot interpret a piece of legislation consistently with protected human rights should that be reported back to the parliament and then should there be any obligation on the parliament to make changes to the legislation or not. The kinds of issues that might be taken into consideration when considering what type of model might be appropriate to the introduction in Australia, if we were to introduce a bill of rights in the future. Of course in Australia, its further complicated because we have our federal model and given that we don’t have a federal bill of rights, some of the states and territories have or are taking it upon themselves to address these sort of issues in their own way.
Classic example is the USA constitution and look at the bill of rights entrenched in their constitution. When we say that their bill of rights in the USA is entrenched in the constitution, that points that it is part of their constitution but use of the word entrenched , means that the bill of rights is protected within the constitutionally model, in the sense that it is a constitution like our own Australia is not easily changed and therefore that the fact the bill of rights is in the constitution means that its more protected than it would be if it was placed else where in the constitutionally model. 1789 finalisation, the first 10 amendments in which typically talk of the bill of rights 1791.
Shortly after the original constitution was formed, we have this range of amendments and thats where you hear people, tv shows, references to my first amendment rights or my fifth amendments rights etc. Really what they’re talking aboiut there is the bill of rights, but passed largely as an amendment of the original form of the constitution. We know several of those; Freedom of assembly, first amendment, protection for free speech, freedom of religion, freedom of association and the first amendment particulary the aspects of free speech and right of assembly have certainly been impacted by US legislation such as the patriarch act dealing with the perceived threat of terrorism. The second amendment interesting one, the right to bear arms. a well regulated maliciour being necessary to the security of a free state, the right of the people to keep in bear arms shall not be infringed’. Its always popularised as the right of citizens to carry guns, but would people agree it does seem to be reference to the army. We would probably even suggest that is fairly expansively read. Look at the wording. Fifth amendment – being the right not to incriminate yourself. That’s where we have deprovation about life liberty or property without due process of law, that also comes into that part as well. The 14th amendment in relation to a protection for a range of liberties, that word liberty, given that appears in there, has been very broadly interpreted. People may get a sense that these may be read quite broadly.
Particularly relates to the role of judges in interpreting the scope of human rights protected by the bill of rights and indeed how that further connects back into the whole process of judicial review and various critiques made by that doctrine. The constitutional model and the first thing we notice about the USA bill of rights importantly its part of the constitution, its entrenched into the constitution; the concept of judicial review, the significance of being in the constitution is that in the USA model because they have the doctrine or principle of judicial review as part of their constitutional model the supreme court has the power to strike down legislation that is inconsistent or not supported by the constitution. And their constitution includes the bill of rights.
Important for the strength of protection for human rights derives from the placement of the USA bill of rights within the constitution which means that if the US CONGRESS takes it upon themself to pass legislation that infringe upon the rights protected in their constitutional bill of rights, taking away peoples rights of bear arms in USA, then the supreme court could strike that down because they have judicial review. So this is what we refer to as a strike down power that the courts have allowing them to invalidate legislation on the basis of inconsistency with the constitution and this case we know that the constitution includes a bill of rights in USA.
In Australia, we do also have the strike down judicial review model but that main difference is that our constitution does not contain a bill of rights. So having considered that strike down consequence of that constitutional model that involved the judicial review doctrine , move on to consider some critiques that have been made of that judicial review concept. And the first of these grounds upon which judicial review has been criticised, is that it provided the courts with the opportunity for what is referred to judicial activitism. It does give the courts a certain power to interpret what is the content of human rights and how broadly do the protections actually apply.
We may have a situation where the judges read the protected rights quite broadly to apply to alot of things, or a more conservation bench and those human rights read more narrowly, certainly judicial review and the ability for courts to strike down acts of parliament is questioned by some on the basis that judicial activism can lead to broader readings of the constitution or of the bill of rights itself. Also, given that courts having this sort of power to determine the validity of the legislation by reference to the bill of rights, if we’re going to give the courts this sort of power, we are going to remember that not only can the courts read the existing human rights broadly or narrowly at other times, but that implied guarantees may also be read into the constitution in suitable circumstances, in our situation in Australia, things like freedom of political communication for instance is implied only into the constitution, not written there expressly. 14th amendment – what liberty constitutes? 003 decision, whereby Texas law that criminalised homosexuality between consenting males, those laws were overturned in the case of Lawrence v texas, it was as recent as 2003, by reference to the fact that there’s constitutional guarantee of liberty amongst other things the court was able to strike down those laws, also laws that criminalised abortion have been struck down under that amendment, roe v way decided under that of whats a liberty and how broadly that can be interpreted, so that laws that criminalised abortion were struck down in the USA. How the judges interpret the protected right what is the scope of the right and how protected, does give the judges quite a lot of Leigh way in a sense to say that they can strike down by reference to rights, then interpret the scope of. This is one criticism that has been made. The other; is the issue about whether its right that an elected legislature thats elected by us, the parliament, so we elect them, and the parliament is answerable to the voters, is it then right that the legislation passed by that parliament should be able to be overturned by unelected judges.
There is a body of thought that really questions whether this is a valid approach and has questioned the whole theory of judicial review on that basis. We see there the tension of judicial review on one hand and the idea that judges should be able to strike down legislation but with reference to stable and with reference to principles set out in the constitution, on the other hand we have parliamentary sovereignty that says that parliament should be able to pass legislation without the limitation restrictions being answerable to the courts. Essentially what we’re looking at is whats the correct balance between the parliament and the courts in terms of the power of each.
Who has the upper hand? Should the parliament have, given they are elected representatives? Or should the courts have this role in the sense of overseeing the validity of parliament’s legislation? NSW article says that the parliament is better placed to work out controversial issues and what the law should be on controversial issues rather than the courts. On the other hand they acknowledge that sometimes political pressures within the parliament can be a problem too when passing legislation, so maybe they should be subject to some scrutiny of the courts in the form of judicial review. So we can see there are a range of competing thoughts of issues and thoughts.