An entrenched bill of rights : a protection for the rights of minorities

This paper is concerned with the question of whether Australia would be better served by the inclusion of an entrenched Bill of Rights in the Constitution of the Commonwealth of Australia. In particular, attention will focus on the abuses of minorities that are all but certain to arise in any society that is based on majoritarian rule. This paper will also examine the question of whether an entrenched Bill of Rights would serve as an effective safeguard against such abuses, especially where the rights of unpopular minorities are involved. The analysis to follow is undertaken against the backdrop of the efficacy, or the lack thereof, of the Constitution of the United States in preventing such abuses, and particularly that portion of the American Constitution that is known as the Bill of Rights.

Hollow avowals of human rights protection-time for an Australian federal bill of rights?

Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however, important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed - a federal bill of rights? In the course of this analysis the author makes suggestions for reform; specifically how a federal bill of rights may address the paucity of constitutional protection.

The common law principle of legality

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that '[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.' This development has occurred throughout the common law world most relevantly in New Zealand and the United Kingdom where its re-emergence coincided with the enactment of statutory bill of rights. It is however the aim of this article to outline the nature and scope of the principle of legality in contemporary Australian law.

Taking parliamentary sovereignty seriously within a Bill of Rights framework

The Victorian Government has made a commitment to consult with the community on how best to protect and promote human rights in Victoria. To this end, it has established a Human Rights Consultation Committee to undertake this consultation and to report on the desirability or otherwise of enacting a Bill of Rights. The government has, however, indicated its preference for a statutory Bill of Rights and one that preserves the 'sovereignty of Parliament'. This article takes those two government preferences as its baseline and then explores what might follow if the preservation of parliamentary sovereignty is taken seriously within a Victorian rights framework.

The principle of legality as clear statement rule: significance and problems

In Australia, the common law principle of legality has hardened into a strong clear statement rule that is applied when legislation engages common law rights and freedoms. It has transformed a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights. However, these developments are not without controversy or issue. The analysis undertaken in this article suggests that the principle of legality as clear statement rule -- as mandated by the High Court in Coco v The Queen -- can only work legitimately if Parliament has clear and prior notice of the rights and freedoms that it operates to protect. But it is problematic if what a common law right, such as freedom of speech, requires or guarantees in any given legislative context is unclear and contested, and so must be judicially divined at the point of application. In these cases, the principle operates to enforce a (post-legislative) judicial approximation of what best protects and promotes an abstract legal value or principle. It amounts to the illegitimate judicial remaking of prior legislative decisions on rights. This undercuts the normative justifications for the principle of legality as it obscures from Parliament the common law (rights) backdrop against which its legislation is enacted and interpreted.

Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.

Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context

The purpose of this article is to critically evaluate the existing capacity of Indigenous people to exercise succession rights against their estate. This article begins with a discussion of the sources of the general succession laws in Australia, noting that they have derived from UK law, where the common law notions of property, property rights and family, including the expectational right to succeed to property, are all important factors. These common law notions do not easily fit within the spectrum of Indigenous customary law. Generally, many Indigenous Australians will die without executing a valid will (ie, they die intestate) and it is here that this article undertakes an examination of the general intestacy laws in all Australian jurisdictions noting the inadequacy of the provisions to recognise Indigenous persons’ spiritual and cultural obligations to property, land or otherwise, together with a failure to distinguish extended Indigenous kinship relationships under Indigenous customary law. It is argued that Indigenous people who die intestate should be supported by a flexible and adaptive intestacy framework, responsive to the full customary and cultural responsibilities of the deceased, thus promoting an organic and developmental approach to succession entitlements.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

The status of flag desecration in Australian law

Law relating to the desecration of the Australian flag in a public place - the influence of the flag on Australia's culture and politics - whether flag desecration is a constitutionally protected political communication - the constitutionality of the Flags (Protection of Australian Flags) Amendment Bill 2008 - whether the treatment of flag desecration under Australian law is likely to change if and when a statutory bill of rights is enacted.

Mineral law and the doctrine of rights : a microscope of magnification?

The doctrine of rights has become part of private law jurisprudence. In this article the application of the doctrine in two decisions dealing with surface support in mineral law is examined. It is argued that the decision of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie, namely, that the right to surface support is an entitlement, is more correct than Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd in which it was decided that the right to surface support is a competence. It is submitted that depending on the legal location of the entitlement in the relationship between owner and miner of land one may simply refer to either an owner's entitlement to surface support or a miner's entitlement to undertake opencast-cast mining.