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.     

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

This article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in‐depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals’ human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.     

Sovereignty and inconvenience: The significance of Bentham's exasperation

This article explores the meaning of ‘inconvenience’ and ‘convenience’ in legal and philosophical reasoning. The argument is that such considerations were crucial in the practice of Australian courts in marking out the boundaries of judicial propriety in relation to parliamentary proceedings. This argument is made with recourse to usages of the terms in constitutional debates of the seventeenth century. The older meanings of these terns have now been lost to Australian constitutional law. Hence, I argue, the problem of the boundaries of judicial propriety must be the subject of broader or more theoretical considerations such that the political preferences of judges will be less capable of insulation from their judgments.     

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.     

High Court review 2003: the centenary year

2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal of Political Science.     

Towards a Democratic Bill of Rights

This paper examines two different bill of rights models for Australia: the Dialogue model and a Democratic model. The Dialogue model aims to protect rights through a bill of rights, strong political review mechanisms, intergovernmental dialogue, and rights-based judicial review. The paper argues that, despite its popularity, there are serious problems with the legitimacy and effectiveness of the Dialogue model and it outlines an alternative model, a ‘democratic bill of rights’, which attempts to avoid these problems by strengthening democratic institutions and political review mechanisms without adopting rights-based judicial review. The paper concludes that a democratic bill of rights is likely to be an effective and more democratically legitimate way of protecting and promoting human rights in Australia.     

Winding Back Australian Women's Rights: Conventions,Contradictions and Conflicts

Since 1996, Australia's Coalition government has been involved in winding back women's rights. It has diluted the role of the Sex Discrimination Commissioner, attempted to weaken the Sex Discrimination Act to allow for discrimination on the basis of marital status, and has refused to provide Australian women protection through the international realm via the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. In taking these steps, the government has not only placed rights in conflict against each other but has also been contradictory in its approach. The attempts to wind back women's rights demonstrate the fragility of existing rights protection measures in Australia more generally and suggest the need to consider alternative rights protection mechanisms such as sex equality guarantees in a bill of rights.     

The Voting Rights of Incarcerated Australian Citizens

Drawing on and combining political science and legal frameworks, this article explores the validity of disenfranchising Australian prisoners. The authors examine and critically assess the various arguments used in Australia by both legislators and High Court Justices to defend the practice of disenfranchisement. Such arguments are assessed against liberal democratic principles as well as jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. The authors show that in settings that entrench voting rights in the Constitution, any infringement attracts strict scrutiny from the courts. Courts insist that any abridgement of voting rights should serve a legitimate government purpose and be proportionate to that purpose. The arguments made for prisoner disenfranchisement by legislators in the Australian context invariably fail both parts of this test.     

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.     

Electoral redistricting and minority political representation in Canada and the United States

This article compares the political representation of visible minorities in Canada and the United States, focusing on differences in federal redistribution (redistricting) practices and constituency composition. Although the two countries both use territorially‐based electoral systems, they operate under different legal standards and institutional environments for the creation of ridings (districts). In the US, redistricting is a highly political process, yet must respect strict population equality standards. Litigation over redistricting is common, and courts adjudicate voting and representation under a constitutional system enforcing strong individual rights. In contrast, Canada's redistribution process is relatively nonpartisan, permits large population variances among ridings, places more emphasis on community rights, and is seldom subject to extensive court challenges. Despite these differences, the two countries exhibit striking similarities in the overall level of visible minority representation relative to population share. Conversely, Canada's population inequalities among ridings create a systematic disadvantage for visible minorities. Political attention to visible minority representation is stronger in the US, but the means to achieve it are constrained both by the judicial limits on group representation and the constitutional limits on the use of racial identity. Canada has a framework for political representation that could easily accommodate significant visible minority representation but lacks the political imperative to use it, in part because doing so would run counter to Canada's multicultural image of these groups as immigrants rather than as non‐white minorities.     

Constitutional democracy and civic nationalism

ABSTRACT. This article seeks to bring to the fore the intrinsic link between constitutional democracy and the civic nation, relying on Jürgen Habermas's theory of democracy. This theoretical framework will serve as the basis for a communicative understanding of civic nationalism, underscoring the notable role played by language. Attention will be given to the normative dimension that allows for the legitimisation of national divisions of a civic space bound by universal rights. The prime motivation behind this article is thus political‐philosophical, although empirical examples, drawn particularly from the French revolutionary discourse, will be brought to bear. And since a civic nation construed in communicative terms has necessary linguistic implications, cases of multilingual and multinational states will be examined.     

The Judicial Bookshelf

Standard nomenclature in Supreme Court literature contrasts the "old Court" and the "new Court" (or, sometimes, the "modern Court"). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial "irresistible force" (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the "immovable object" (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.     

An International Constitutional Court: Future Roles & Challenges

This article comprehensively examines the 1999 recommendation of the Tunisian government to create an International Constitutional Court that is designed to enhance the principles of democracy and human rights and to strengthen the constitutional doctrine which states that the people are the source of authority in a given country. This proposal, which was strongly advocated by former Tunisian President Mohamed Moncef Marzouki during his term in office, aims to underscore the importance of establishing an international judicial entity and analysing its bylaws with respect to its terms and conditions, formation, jurisdiction, and selection of judges. The article traces the trajectory of the movement, from the proposal stage to the latest developments in formally establishing the international judicial entity. Finally, the article identifies various possible difficulties and challenges that are likely to stand in the way of implementing the proposal.     

