2.b) The Australian Constitution: the protection of rights

effectiveness of separation of powers to protect human rights*

*doesnt really exist in Australia -in theory, separates to avoid abuses of power

implied rights

-An implied right is a protection that the High Court finds is suggested or intended by the Constitution without it being explicitly stated in any section -The High Court finds the right to be implied by reading two or more sections together and deriving meaning from them -The Constitution includes only one implied right: 'the right to freedom of political communication (on political matters)' -The High Court decided that representative democracy is constitutionally entrenched, under s.7 and s.24 (parliament directly chosen by the people) of the Constitution. Thus freedom of public discussion of political matters is essential to allow the people to make political judgements and effectively exercise their right to vote.

result/implications of the Political advertising case

-As a result of this case, the Commonwealth cannot legislate in such a way that restricts the free communication of political content, on matters of which the average, intelligent, politically-aware voter would rely to cast an informed vote -The implied right was expanded to be a defence in defamation claims, allowing us to freely criticise the performance of politicians. This was held in the Theophanous v Herald and Weekly Times (1994) case -The result of this case did not, however, create a right to free speech in general, the implied right to freedom of political communication does not permit all 'political' speech -A law punishing those that encourage violence against the Commonwealth restricts free speech on political issues. However, according to the High Court, this is an acceptable restriction on political communication as it protects the system of representative democracy -This qualification on the implied right was reflected in the Rabelais case, in which a Latrobe University student newspaper publication instructing students on 'How to Shoplift' (which had been banned by censors) was deemed on appeal not to qualify as political communication (rather it undermined the system of representative government by encouraging lawlessness)

Canada's protection of rights: PRE-LEGISLATIVE SCRUTINY

-Before Bills are passed by parliament in Canada, the minister for justice must certify that they do not infringe the Charter -In addition, each house of parliament has a standing committee that scrutinises Bills. The committees can hold public meetings and invite public comment on the possible impact of the Bill. -This scrutiny by committee is similar to the process in Australia.

Canada's constitutional protection of rights

-Canada has a federal system of government, with a central federal parliament and government, 10 provinces each with its own unicameral legislature, and three territories, which derive their power from the federal parliament. -The Canadian Charter of Rights and Freedoms was adopted in 1982 under the Constitution Act and it sets out an extensive list of express rights. This applies throughout all the provinces and territories of Canada. -Written in simple, straightforward language, the Charter sets out fundamental freedoms and classifies express rights into the categories of democratic, mobility, legal, equality and language rights.

Canada: same sex marriage

-In 2003 the case of Halpen et al. v. The Attorney-General of Canada was brought before the High Court by seven gay couples seeking marriage licences from the City of Toronto -The federal marriage laws did not define marriage, but relied on the common law position that was set out in the English case of Hyde v. Hyde (1866), which defined marriage as 'the voluntary union for life of one man and one woman, to the exclusion of all others' -The Ontario High Court held that this exclusion of same-sex couples from civil marriage infringed the right to equality guaranteed by the Canadian Charter of Rights and Freedoms. -Following this decision, marriage ceremonies for same-sex couples became legal in the province of Ontario. Eventually the Canadian federal government amended the marriage laws to include same-sex marriages -In 2004, a draft Bill was submitted to the Canadian Supreme Court which held that the Bill was constitutionally valid. The Bill confirmed the right of same-sex couples to marry but exempted religious officials from having to perform same-sex marriages when they are contrary to their beliefs. -The Supreme Court held that this exemption was valid because of the guaranteed right to freedom of religion contained in the Charter. In July 2005, the Canadian Parliament passed legislation recognising same-sex marriage.

weaknesses of Canada's approach

-Parliament can override decisions of the court declaring that a right has been infringed by legislation (except democratic and mobility rights) thereby limiting the protection available through the principle of separation of powers. Rights contained in the Charter are difficult to change - a referendum must be passed. Rights contained in the Charter can be interpreted narrowly and therefore cause injustices

