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Converging Constitutions: A Comparative Analysis of Constitutional Law in the United States and Australia

Published online by Cambridge University Press:  24 January 2025

William Rich
William Rich*
Affiliation:
Washburn University
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Extract

Constitutional jurisprudence in the United States and Australia is said to be separated by two factors: an entrenched Bill of Rights and the doctrine of parliamentary supremacy. Views of this distinction have been expressed by a succession of High Court Chief Justices.

Type
Research Article
Information
Federal Law Review , Volume 21 , Issue 2 , June 1993 , pp. 202 - 227
Copyright
Copyright © 1993 The Australian National University

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Footnotes

This project was undertaken while the author was a visiting professor at the University of Tasmania Law Department. The author wishes to thank members of that department and Ralph Simmonds and members of the Murdoch University Law Department who provided an opportunity to discuss a draft of this article. Individuals who provided additional helpful comments include Sandra Berns, Frank Neasey, Eugene Clark, Rick Snell, Bronwen Morgan and David Kinley.

References

1 The Right Honourable SirOwen, Dixon, “Concerning Judicial Method” (1956) 29 ALJ 468, 469Google Scholar.

2 Attorney-General (Cth); ex rel McKinlay v Commonwealth (197S) 135 CLR 1, 24, per Barwick CJ.

3 SirAnthony, Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” (1986) 16 FL Rev 1, 3Google Scholar.

4 SirOwen, Dixon, Address on being sworn in as Chief Justice, (1952) 85 CLR xi, xiii-xivGoogle Scholar.

5 As noted in discussions below, some issues treated as “constitutional” in the United States fit under different labels in Australia, but nevertheless incorporate similar principles.

6 See SirAnthony, Mason, supra n 3, 1Google Scholar.

7 Ibid 2-3.

8 My appreciation of the role of Inglis Clark comes in particular from review of an initial draft of materials relating to the biography of Inglis Clark which has been prepared by Frank Neasey at the University of Tasmania.

9 See La Nauze, JA, The Making of the Australian Constitution (1972) 230Google Scholar.

10 One of the Court's first references to the First Amendment as a limit on congressional power was in Ex parte Jackson (1877) 96 US 727, 736 upholding the power to exclude matters “deemed injurious to the public morals”.

11 See, eg, the Slaughter-House cases (1872) 83 US (16 Wall) 36 and the Civil Rights cases (1883) 109 US 3.

12 Plessy v Ferguson (1896) 163 US 537.

13 Fletcher v Peck (1810) 10 US (6 Cranch) 87, 135. It should be emphasised that, at the time when Chief Justice Marshall wrote this opinion, the Bill of Rights was not applicable to the states. The “general principles” to which he referred were implied constraints on government action.

14 Loan Association v Topeka (1874) 87 US (20 Wall) 655, 662.

15 Ibid 663.

16 La Nauze, supra n 9, 231. It is noteworthy that participants in the American Constitutional Convention expressed similar views about a Bill of Rights. The proposal to add protection of individual rights to the Constitution, which (as in Australia) came fairly late in the process, was over-whelmingly rejected. A leading lawyer at the Convention, James Wilson, expressed concerns that provisions such as the ban on ex post facto laws would constitute an embarrassment - as if the framers were “ignorant of the first principles of legislation.” Notes of Debates in the Federal Convention of 1787, Reported by James Madison, Ed by Gaillard Hunt and James P Scott (1920) 449.

17 In 1905, Inglis Clark noted in the Preface to the Second Edition of his text Australian Constitutional Law, v, “[T]he decisions of the High Court of Australia ... have authoritatively declared that the doctrines and principles of federal constitutional law which were enunciated by the Supreme Court of the United States in the case of McCulloch v Maryland, as those which should govern the interpretation of the Constitution of that country, are equally applicable to the interpretation of the Constitution of the Commonwealth of Australia. Reference to American decisions may therefore now be made by a writer on Australian constitutional law with much more confidence ... “.

18 For example, in Huddart, Parker & Co P v Moorehead (1909) 8 CLR 330, 337, Isaacs J noted that the constitutional provision for “trial by jury” implied that “a man shall not be compelled to give evidence against himself”.

19 United States v E C Knight Co (1895) 156 US 1.

20 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. (See, in particular,judgment of Griffith CJ at 350).

21 (1920) 28 CLR 129.

22 See B Galligan, Politics of the High Court (1987) 102.

23 There is some irony in the fact that Sir Owen Dixon, who is known as Australia's advocate for “strict and complete legalism”, was also responsible for loosening the restriction on “implied conditions” which the Engineers case had established. In West v Commissioner of Taxation (NSW) (1937) 56 CLR 657,681, Dixon J noted that constitutions must be interpreted in a manner which includes unstated implications. Rejecting the “notion that in interpreting the Constitution no implication can be made”, he declared that “such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied”.

