Human rights under the Australian constitution / George Williams and David Hume.

Format:

Book

Author/Creator:

Williams, George, 1969- author.

Hume, David (Writer on law), author.

Language:

English

Subjects (All):

Human rights--Australia.

Human rights.

Australia.

Civil rights--Australia.

Civil rights.

Constitutional law.

Physical Description:

xxxii, 388 pages ; 25 cm

Edition:

Second edition.

Place of Publication:

South Melbourne, Victoria, Australia : Oxford University Press, 2013.

Summary:

Human Rights under the Australian Constitution is the leading text on how the Australian Constitution protects human rights. It provides a comprehensive overview and analysis of the key public law principles, including the full range of express and implied rights in the Australian Constitution. It does this within a broader context, including the drafting and origins of the Australian Constitution and the interaction of constitutional principles with the common law, statute law and international law. The Australian position is examined in light of developments in comparable legal systems, including the United States, Canada, the United Kingdom and New Zealand. The result is a thorough work that examines in context areas of law of great importance to Australian democracy, including freedom of speech, the right to vote, freedom of religion, the acquisition of property on just terms, judicial independence and the right to a fair trial. The book intersperses discussion and analysis of existing doctrine with critique and where appropriate suggestions for legal development. This second edition updates the material in the first edition to reflect subsequent developments and expands the discussion in many areas, such as judicial power, which have increasingly drawn High Court attention. Book jacket.

Contents:

