• Selected
• Entire List

Abstract:
This article is concerned with the constitutional protection given to property holdings by the Australian Commonwealth Constitution. By explicitly conferring power to make laws with respect to the acquisition of property, section 51(xxxi) resolves any doubt that the Commonwealth Parliament's other substantive heads of power might not authorize laws with respect to the acquisition of property. However, the real significance of section 51(xxxi) lies not in the extent to which it enlarges the Commonwealth's legislative power but in the extent to which it limits it. One of the great challenges for section 51(xxxi) jurisprudence is to deliver a coherent and principled account of why some laws that effect an acquisition of property do not attract the obligation to provide just terms. The High Court's recent decision in Airservices Australia v. Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76, demonstrates that the Court's approach is confused and unsatisfactory. A new approach to this aspect of section 51(xxxi) is urgently required. This article suggests that the High Court begin to identify more explicitly the objects of section 51(xxxi) and recognize that property serves private and public functions. Only by doing so can a balance be struck in a principled and predictable manner.

Constitutional law, Constitution, Australia, acquisition of property, eminent domain, just terms, just compensation, nature of property, public and private functions of property, balancing, Airservices case (Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76)

Abstract:
In this article I propose and evaluate two mechanisms for improving the protection of human rights in parliamentary systems. I do so in the context of contemporary arguments that legislatures rather than courts should be primarily responsible for decisions about human rights, in the context of acknowledged weaknesses in existing legislative and prelegislative mechanisms for protecting human rights, and with particular reference to Australia (where only one jurisdiction has adopted a Bill of Rights).

The mechanisms that I propose focus on enhancing the consideration of human rights issues during the process that leads up to the enactment of legislation. They are, first, a requirement that executive agencies prepare human rights impact statements (modelled on their existing regulatory impact statements) in relation to all significant policy proposals, and, second, that an independent executive agency review the quality of these statements. These mechanisms have two principal objectives. First, they aim to formalise and integrate human rights analysis with the process of developing policy options, rather than to have human rights analysis carried out almost at the end of the policy development process when legislation is ready to be introduced into parliament. And, second, through the provision of independent scrutiny, they aim to ensure that the parliament has the benefit of an appropriately reasoned analysis of the human rights impact of proposed legislation, and not just a perfunctory certification that the legislation is (or is not) compatible with human rights or a low quality analysis of human rights issues prepared as an afterthought by an executive agency that is focused on its 'core business.'

Neither a requirement that policy makers prepare human rights impact statements or a requirement that human rights impact statements be scrutinized by an independent executive agency will establish a culture of human rights in Australian government. That depends on a commitment from the Executive to human rights as a yardstick by which government action is to be evaluated. However, the two mechanisms that I propose here can be important signals of the Executive's commitment to human rights. They are a logical extension of the existing commitment to evidence-based policy making. They do not disrupt existing institutional responsibilities and competences. They are designed to cultivate a practice of human rights interpretation and analysis in the executive and to facilitate human rights interpretation and analysis in general. They therefore have the potential to further the fundamental democratic objective of assisting Australian legislatures to make their own assessment of the human rights impact of the governments' proposals.

human rights, legislation, policy

Abstract:
Parliaments play an essential yet under-explored role in the protection and undermining of human rights. Both theoretical and political debate have emphasised the importance of the role of parliament, and academics such as Jeremy Waldron have defended legislatures as capable of playing a sophisticated role in applying rights to particular circumstances. In this paper we set out a methodology for testing the claims that parliaments are capable of protecting human rights. We also critically analyze some of the common methods utilized for measuring rights, in part by reference to developments in rights theory. This paper is part of a wider project on parliaments and human rights in Australia. Australia is a particularly important testing ground for such theories as, despite a public commitment by its leadership to human rights, it has no formal bill of rights and thus little by way of judicial review of rights.

human rights, australia

Abstract:
Section 51(xxxi) of the Australian Constitution operates as one of the few rights-protecting provisions in the Constitution. It is framed as a grant of power to the Commonwealth Parliament that enables it to make laws with respect to the compulsory acquisition of property on just terms. However, it has been interpreted as a constitutional guarantee that withdraws from the Commonwealth Parliament any powers it might have had to make laws with respect to the acquisition of property other than on just terms.

Unfortunately, the proper interpretation of s 51(xxxi) is unclear and contested and in some areas is close to incoherent. I argue in this Chapter that the complexity and contestedness is probably inevitable. Constitutional property clauses such as s 51(xxxi) attempt to mediate the perennial, and irreducibly moral, conflict between the need for stability of entitlements, on the one hand, and the need for flexibility and modification of entitlements in light of changed circumstances, on the other. The spare text of such clauses provides no secure criteria for resolving the conflict and the moral principles which might be called in aid are deeply contested.

Most of the High Court's options for dealing with s 51(xxxi) are unappealing. However, there may be a way forward in an interpretive approach that directly recognises the primacy of political institutions in resolving the conflict between stability and flexibility, coupled with measures that increase the capacity of those institutions to address property rights issues.

Australia, Constitution, section 51(xxxi), property, Commonwealth, parliament, constitutional law, property rights, acquisition of property, on just terms

Abstract:
The paper argues for reform in the process by which members of the Australian judiciary are selected. In advocating reform we do not suggest that the appointment process to date has failed. Measured in historical and international terms the Australian judiciary is acknowledged to be of outstanding quality which has enjoyed the public's confidence. Rather, we advocate reform in order to ensure two things. First, that the judiciary retains the independence that is essential for it to discharge its constitutional functions. And, second, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society.

We recommend that Australia adopt a process for judicial appointments that is based on the process recently established for England and Wales under the Constitution Reform Act 2005 (UK). Appointments would continue to be made by the executive. Judicial Appointments Commissions (consisting of three judicial members, three legal members and three non legal members - including the Chair) would recommend three names to the executive from which the appointment must be made. The Commissions' recommendations would be the culmination of an evidence-based process involving applications, references, interviews and in some cases practical assessment of relevant skills.

reform, judiciary, judge, australia, appointment

Abstract:
No abstract available.

Abstract:
Implied freedom of political communication - prohibition on the use of threatening, abusive, or insulting words to any person in or near a public place - interpretation - scope of implied freedom - deference to legislature - prohibition of incivility or intimidation as a legitimate legislative end.

Abstract:
On 14 November 2006, the High Court handed down its decision in New South Wales v Commonwealth (2006) 156 IR 1; 81 ALJR 34; [2006] HCA 52 (Work Choices case). The decision was eagerly anticipated, both for its potential to affect federal government policy on industrial relations, and for its bearing on constitutional law. This commentary explains the substance of the decision and explores its implications, with frequent reference to paragraphs (eg [142]) of the judgment which is reproduced in its entirety later in this work.

Part 1 of the commentary summarises the facts of the case, the issues that arose for decision and the reasoning that led the majority and the two dissenting judges to their conclusions.

Part 2 explores the constitutional dimensions of the decision, including its importance for establishing the reach of Commonwealth powers and for federalism in Australia, its approach to constitutional interpretation, and its engagement with principles of the rule of law.

Part 3 examines the impact of the decision on industrial relations and labour law in Australia, particularly the uncertain reach of the new legislation, how it bears on practical workplace issues such as rights of entry, and what the Work Choices decision means for the future of labour regulation in Australia.

workchoices, Australia, industrial relations, constitution, implications