Canada and Australia similarities

-Rights are entrenched (Canadian Charter, and Australian Constitution) some rights are similar e.g. freedom of religion. -Rights can only be removed, changed or added via a successful referendum -Parliamentary committees (and Minister for Justice in Canada) assist in pre-legislative scrutiny of Bills to determine their compliance with protected rights. (In Australia the committees report to parliament with a statement of compatibility) -Individuals and groups can bring a complaint that an Act infringes their rights set out in the Constitution/Charter. The person bringing the action must be directly affected by the infringement of rights -The Supreme/High Court can find a section of an Act is unconstitutional because it contravenes one of the express rights and therefore the relevant section of the Act is inoperable. Parliament can amend the offending Act. -In Canada: Democratic, mobility and language rights are fully enforceable by the courts; parliament cannot override that ruling that legislation infringes express rights. The rights protected by the Constitution are fully enforceable by the courts, and parliament cannot override a High Court ruling relating to these rights.

express rights

-There are 5 express rights found in the Constitution that are enumerated (explicitly written) into the Constitution to protect human rights -These rights are entrenched because they cannot be changed or removed without following the process outlined in s128 (i.e. a successful referendum) -Express rights cannot be changed or removed by the Commonwealth Parliament, and Australian parliaments cannot pass laws which conflict with these express rights -Express rights do not provide uniform rights protection: limitations exist on these rights -tend to restrict the law-making powers of the commonwealth, rather than serving the specific purpose of rights protection

weaknesses of Australia's approach*

-Rights contained in the constitution are difficult to change due to the referendum process. Rights may lag behind when attitudes change and technology advances with time. -Very few rights are protected under the Constitution. -The rights that are protected are limited in scope; for example, many rights only apply to the Commonwealth Parliament and not the state parliaments, and some rights are narrow, (e.g. trial by jury) -The needs of minority groups may not be heard by the government and may not be catered for without a bill of rights. -Using common law as a means of protecting rights depends on a case coming before the courts, which is expensive and time-consuming. -The complaints-based approach to rights protection means that the High Court cannot declare an infringement of rights and the offending legislation to be invalid unless a case is brought before the court. -If rights were protected under a bill of rights contained in the Constitution, the courts would be called on to interpret the rights contained in the bill of rights, giving the judiciary more power and making the High Court justices the final arbiters of what rights should exist in society rather than the parliament, which is elected by the people.

Canada's protection of rights: EXPRESS RIGHTS

-The Canadian Charter of Rights and Freedoms is entrenched within the Canadian Constitution Act 1982 in the same way that rights are entrenched within the Constitution in Australia -However, the list of express rights in Canada is much more extensive -The Charter protects individuals from violations of their human rights and fundamental freedoms by acting as a restriction on governments and parliaments, their actions and laws -Its provisions apply to the federal parliament and the legislature of each province and territory.

Australia's constitutional approach to the protection of rights

-The Commonwealth Constitution protects very few rights, and the process of changing the Constitution to include more rights is very difficult because it would require a successful referendum (s.128) (extremely difficult to achieve) -Many would argue that the rights of Australians are already protected by a series of Acts of parliament, such as the Sex Discrimination Act 1984 (Cth). -It is more likely that a bill of rights would be included in an Act of parliament that could be changed by parliament -In a democratic society, individuals who feel their rights are not protected by the law can try to influence the government to introduce a change in the law. If enough people support them, it is likely changes will occur, however the needs of minority groups are often not heard. All groups of people could be given more protection under a bill of rights. -It has been suggested that Australia no longer needs a bill of rights because the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires all proposed legislation to be checked for compatibility with human rights, according to various international treaties (eg UN declaration of human rights). However, the parliament can choose to ignore suggestions that a proposed Act of parliament will contravene a human right.