24 For example, laws which regulated child labour were declared to have exceeded federal power in Hammer v Dagenhart (1918) 247 US 251 and again in Child Labor Tax case (1922) 259 US 20.

25 The case in which one Court member switched his vote was Labor Board v Jones & Laughlin (1937) 30I US I. Because of the same change in votes, the Court simultaneously reversed its doctrine of “substantive due process” which had blocked states from protecting conditions of employment: West Coast Hotel Co v Parrish (1937) 300 US 379. For an account of that shift in constitutional doctrine, see Robert L Stern, “The Commerce Clause and the National Economy” (1946) 59 Harv L Rev 645.

26 See Labor Board v Jones & Laughlin (1937) 301 US 1, 41.

27 Although the Parrish and Jones & Laughlin cases marked the change which resulted in majority support for the “realist” analysis, the case noted for having defined the new approach to constitutional decision-making was United States v Carolene Products Co (1938) 304 US 144. In footnote 4 of that opinion, Justice Stone articulated an approach which combined deference to the government in matters involving economic regulation and increased judicial scrutiny of matters involving express constitutional protection for individual rights, the political process, and “discrete and insular minorities”. Ibid 153.

28 See Morton Horwitz, “Republicanism and Liberalism in American Constitutional Thought” (1987) 29 Wm & Mary L Rev 51.

29 The case which symbolised the conservative economic ideology of the Supreme Court was Lochner v New York (1905) 198 US 45. The Supreme Court majority had used the Due Process Clause of the 14th Amendment to prohibit efforts to regulate working conditions among bakers in New York City. The case is especially known for the dissent by Justice Holmes who accused the Court of “enact[ing] Mr Herbert Spencer's Social Statics”. Ibid 90. The Lochner case was effectively overruled in Parrish, supra n 25.

30 See supra n 29.

31 See, eg, Herbert Wechsler, “Toward Neutral Principles of Constitutional Law” (1959)13 Harv L Rev 1.

32 (1954) 347 us 483.

33 In Dennis v United States (1951) 341 US 494, the Supreme Court upheld convictions of members of the National Board of the Communist Party using a “balancing test” which generally gave broad scope to government prosecution. That decision was narrowed to protect the principle of free speech, and to limit Congressional action against the Communist Party, in Yates v United States (1957) 354 us 298.

34 (1951) 83 CLR 1.

35 R v Kirby; ex parle Boilermakers' Society of Australia (1956) 94 CLR 254.

36 For discussion of this reassertion of authority in the context of the Boilermakers case, see B Galligan, supra n 22, 203.

37 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 221 per WilliamsJ.

38 The Boilennakers case (1956) 94 CLR 254, 260-72.

39 Brian Galligan MOte of the contrast between Owen Dixon and Earl Warren. Galligan supra n 22, 232. His characterisation of Warren a “populist politician”, however, seems to miss the point of the relatively careful constitutional structure which Warren established for his opinions in contrast with either Justice William O Douglas in the United States or Justice Lionel Murphy in Australia. A more dramatic contrast may be made between Warren's moderate to liberal political orientation and the conservative legalism of Chief Justice Barwick.

40 Melbourne Corp v Commonwealth (1947) 74 CLR 31.

41 Judgments of Rich, Starke, and Williams JJ.

42 Problems with the essential functions test were identified in 1971 by Gibbs J: “[T]o draw a distinction between essential and inessential functions of government ... is inappropriate to modem conditions... “: Victoria v Commonwealth (1971) 122 CLR 3S3, 424.

43 (1987) 163 CLR 329. In a dissenting opinion, Brennan J recognised the difficulty of drawing the line between essential and non-essential state functions and noted the abandonment of this approach by the United States Supreme Court. Ibid 360. He nevertheless affirmed the validity of an approach which protects “essential organs of government”. Ibid 364.

44 (1986) 160 CLR 430.

45 Ibid 453, per Mason, Brennan, and Deane JJ.

46 (1976) 426 us 833.

47 Garcia v San Antonio Metro Transit Auth (198S) 469 US 52.

48 The Garcia decision did not stop a minority on the Court from reasserting the “essential government functions” standard and predicting its return. See dissenting opinions of Justice Rehnquist (at 580), and of Justice O'Connor (at 589).

