A Federal Human Rights Act and the Reshaping of Australian Constitutional Law

Abstract:     
In this article, I will engage in an exercise of crystal ball gazing regarding the future shaping of Australian constitutional law, on the assumption that a statutory HRA does come into existence. The thrust of this article is to look at how the character of Australian constitutional law will likely be affected or reshaped by the impact of a HRA embodying the key recommendations emanating from the NHRC’s Report. I will focus on two main classes of case which are areas of particular interest when a HRA comes into effect. The first class relates to those cases in which the validity of an impugned federal enactment involves the operation of the characterisation process and the scope of the external affairs power, while the second class relates to those cases in which it is asserted that there is a contravention of a constitutional limitation, whether express or implied. In regard to the second class of cases, the concept of ‘proportionality’ and the various contexts in which the concept is applicable will be considered. I will also examine the significance of Chapter III of the Commonwealth Constitution to the proposed ‘declaration of incompatibility’ mechanism and consider how a HRA will impact on Australia’s system of parliamentary democracy.

I have chosen to focus on the two main classes of cases because a challenge to an impugned piece of legislation on the ground that it contradicts the HRA will in the first place cast the spotlight on the constitutional validity of the HRA itself. The Commonwealth Parliament, being a Parliament of enumerated powers or of limited competence, requires the HRA to be ‘characterised’ as a law within one or more of the heads of power under section 51 of the Commonwealth Constitution. As the HRA seeks to give effect to an international instrument, the ‘external affairs’ power in section 51(xxix) will be invoked as the main constitutional source of law-making authority to justify its validity. Once the issue of the constitutionality of the HRA is dealt with, the second class of cases relate to the use of the HRA as a yardstick to determine the validity of the impugned legislation and, in this connection,the principle of ‘proportionality’ is invoked as the key test of validity. In my exegesis on this principle, my main aim is to show that the High Court is conversant with the use of this principle in constitutional adjudication, as illustrated especially by the application of this principle in constitutional challenges based on the implied freedom of political communication. I will also examine the use of Chapter III of the Commonwealth Constitution as the ‘declaration of incompatibility’ mechanism is a novel feature of the HRA and its constitutional validity will undoubtedly be challenged.

Number of Pages in PDF File: 23

Keywords: Constitution, External Affairs Power, Federal Human Rights Act, Characterisation Process, Proportionality

JEL Classification: K00, K10, K19, K20, K29, K30, K39, L40, K49

Accepted Paper Series