strengths of Australia's approach

-The express, implied rights and structural protections in the Constitution are enforceable through the High Court. Any section of legislation that is found to be outside the power of the parliament under the Constitution is immediately inoperable to the extent of the section that is found to be ultra vires (outside the power). -Express rights cannot be changed unless through a referendum; that is, with the support of the community. Section 128 means that it is hard to remove the rights that are protected under the Constitution and new rights can be added by a successful referendum. -The implied right of freedom of political communication has been found to be contained in the Constitution, showing that implied rights can be declared and clarified by the High Court when needed to preserve justice. -The Constitution offers structural protection of rights in that there must be a responsible government answerable to the lower house, there must be a representative government that can be voted out of office if it does not listen to the wishes of the people, there is contained in the Constitution a limited right to vote, the separation of powers provides an independent High Court that is the final arbiter on government actions and abuse of power, and the Crown provides the ultimate safety check on the operation of the government. -Statutory protections (e.g. the Racial Discrimination Act, Sex Discrimination Act) protect human rights. Leaving most rights to the legislators to protect means that they can be changed easily as the need arises. (Note: rights-protection is not he role of the Constitution) -The courts can interpret legislation and the Constitution in a timely fashion as the need arises to avoid injustices.

Canada's protection of rights: CHANGING THE CHARTER

-The procedure for amending the Canadian Charter of Rights and Freedoms is similar to the process for amending the Constitution in Australia -The proposal must be passed by parliament, and then passed at a referendum that achieves a 'yes' vote from 50 per cent of the population and a majority in two- thirds of the provinces.

Canada and Australia differences

-The rights that are given structural protection under the Australian Commonwealth Constitution are expressly guaranteed under the Canadian Charter of Rights and Freedoms. Section 3 of the Charter guarantees the right to vote for all its citizens The Australian Constitution offers structural protection of rights in that there must be a representative government, which indirectly protects the citizens' rights to vote -Canada's list of express rights is extensive, and is contained in a bill of rights. Australia has only five protected rights specified in the Constitution (which are scattered throughout the Constitution), plus the right to freedom of political communication, which the High Court has implied from the Constitution -Canadian rights (except democratic, mobility and language rights) are limited as S.33 of the Charter permits parliament legislate with intent to override a right protected in the Charter (sunset clause). In Australia none of the express rights can be overridden by parliament. -The Canadian Charter provides that parliament can limit the rights protected under the Charter when it is 'demonstrably justified in a free and democratic society' (S.1). There is no similar limitation in Australia's Constitution -In addition to declaring legislation invalid, Canada's Supreme Court can make another appropriate remedy, such as an award of damages, where rights have been infringed. Australia's High Court's approach has been to declare legislation valid or invalid. -In a Canadian trial, a court can exclude evidence that has been obtained in violation of the Charter. Australia does not have a similar provision. -The Canadian Supreme Court can provide parliament with advisory opinions on whether proposed legislation will infringe the Charter. Dialogue is encouraged between the parliament and the courts. The Australian High Court will not give advisory opinions, but will only consider a legal issue when it is brought before it by parties seeking to have a dispute resolved. -In Canada, the principle of separation of powers is limited. The Senate is chosen by members of the House of Commons. Other than democratic and mobility rights, parliament can override decisions of the court that declare legislation to contravene a right provided under the Charter. Australian citizens are protected by the principle of separation of powers. The High Court is an independent body and can declare an Act of parliament invalid if it contravenes rights protected in the Constitution -The Canadian Charter applies to both provincial/ territorial parliaments as well as the federal parliament. -Protected rights in the Constitution apply predominantly to the Commonwealth Parliament

The right to receive just terms when property is acquired by the Commonwealth - s51 (xxxi)

-This right acknowledges that it is sometimes necessary for the Commonwealth to take ownership of private property to exercise specific powers (s.51) e.g. to expand a military facility -If the Commonwealth exercises its power to compulsorily acquire property then the individual has the right to receive just terms (i.e. fair payment) in compensation Note: states are not required to offer just terms if/when they acquire property

Freedom of interstate trade and commerce (s.92)

-This right is designed to ensure that businesses can trade with consumers and businesses in other states without restrictions -This right acts more as a structural underpinning of the economy, to prevent interference in economic activity, rather than a fundamental human right to freedom of movement (which exists in the Canadian Charter of Rights and Freedoms, for example) -The application and meaning of this right has changed over time: prior to 1988 it tended to provide for individual/personal movement between states. Nowadays it is more a general right to free trade between states, supporting free movement of goods and services