49 New York v United States (1992) 112 S Ct 2408.

50 Justice O'Connor concluded that the federal government could not regulate commerce through legislation directed solely at the states (and independent of federal taxing and spending power). Ibid 2428.

51 Bendix Autolite Corp v Midwesco Enterprises (1977) 486 US 888; City of Philadelphia v New Jersey (1978) 437 US 617. In the United States, this “implication” is based upon the Commerce Clause, Article 1, section 8 [3], which explicitly refers only to the power of Congress. By comparison, the Australian Constitution provides more explicit authority for High Court limits on state regulation of commerce in s 92.

52 See Cole v Whitfield (1988) 165 CLR 360. The same point has been repeatedly made in the United States. See Hunt v Washington Apple Advertising Comm'n (1977) 432 us 333.

53 See Supreme Court of New Hampshire v Piper (1985) 470 US 274. Citing the United States experience with this issue, the Australian High Court reached the same conclusion in Street v Queensland Bar Association (1989) 168 CLR 461.

54 In a series of cases the United States Supreme Court relied upon a “cumulative effect” test to allow Congressional legislation where the combined effect of regulated activities affected national commerce. See, eg, Perez v United States (1971) 402 US 146, 154. While Dixon CJ rejected a similar approach (see Wragg v State of New South Wales (1953) 88 CLR 353, 387), current High Court Justices accept the view that “logistical barriers between local economies have dissolved with the improvements in transportation and communication and these once separate economies have largely melded into one national economy”. The Honourable Sir Anthony Mason, “The Australian Constitution 1901-1988” (1988) 62 ALJ 152, 156.

55 See Commonwealth v Tasmania (1983) 158 CLR I. As noted by Mason CJ, the power extends with “virtually no limits”. Ibid 124.

56 (1819) 17 US (4 Wheat) 316,421.

57 Nationwide News Pty Ltd v Wills (1992) 108 ALR 681, 722 n 158, per Deane and Toohey JJ.

58 For a definition of responsible government, see the opinion of Barwick CJ in New South Wales v Commonwealth (1975) 135 CLR 337, 364-5.

59 For an overview of the separation between congressional and executive functions in the United States, see Bowsher v Synar (1986) 478 US 714, 721-27.

60 Note that some aspects of the doctrine of responsible government have direct United States parallels, especially the provision for legislative control over finances. Emphasis on this doctrine in the United States was illustrated by Office of Personnel Management v Richmond (1990) 496 US 414 (barring use of equitable estoppel arguments to force federal payments not otherwise authorised bylaw).

61 This “gridlock” is best represented by those years in which different political parties control Congress and the Executive. Even when the same party controls both branches of the United States government, there still are no equivalents to the tie of government Ministers to Parliament, and it is routine for Congress and the President to blame each other for unpopular or ineffective government action or inaction. See Arthur M Schlesinger, “The Constitution and Presidential Leadership” (1987) 47 Maryland L Rev 54, 61.

62 The practice of executive rule-making and its theoretical constitutional requisites are illustrated in Yakus v United States (1944) 420 US 3S. The Supreme Court has not found a case of invalid delegation of rule-making authority from Congress to the Executive since the case of A L A Schechter Poultry Corp v United States (1935) 295 US 495.

63 See, eg, Buckley v Valeo (1976) 424 US I (invalid for Congress to control appointments to the Federal Election Commission); Bowsher v Snyar (1986) 478 US 714 (Comptroller General, who could be fired by the Congressional branch. could not perform executive fimctions); Immigration and Naturalization Service v Chadha (1983) 462 US 919 (invalidating a “one-house veto” oflegislation).

64 For example, despite the Supreme Court ruling against legislative vetoes, Congress has continued to use similar methods to provide input into and control over the regulatory process. In the absence of a “case or controversy” challenging those methods, the Supreme Court has no input. See Louis Fisher, Constitutional Dialogues (1989).

65 This observation is consistent with a point made by Chief Justice Dixon: “We are ... exhorted ... to bear in mind two cardinal features of our political system, namely the unity of the Crown and the principle of responsible government, and these are said radically to distinguish [the Australian Constitution] from the American Constitution. And so of course they do; but in no relevant respect. For they do not touch the federal structure of the Constitution or its consequences. The Right Honourable Sir Owen Dixon, “Marshall and the Australian Constitution” (1955) 29 ALJ 420,423.

66 (1954) 347 us 483.

67 See Australian Commrmist Party v Commonwealth (1951) 83 CLR 1.

68 See J A La Nauze, supra n 9, 230.

69 The last case in which such government action was upheld involved Japanese internment during World War II: Korematsu v United States (1944) 323 US 214. That decision has been condemned virtually from the day it was issued. See Eugene V Rostow, “The Japanese American Cases: A Disaster” (1945) 54 Yale LJ 489.