Indigenous biocultural rights and the Blue Mountains: Local and international policy challenges

Indigenous knowledges play a critical role in addressing the environmental crisis, and the United Nations system has adopted a suite of international treaties to protect and strengthen Indigenous peoples’ rights, which are often described as biocultural rights. Because World Heritage Areas are nominated and monitored by UNESCO, an initial hypothesis in this study was that such areas would be subject to higher than normal standards in regard to Indigenous people’s biocultural rights. By reference to the Greater Blue Mountains World Heritage Area, Australia, this research examined how the international legislative framework influences conservation practices. We held semi-structured interviews with conservation and Indigenous local experts and compared park management practices in the Area against those used in an Indigenous Protected Area. Findings align with the literature and suggest that Indigenous and scientific knowledge systems can generate new insights for the Area and other sites. Yet, Indigenous knowledges are only marginally applied in practice. Some barriers to full participation of Indigenous people are specific to the colonial history of the area. Yet, findings point to a lack of action by Australian governments and UNESCO, and that needs to be redressed. The study calls attention to the need to support and resource Indigenous people to enable collaborative partnerships to yield significant benefits for biodiversity and protection of Country.     

(Post)Colonial [1] Encounters: gendered racialisations in Australian courtrooms [2]

This article identifies how the Australian legal system has generated knowledge about ‘traditional’ gender relations in Aboriginal Australia. Using a sample of artefact cases from the Australian judicial system, constructions of Aboriginal gender relations are mapped. By tracing knowledge production in these cases, it demonstrates how the non-Aboriginal Australian legal system has fabricated its own versions of ‘Aboriginal Customary Laws’, or Aboriginal ‘traditions’ about violence committed by Aboriginal men, against Aboriginal women. (Post)colonial understandings about the Aboriginal ‘other’ have occupied spaces in legal understandings and then been enforced in law. The Australian judicial system itself is therefore guilty of perpetuating and privileging the ‘colonial’ in these encounters.     

论清末东北宪政改革的特点

以实施宪政为中心的政治改革是清末东北政治现代化的重要特征。具体表现在 :一是通过官制改革调整了地方行政机构 ,加强了地方公署对边疆的控制 ,为东北实施宪政铺平了道路。二是把司法独立作为实施宪政的关键 ,完善了近代地方司法体系。三是以地方自治为实施宪政的基础 ,促进了东北近代民主运动的发展。四是以谘议局为实施宪政的后盾 ,扩大了谘议局参政的深度和广度 ,并充分利用谘议局与商会的特殊关系 ,使公署、谘议局、商会形成一个有机体 ,从而东北的宪政改革得以顺利进行。     

Beyond “unwinding”: Constitutional review strategies in consociations

This article contributes to the emerging literature on the role of constitutional courts in consociational democracies. While most works have approached the topic from the perspective of regime dynamics, this analysis focuses on how courts relate to the constitutions they are mandated to enforce. Beyond addressing the empirical question of what choices courts make in their balancing between universal values and stability, this article also investigates how courts do this balancing. Through the analysis of seven cases from two consociations, Bosnia and Herzegovina and Northern Ireland, I argue that courts embrace specific interpretive approaches (proportionality analysis, purposive interpretation, and the political question doctrine) to reconcile the ideas of constitutional supremacy and respect for political agreements. The analysis also demonstrates how—by their nature political—framework agreements establishing consociational settlements become primary reference points for interpreting constitutional documents.     

Dispelling myths about conventions: ministerial advisers and parliamentary committees

There is a tension between a key principle underpinning liberal democratic governments and the associated political practice. Responsible government demands that the Executive is responsible to the Legislature. Governments, however, are generally inclined to evade or limit their accountability to Parliament wherever possible. In addition, ministerial advisers have thus far been excluded from the accountability framework of responsible government. This has led to an accountability deficit in terms of ministerial advisers appearing before parliamentary committees. Indeed, Ministers in the Australian Commonwealth and State of Victoria have claimed that there is a constitutional convention that ministerial advisers do not appear before parliamentary committees. This article challenges this claim and argues that there are no strong grounds based on precedent, reason, and the beliefs of political participants to conclude that there is a constitutional convention preventing ministerial advisers from appearing before parliamentary committees.     

Theory and the analysis of Australian politics

Sharman's 1989 APSA Presidential Address is a welcome critique of the interpretation of Australian politics, but the questions that it raises need to be taken further. The importance of Australian political experience in the formation of an indigenous political tradition is recognised, but it is misleading to see it as stemming from the desire to limit executive power. This article explores the nature of this indigenous governmental tradition, and goes on to consider what we learn from this debate about the nature of constitutional theory, and the relationship of academic debate to constitutional models.     

Land Tenures as Policy Instruments: Transitions on Cape York Peninsula

Over the last four decades, Australia's most remote marginal lands have provided an expansive space towards realisation of emergent national goals, involving recognition of Aboriginal land rights together with protection of ‘wilderness’ and semi‐natural ecosystems. This has been achieved by the revival of land tenures as instruments for the delivery of public policy, requiring innovative federal and state legislation, often driven by judicial determinations. More so than any other bioregion, Cape York Peninsula has experienced radical shifts in landownership, land titles, and property rights, reflecting its pivotal role as an arena in which emerging national goals are contested. The most immediately visible evidence of these changes is depicted in the tenure maps for 1970, 1990, and 2010. However, these maps provide an incomplete account of tenure changes, including new titles such as non‐transferable communal freehold and common‐law recognition of traditional native title, requiring belated responses by state and federal governments. The three benchmark maps provide a starting point for an examination of the currently resurrected role of land titles and land rights as policy instruments. The time‐specific attributes of each tenure category are discussed and linked to the policies underpinning each tenure and to the communities, political constituencies, resources, enterprises, and national values engaged with each tenure. Land titles and land rights are pivotal in political contests about regional futures, with the peninsula acting as a crucible in shaping wider national directions.