Limited freedom of religion (s.116)

-This right prevents the Commonwealth from passing laws that restrict religious choice, in four clear ways: 1. The Commonwealth cannot establish a religion 2. The Commonwealth cannot ban a religion 3. The Commonwealth cannot restrict free practice of a religion 4. The Commonwealth cannot force people to follow a particular religious observance -The High Court has also decided that this right extends to the right of a person not to have a religion. -Limitations also exist on this right, for instance, it is possible for the Commonwealth to indirectly limit free exercise of a religion if they have legitimate primary reason for doing so. For example, if practicing a certain religion endangers public safety

The right not to be discriminated against on the basis of out-of-state residence (s.117)

-This right prohibits the law in one state from placing a restriction or burden on a resident from another state, when that restriction or burden doesn't apply to the people from the home state as well -The primary purpose of a law cannot be to discriminate against someone because they do not live in that state -This does not apply to non-state residents being unable to vote in state elections. -However, states may grant certain welfare benefits to their own residents and not others, as this does not burden other residents

The right to trial by jury when tried on indictment for a Commonwealth offence (s.80)

-Trial by jury (one's peers) is recognised as an important human right. -This ensures suspects are treated fairly, provides a check on the power of the government, and helps to include citizens in court processes/the criminal justice system to ensure that our laws remain acceptable to the community -Although s.80 provides for this right, a number of significant limitations exist: 1. Most criminal offences are created by state laws, since criminal law is a residual power. Therefore, s80 only guarantees a trial by jury under commonwealth legislation. 2. According to Brown v Queen 1986, the defendant does not have the power to waive this right (have a trial without a jury)

Canada's protection of rights: LIMITATION OF RIGHTS

-Under S.1 (known as the limitation cause or the responsible limits clause) parliament can limit the rights protected by the Charter where the limit 'can be demonstrably justified in a free and democratic society' -For example, in the case of R v. Sharpe (2001), the Supreme Court had to decide whether legislation banning possession of child pornography infringed the right to free expression. -The court found there was evidence establishing a link between harm to children and possessing child pornography, and accordingly the limitation on free speech was justified. (Note: S.1 has also been used to uphold laws against hate speech and obscenity)

effectiveness of representative government to protect human rights*

-acts passed by parliament reflect views of community -must reflect public views in order to maintain seat in parliament

how the constitution protects rights

Australia is the only Western nation that does not have a national bill of rights. Instead, the Constitution protects human rights of Australians in three ways: o express rights o implied rights o structural protections note: the role of the constitution is to divide law-making powers, not to protect human rights

The Political Advertising Case

Australian Capital Television v Commonwealth (1992) -In 1991 the Commonwealth passed the Political Broadcast and Political Disclosures Act. This banned most political advertising (on radio and television) in the six months of campaigning before a federal, state or local government election*, and allocated fixed advertising time to existing members of parliament only -Thus parties/individuals who did not already have seats in parliament were restricted from campaigning fully, and interested parties (i.e unions and lobby groups) were unable to fully publicise their opinions on issues -Australian Capital Television (a television broadcaster with standing) challenged the Constitutional validity of this Act, arguing that it conflicted with the implied right to freedom of political communication -The High Court decided that the Constitution expressly establishes a democratic system, by creating a system of representative government (prescribed in ss. 7 and 24 requiring that members of parliament by directly chosen by the people) In order to elect a parliament that is truly representative, the people needed free political communication to cast an informed vote -The relevant section of the Political Broadcast and Political Disclosures Act was therefore declared invalid to the extent that it interfered with the Constitutionally implied freedom to speak about political issues

separation of powers

CHI,II,III* -three main functions to be performed within a legal and political system to ensure the effective operation of the country -doctrine of the separation of powers states that 3 different types of authority held by the Commonwealth must be exercised by different bodies and kept independent 1. Legislative function (make the law) 2. Executive function (administer the law) 3. Judicial Power (interpret the law) In order to prevent abuses of power and corruption: -no one body holds absolute power -no one branch can interfere with the operation of another branch -provides a check and balance on authority