70 For example, in City ofClebume v Clebume Living Center, Inc (1985) 473 US 432, the city had denied a zoning permit for a proposed home for the mentally retarded. The decision was demonstrably based on either ignorance or prejudice towards that group. Rather than hold that the mentally retarded are a suspect group protected by heightened judicial scrutiny, however, the Supreme Court majority simply concluded that the city's decision did not have a rational basis.

71 Thus, in Washington v Davis (1976) 426 US 229, the Court upheld use of a standardised test for screening of police officers without any showing that the test measured factors that were relevant to the work of the police, and without regard to the discriminatory impact which such a test would have. In Personnel Administrator of Mass v Feeney (1979) 442 US 256, the Court upheld use of employment preferences for veterans despite the unequal impact upon women; the existence of an historical exception for “women's jobs” did not satisfy the Court's insistence that plaintiffs must prove discriminatory intent.

72 Age Discrimination Act of 1975, 42 USC §§ 6101 et seq.

73 Americans with Disabilities Act of 1990, 42 USC §§ 12111 et seq.

74 See, eg, Wards Cove Packing Co v Antonio (1989) 490 US 642.

75 Richmond v JA Croson Co (1989)488 US 469.

76 Recent civil rights legislation in the United States was enacted in order to reverse restrictive Supreme Court interpretations of prior statutes. See Civil Rights Restoration Act of 1987, 20 USC §§ 1681 et seq; Civil Rights Act of 1991, 42 USC §§ 1981 et seq. A conservative role, blocking government efforts to address issues of racial discrimination, is not unique to the current Supreme Court. In the nineteenth century the Court accepted and then entrenched racist doctrines as they emerged from the political process. Even in the case of Brown v Board of Education, the Court was doing little more than reversing precedent which it had been responsible for creating in 1896: see Plessy v Ferguson (1896) 163 US 537. Other than its assertive role in the context of school desegregation, most Supreme Court action to limit racial discrimination involved enforcement of federal legislation. See Hearl of Atlanta Motel, Inc v United States (1964) 379 US 241. Even when the Court acted independently of the United States Congress, its actions were in harmony with those of the federal government. More recently, the Court has resisted expansion of civil rights protection, and in 1991 Congress again responded by asserting more progressive leadership.

77 (1992) 107 ALR 1.

78 See the opinion of Justice Brennan, ibid 22-26.

79 See, eg, Koowarta v Bjelke-Petersen (1982) 153 CLR 168. For a critical assessment of Australia's law, see Margaret Thornton, The Liberal Promise, Anti-Discrimination Legislation in Australia (1990). In some respects, eg, prohibition of discrimination based on homosexuality, Australian law has been more progressive than that in most parts of the United States.

80 Labelled the “right to travel”. See Shapiro v Thompson (1969) 394 US 618, holding that states cannot enacf substantial residency requirements for receipt of welfare assistance.

81 Hill v Stone (1975) 421 US 289. Voter restrictions other than residence, age, or citizenship generally cannot stand unless they serve a “compelling state interest”.

82 See, eg, Zablocki v Redhail (1978) 434 US 374 (striking marriage restrictions for those with unpaid child support obligations).

83 (1989) 168 CLR 461.

84 Attorney General (Cth); ex rel McKinlayv Commonwealth (1975) 135 CLR 1.

85 (1992) 108 ALR 577.

86 The United States Supreme Court developed a somewhat broader principle of “fundamental interests” in this context, prohibiting discrimination which affected procreation as well as marital relationships. See Skinner v Oklahoma (1942) 316 US 535 and Eisenstadt v Baird (1972) 405 US 438. This principle remains relatively unclear and incoherent. The issues involved are now more likely to be considered within the realm of due process and individual liberty considerations discussed infra at text accompanying n 124-26.

87 Sections 51(21) and (22). State laws such as those ruled unconstitutional by the United States Supreme Court in Loving v Virginia (1967) 388 US 1 (anti–miscegenation law), or Zablocki v Redhail (1978) 434 US 374 (prohibiting marriage by parents with delinquent child support records), would presumably be barred in Australia, since the power to legislate on marriage resides with the Commonwealth. Such laws could be adopted, however, by Australia's Federal Parliament.

