High Court Review 2010: The Resurgence of Rights?

In 2010 the High Court delivered several judgments with potentially significant implications for the protection of human rights in Australia. It invoked the doctrine of the implied constitutional freedom of communication in Aid/Watch; found that offshore processing of asylum seekers must comply with procedural fairness and natural justice; invalidated elements of the SA government's control order scheme as it encroached on the independence of the judiciary; and invalidated amendments to electoral laws that shortened the period for enrolment. In this review we evaluate the implications of these decisions in the wider context of the protection of human rights in Australia. We argue that while these decisions have made an important contribution to restating the boundaries of rights protection, there are significant limitations in relying on judicial review as a mechanism of rights protection within the Australian constitutional framework.     

Tweet Justice: The Canadian Court’s Use of Social Media

ABSTRACT

Like other political institutions in Canada, the judiciary has entered the digital age. Indeed, Canadian courts have been using Twitter for almost a decade. Despite this, there has been very little systematic examination of how Canadian courts use Twitter and the nature of the content they produce. While digital technologies create new challenges for all political actors, this is especially so for the courts, which exist in a very “traditional and conservative environment”. In this research note, we develop a framework for analyzing court-produced content on social media. This framework draws from concepts from digital politics and legal studies. We then apply this framework by conducting a content analysis of tweets from active court Twitter feeds in Canada.     

High Court Review 2006: Australian Federalism—Implications of the WorkChoices Decision

This year's High Court Review focuses exclusively on the WorkChoices decision, in which the federal government's new industrial relations regime was upheld by the High Court as within the Commonwealth's powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Court's preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.     

The politics of the public and private spheres: the High Court’s decision in Monis and the gendered privileging of free speech

The High Court of Australia’s decision in Monis v The Queen and Droudis v The Queen concerned whether Monis and Droudis’s use of the postal service to send offensive letters warranted the constitutional protection of the implied freedom of political communication. The outcome was a split decision: the three men judges found for Monis and Droudis, and the three women judges against. We argue that this decision was significant because it draws attention to the law’s key role in framing political understandings of the nature of and demarcation between public and private spheres. The Court’s interpretations concerning how we should understand and apply the foundational relationships binding the state, the individual, and the public and private spheres in the twenty-first century highlights the gendered complexities of the politics shaping those relationships. It also highlights the gendered privileging of what sort of speech should be exempted from the law’s immediate purview, and in so doing, further reveals the masculinism upon which Australia’s constitutional framework rests.     

The Americans With Disabilities Act: Does It Secure the Fundamental Right to Vote?

People with disabilities encounter substantial barriers to voting. Narrow interpretations by regulatory agencies and the courts indicate that the Americans With Disabilities Act will not be able to remove these barriers. Additional policies will be necessary to overcome the structural impediments to exercising the fundamental right to vote.     

Apartheid on Trial: South West Africa and the International Court of Justice, 1960–66

The deputation of Basuto chiefs to England in 1907 provides an example of close co-operation between traditional African chiefs, educated black activists, and white humanitarians in pursuing to the heart of empire the claims of Africans seeking remedy for injustices suffered under colonial rule. The deputation arrived at a time when the Colonial Office felt severely constrained in its ability to fulfil its responsibility of trusteeship towards its African subjects in colonies which were ‘on the eve of responsible government’. This article highlights the support provided in England by Frank Colenso, the son of Bishop Colenso of Natal, in partnership with his sisters in Natal, and argues that, though failing in its immediate aim, this black-led initiative led to a strengthening of relationships between black South African activists and white British-based humanitarians. It also provided an impetus for the development in England of a loosely knit informal organisational framework able to provide material, moral, and political support for South African political activists who were to visit England in deputations from the newly formed South African Native National Congress (forerunner of the ANC) to pursue their grievances against the South African government in the second and third decades of the twentieth century.     

In Defense of “Public Reason”: Supreme Court Justice William Johnson

For those of us who gravitate toward rebels and upstarts, Supreme Court Justice William Johnson has uncommon appeal, if only because he was the first member of the federal Bench to kick up his heels in a sustained, effective, and deliberate way. In 1954, Johnson's only biographer, Donald Morgan, proclaimed him “the first dissenter,” ¹ a force for democratization in the style of Thomas Jefferson and Andrew Jackson, the man who persuaded Chief Justice John Marshall to compromise on the question of unitary opinions and institutionalize (if not applaud) publication of concurring or dissenting departures from the majority's official reasoning.     

The 'Haves' and the 'Have Nots': An Empirical Study of the Rational Actor and Party Capability Hypotheses in the High Court 1948–99

The High Court has always played an important political and social role. However, recent debate over implied rights in the Constitution has brought judicial power into focus, making it an important topic for assessment. One framework that has been used to test judicial power in Canadian, English and United States appeal courts is the notion of party capability theory. This paper analyses reported and unreported decisions of the High Court since 1948 in light of party capability theory. It attempts to identify what impact (if any) both the experience and resources of the litigants has had on which parties win and lose on appeal over an extended period. The main conclusion is that there is little evidence to support the thesis that stronger parties persistently come out ahead.     

How Would Jesus Vote? The Churches and the Election of the Rudd Government

The Coalition's clear victory over Labor at the 2004 federal election after prominent campaigning by conservative church-based groups – along with the election to the Senate of a member of the Family First party – seemed to many commentators to confirm the growing power of a ‘Religious Right’ in Australia. This paper argues that two features of the 2007 federal election campaign are impossible to square with the rise of the Religious Right thesis. First, Labor won in 2007 without shifting its leadership, policies or electoral strategy to suit the Christian Right. Second, the contributions of church groups to the 2007 election campaign were not dominated by a single perspective but covered a wide range of issues and expressed competing views on key policy issues. This pluralism allowed Kevin Rudd, the Labor Party and even the Greens room to present themselves favourably to significant groups of Christian voters. The 2007 election suggests that, rather than being dominated by a hegemonic Christian Right, church involvement in Australian electoral politics is pluralistic in character.     

The “Weakened Spring of Government” and the Executive Branch: The Department of Justice in the Late 19th Century

Recent research on American government and public life in the late 19th century suggests that the extensive growth of the American state during this time did not necessarily involve a corresponding expansion of national authority or effective executive bureaucratic administration. Rather, the American polity was characterized by what Wallace Farnham termed the “weakened spring of government,rdquo; a government that “failed to use the powers it had.” This study examines how the late 19th century Department of Justice exemplified this problem. Despite increased personnel, resources, and responsibilities, effective law enforcement by the department was often frustrated by corruption, partisan political activity by department personnel, and by traditional reliance on local, decentralized responsibility for law enforcement. Examples of this were the attempts by the Justice Department to protect federal timber lands and enforce the federal election statutes in the south. Moreover reforms within the department were little more than “patchwork” efforts to achieve effective enforcement capacities.