Canada's protection of rights: ENFORCEMENT OF RIGHTS

COMPLAINTS-BASED APPROACH -Under S.24 of the Charter, anyone whose rights or freedoms have been infringed/ denied may apply to a court for a remedy -The Charter can be interpreted by the courts (with the Supreme Court of Canada being the ultimate authority) to determine whether there has been an infringement of rights and freedoms. -Courts must have consideration for the recognition of the rights of Indigenous Canadians (i.e Indian, Inuit and Metis groups), gender equality, and protection of multicultural character. -Under s.52 of the Canadian Constitution, legislation that infringes the Charter can be declared invalid by the courts. Similar to a declaration of invalidity in Australia, the federal parliament cannot overrule the court's judgement OVERRIDING PROVISION -Under s.33 (known as the override or notwithstanding clause) the Canadian Charter permits parliaments (federal/ provincial/ territorial) to legislate with a clear intent to override a specific right protected in the Charter, allowing parliaments to make some of their laws temporarily immune from judicial review under the Charter -This overriding provision lasts five years (sunset clause), after which time the legislation must be passed again (general elections must be held at least every five years). -There are some exceptions to this ability of parliament to override rights protected in the Charter: 1. Parliament cannot override democratic rights (the right to vote), mobility rights (the right to travel into and out of, and within, Canada) or language rights. -By prohibiting parliament from overriding democratic, mobility and language rights, the Charter achieves a compromise between parliamentary sovereignty and judicial supremacy when it comes to the protection of rights 2. A Canadian government that wishes to override the Charter may experience political difficulties. For example, in R v. Morgentaler (1988), the Supreme Court struck down legislation that regulated abortion as it infringed the right to 'life, liberty and security of person'. In obiter, the court added that a less restrictive abortion law could possibly be upheld. -The override power has been used only rarely, and never by the federal parliament REMEDIES WHERE RIGHTS ARE INFRINGED -When legislation has been declared invalid, the Supreme Court can temporarily suspend an order to strike down legislation allowing parliament time to amend the legislation to make it compatible with the Charter -In addition to declaring legislation invalid, the court can make another appropriate remedy, where rights have been infringed. The court can: • read down (narrowly interpret) the impact of legislation to bring its operation within the boundaries set by the Charter • make an appropriate remedy, (i.e award damages under S24(1)) • exclude evidence in a criminal or civil case that has been obtained in violation of the Charter S.24(2).

human rights

Human rights can be defined as privileges that all individuals possess. Benefits or freedoms that are deemed necessary for our wellbeing and human dignity.

strengths of Canada's approach

It provides a long list of rights for the protection of Canadians, including rights covered under structural protection in Australia. Rights cannot be changed without a referendum - they are entrenched in the Constitution. Legislation that infringes the Charter can be declared invalid (although this declaration can be overridden, other than democratic, mobility and language rights). Before legislation is passed, the minister for justice will check that no rights are infringed. Remedies are provided by the courts if rights have been infringed. The courts are able to give advisory opinions to the legislators.

representative government

Representative government, is a fundamental principle of our parliamentary system. The people elect representatives to parliament to govern on their behalf, and those members of parliament will reflect the values and views of the majority. The Constitution creates the system of representative government in ss. 7 and 24, as those sections require that the Senate and House of Representatives shall be directly chosen by the people. The principle of representative government protects human rights in two main ways: 1. Because elected members of parliament want to be re-elected, they will listen to what the public want. This leads to the passage of bills that protect the rights of those citizens/voters, such as the Sex Discrimination Act, and the Racial Discrimination Act 2. Fear of losing office will discourage parliament from passing laws in violation of the rights of voters. We can question the extent to which parliament is truly representative in this country, as we still lack marriage equality law