1 Human rights in Australia 1

1 Introduction 1

2 What are human rights? 2

3 The legal protection of human rights in Australia 8

3.1 State and territory law 8

3.2 Federal statute law 14

3.3 Commonwealth parliamentary processes 20

4 International law 24

4.1 Shaping the interpretation of statutes 26

4.2 Informing the development of the common law 29

4.3 Providing extra-legal facts which can have legal consequences 31

4.4 Affecting procedural powers and obligations? 31

5 The common law as a source of rights and freedoms 33

5.1 Statutory construction and human rights 34

5.2 Statutory construction: the principle of legality 36

5.2.1 Overview 36

5.2.2 Breadth and depth of the principle of legality 41

5.2.3 The future of the principle of legality 41

5.3 Are there 'fundamental rights and freedoms' which cannot be abrogated? 47

5.4 The common law and the Constitution 48

6 The state of human rights protection in Australia 49

2 The drafting of the Australian Constitution 51

1 Introduction 51

2 The making of the Australian Constitution 53

3 The influence of comparative models 57

4 Human rights at the constitutional conventions 60

5 Andrew Inglis Clark's draft constitution 62

6 Clauses 46 and 81: freedom of religion 62

7 Clause 65: trial by jury 64

8 Equal protection of the laws, and due process of law 65

9 The framers, human rights, and cl 110 66

9.1 Responsible, nor republican, government 67

9.2 Maintaining discriminatory laws 69

10 The issue of race in other clauses 70

11 The rights of women 71

12 Constitutional amendments and human tights 73

13 Underlying principles 74

3 Constitutional interpretation 76

1 Introduction 76

2 Literalism and the Engineers Case 78

2.1 The Engineers Case 78

2.2 Literalism, legalism and human rights 79

2.3 Challenges to the Engineers Case 85

2.3.1 Extrinsic factors in constitutional interpretation 85

2.3.2 Substance, not just form 87

2.3.3 Inconsistent applications of literalism 88

2.3.4 Literalism and the construction of express constitutional guarantees 89

3 History and constitutional interpretation 91

3.1 The Convention debates as an aid to interpretation 92

3.2 Limiting constitutional tights by use of the Convention debates 94

3.3 Original ism and dynamic development 98

4 Popular sovereignty 99

5 'Abstraction from power by constitutional guatantees 105

6 Human rights principles in constitutional interpretation 107

4 The text and structure of the Australian Constitution 111

1 Introduction 111

2 Rights protections in the Australian Constitution 112

3 Federalism 116

3.1 Federalism as a human rights protection 116

3.2 Implications from federalism 119

4 The separation of powers 121

4.1 Limits on 'legislative power' 122

4.2 Limits on executive power 122

4.3 The separation of judicial power 124

5 Representative government 124

6 Responsible government 127

6.1 The nature and constitutional basis of responsible government 127

6.2 Responsible government and the protection of rights 128

7 The rule of law 131

7.1 Implications from the rule of law 133

8 Proportionality 135

8.1 Factors bearing on proportionality 137

9 'Freedoms' or 'immunities' and 'rights' or 'individual rights' 142

9.1 Consequences 148

9.2 The doctrinal basis 152

10 Remedies for 'breach' of the Constitution 155

5 Freedom of political communication 161

1 Introduction 162

2 The development of the implied freedom of political communication 163

2.1 The Murphy supernova 163

2.2 The High Court discerns and develops the freedom 164

2.3 Securing the basis of the freedom 168

2.4 Post-Lange development of the freedom 174

3 The systemic basis of the freedom and its consequences 176

3.1 Nattower basis than other free speech protections 176

3.2 Not an 'individual right" to speak 180

3.3 Foreign jurisprudence is of limited assistance 181

3.4 Operates at lease as a Vertical' immunity 182

3.5 The status of the person who expresses the communication 183

3.6 The severity of the burden on receipt of information is relevant 183

4 Political communications: 'coverage' of the implied freedom 184

4.1 Exclusions: non-political communications 184

4.2 Exclusions: non-federal communications 186

4.3 Inclusions: communications on federal political issues 188

4.4 Categorical exclusions? 191

4.5 Are some political communications more important than others? 192

5 'Effective burden on the implied freedom 193

5.1 A greater role for this limb? 194

5.2 Is there a need for a pre-existing common law or statutory freedom? 195

5.3 Direct and incidental burdens 199

6 'Compatible ends' 202

6.1 Laws advancing interests other than the constitutionally prescribed systems 203

6.2 Laws advancing the constitutional systems 205

6.2.1 Laws advancing aspects of the constitutionally prescribed systems other than freedom or communication 206

6.2.2 Laws advancing the constitutionally prescribed systems by enhancing freedom of communication 207

6.3 Incompatible ends 210

7 Proportionality 212

8 Derivative freedoms: political movement and political association 214

6 The right to vote and equality of voting power 219

1 Introduction 219

2 Commonwealth Parliament's power to prescribe the franchise 220

3 Could s 41 protect a right to vote? 222

4 'Directly chosen by the people' and universal suffrage 230

4.1 The development of ss 7 and 24 as the basis of universal suffrage 232

4.2 Conditional exceptions to universal suffrage 237

4.3 Fundamental debates about judicial review avid rights 243

5 Equality of voting power 250

7 Civil rights 256

1 Introduction 256

2 Religious rights 256

2.1 Overview of s 116 256

2.2 The 'making of law' 259

2.3 'For' 260

2.4 'Establishing' any religion 264

2.5 'Prohibiting the free exercise of any religion' 268

2.6 'Religion' 271

3 Rights of out-of-state residents 272

3.1 Section 117 and equality protections 272

3.2 The narrow approach to s 117 274

3.3 The broad approach to s 117 276

3.4 The future of s 117 281

8 Economic rights 283

1 Introduction 283

2 Acquisition of property on just terms 284

2.1 Overview 284

2.2 'Acquisition': taking 287

2.3 'Acquisition': acquisition of an interest in property 291

2.4 'Property' 296

2.5 'Just terms' 300

2.6 'For any purpose in respect of which the Parliament has power to make laws' 301

2.7 Application to the states and territories 302

2.8 Laws which acquire property but are not covered by s 51(xxxi) 304

3 Freedom of interstate trade, commerce and intercourse 309

3.1 The rise and fall of the 'individual rights' approach 309

3.2 The post-Cole v Whitfield approach 314

3.3 The freedom of interstate intercourse 318

4 Civil conscription 321

9 Judicial power 325

1 Introduction 325

2 Judicial review 328

2.1 Judicial review of constitutional validity 328

2.2 Judicial review of Commonwealth public power 333

2.3 Judicial review of state public power 335

3 Exclusively judicial powers 338

3.1 Punishment consequent on a determination of guilt 340

3 2 Detention authorised otherwise than by judicial order 344

3.3 Overturning an exercise of Commonwealth judicial power 351

3.4 Retrospective criminal laws 353

4 Trial by jury 355

4.1 Overview of s 80 355

4.2 'Trial ...on indictment' 357

4.3 'Trial ...by jury' 360

4.4 'Shall' be by jury 363

4.5 'Offence' 364

5 'Due process' in the exercise of judicial power 365

5.1 Independence and impartiality 369

5.2 Processes or functions repugnant to Ch III 372

5.2.1 Reasons for decision 372

5.2.2 The open court principle 373

5.2.3 'Vague or polycentric' standards 373

5.2.4 Procedural fairness 375.

Notes:

Includes bibliographical references and index.

ISBN:

9780195523119

0195523113

OCLC:

846537002

Online:

Inhaltsverzeichnis