Canada's protection of rights: STRUCTURAL PROTECTIONS

SEPARATION OF POWERS: -The principle of separation of powers is limited in Canada. As in Australia, the legislative and the executive branches are combined. -Members of the House of Commons (lower house) are elected by the people. The members of the Canadian Senate are recommended by the prime minister and appointed by the governor-general. Their appointment is for life or until they reach the age of 75. -The Supreme Court of Canada is a separate body and anyone whose rights or freedoms have been infringed or denied may apply to a court (of competent jurisdiction) to obtain a remedy. -However, only democratic rights and mobility rights are fully enforceable by the courts. Other rights in the charter can be overridden by an Act of parliament. The principle of separation of powers therefore provides less protection in Canada than in Australia. -In Canada, dialogue or discussion is encouraged between the parliament and the courts so that the parliament can seek advisory opinions from the Canadian Supreme Court and determine whether legislation is likely to infringe any of the rights protected in the Charter REPRESENTATIVE GOVERNMENT: -The Canadian Charter of Rights and Freedoms contains provisions for representative government which protect the rights of the public -S. 2 of the Charter provides everyone with the general right to free speech. -S. 3 of the Charter guarantees the right to vote for all its citizens.

effectiveness of implied rights to protect human rights

STRENGTHS -The High Court is able to discover further implied rights so it isn't limited by the words of the Constitution -The constitution can be interpreted broadly to extend to a wide variety of circumstances -Parliament cannot legislate in conflict to implied rights, thus constitutionally protecting the rights of the public WEAKNESSES -The High Court can only discover further implied rights when an appropriate test case comes before the court -The High Court (unelected and thus unrepresentative) can effectively change implied rights and structural protections (that exist by virtue of certain sections of the Constitution) without public vote, thus potentially jeopardising the democratic system

extent of protection: express rights

STRENGTHS -express rights are fully enforceable as the High Court can invalidate legislation if it conflicts/infringes upon any express right -Express rights are entrenched and as such are difficult to remove (s.128). This means that express rights are very well protected and cannot be amended by Parliament -Act as a limitation on Commonwealth law-making power WEAKNESSES -as express rights are entrenched they are rendered inflexible as they can only be interpreted by the High Court but require a successful referendum for any significant changes to be made -Rights are very limited in nature given there are only 5, and that these are mainly civil and political -express rights do not provide uniform rights protection: limitations exist on these rights (e.g. trial by jury) -Mainly relate to the actions of Commonwealth Parliament, does not necessarily safeguard against the actions of State parliaments (e.g. acquisition on just terms) -tend to restrict the law-making powers of the commonwealth, rather than serving the specific purpose of rights protection

Canadian Express Rights

Some of these main rights include: Mobility Rights: Every citizen of Canada has the right to enter, remain in and leave Canada Fundamental freedoms: a) freedom of conscience and religion b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication c) freedom of peaceful assembly d) freedom of association Democratic Rights: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein

structural protections

Structural protections come from the Constitution's establishment of crucial systems, structures and processes which indirectly protect individuals from abuses of government power -do not directly confer rights to individuals Structural protections in the Constitution, including: -separation of powers -representative government*

Roach v Electoral Commissioner (2007)*

ss41 (which states that no person who is able to vote in a state election can be prevented from voting in a federal election) -Prior to 2006, the Commonwealth's Electoral Act prevented anyone serving a prison term over three years from voting. In 2006, the Commonwealth parliament amended the law, so that all prisoners were disqualified from voting. This included those held in remand, who had not yet even been found guilty of a crime -Vicki Roach, a Victorian Aboriginal woman serving a prison term of 6 years, challenged the constitutional validity of this law. -In a majority decision (4:2) the High Court held that the 2006 amendment was invalid, as it was inconsistent with the principle of representative government (ss. 7 and 24). Thus taking away the ability to vote without a significant reason for doing so violates the notion of representative government protected by the Constitution -Because the 2006 amendment didn't distinguish between those serving for serious offences, and those serving for minor offences, the amendments were deemed invalid and lacking in a substantial justification. -The original Electoral Act (prior to 2006) preventing people serving three or more years in prison from voting, was deemed valid as it was acceptable to disqualify those who had seriously violated society's laws. -The decision of the court affirmed that there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government, and which the Commonwealth is restricted from removing -Note: the right to vote was not interpreted by the court to be an implied right, but rather a reflection of structural protection