88 The doctrine originally provided that statutes will survive wtless “purely arbitrary”. Lindsley v Natural Carbonic Gas Co (1911) 220 US 61. Recently, for example, a minimum five year prison sentence for distributing more than one gram of a “mixture or substance containing a detectable amount of LSD” was upheld even though, under the law, one dose of LSD on a sugar cube would result in a mandatory sentence while a wholesaler caught with thousands of doses of pure LSD would not be subject to the minimum sentence. It was “rational” for Congress to avoid debates regarding actual weight of active ingredients: Chapman v United States (1991) 111 S Ct 1919.

89 Allegheny Pittsburgh Coal v Webster County (1989) 488 US 336.

90 For discussion of this principle, see Re Toohey (Aboriginal Land Commissioner); ex parte Northern Land Council (1981) 151 CLR 170 (Stephens J); Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; Television Corporation Ltd v Commonwealth (1963) 109 CLR 59. See also the observation of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014, 1047: the courts will ensure that a discretionary power given to a Minister has not been exercised “outside the purpose of the Act, or unfairly, or upon an incorrect basis of fact”.

91 Nationwide News Pty Ltd v Wills (1992) 108 ALR 681, 740, quoting Commonwealth v Tasmania (1983) 158 CLR I, 260 per Deane J. Chief Justice Mason noted that: “The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires”. ((1992) 108 ALR 681, 689, citing South Australia v Tanner (l989) 166 CLR 161, 165).

92 Leeth v The Commonwealth (1992) 66 ALJR 529, 541-44. (Deane and Toohey JJ, dissenting opinion that sentences for Commonwealth crimes should not vary because of differing state sentencing practices). Gaudron, J, also dissents and agrees that “the concept of equal justice ... is fundamental to the judicial process”. Ibid 549.

93 Ibid 543.

94 Successful argwnents based on the rational basis test are also relatively rare.

95 Fifth Amendment.

96 Fourteenth Amendment.

97 Several specific rights of criminal defendants and civil litigants will be included in this summary of “procedural” protection.

98 The “just compensation” clause is provided by the Fifth Amendment and has been incorporated into the Fourteenth Amendment, thus making it applicable to the states as well as the federal government.

99 The Seventh Amendment protects the right to a jury trial for “Suits at common law, where the value in controversy shall exceed twenty dollars ... “.

100 Specific protection from unlawful searches and seizures, double jeopardy, self–incrirnination, speedy trial and excessive bail are provided within the Fourth, Fifth, Sixth and Eighth Amendments, and these protections have also been incorporated into the due process clause of the Fourteenth Amendment.

101 See Flemming v Nestor (1960) 363 US 603 (social security retirement benefits).

102 This term was used by Charles Reich in his article, “The New Property” (1964) 73 Yale LJ 733, to refer to increased dependence on government for employment, licenses, contracts, and welfare benefits. These property interests- were recognised by the Supreme Court in Goldberg v Kelly (1970) 397 US 254.

103 A “liberty interest” in one's reputation is protected when combined with protection from dismissal from public employment: Owen v City of Independence (1980) 445 622.

104 Mathews v Eldridge (1976)424 US 319.

105 Perry v Sindermann (1972) 408 US 593. (Teacher at state university had continued expectations of employment.)

106 Bishop v Wood (1976) 426 US 341. (Policeman could be dismissed without need to show cause.)

107 Note that the Australian Constitution does provide for: “The acquisition of property on just terms “. Section 51(31).

108 SD Hotop, Principles of Australian Administrative Law (6th ed 1985) 169.

109 See Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.

110 Ibid 653.

111 For example, compare Salemi v MacKellar (No 2) (1977) 137,CLR 396, 401, which says: “... the obligation to accord natural justice ... springs from the construction by the courts of the statute “, with Bishop v Wood (1976) 426 US 341, 344: “the sufficiency of the claim of entitlement must be decided by reference to state law”.

112 Note that some High Comt Justices have found that the Australian Constitution implied basic protection of criminal procedure. See the opinion of Justice Isaacs in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 337. In the context of federal offences, some Justices view the common law right to a fair trial as subject to judicial, rather than legislative, control and therefore as constitutionally entrenched. See Barton v The Queen (1980) 147 CLR 75, Mclnney v The Queen (1991) I71 CLR 468 and Dietrich v The Queen (1992) 109 ALR 385. The “right” to trial by jury, protected by s 80 of the Australian Constitution, however, only applies to cases “on indictment” and can therefore be easily avoided by Parliament. See Sachter v Attorney-General (1954) 94 CLR 86.

113 See, eg, the broad discretion given to trial judges to admit or exclude wilawfully obtained evidence in R v Ireland (1970) 126 CLR 321, 334-35 per Barwick CJ. Contrast that decision with the relatively stringent standards developed by the United States Supreme Court in Mapp v Ohio (1961) 367 US 643.

114 United States v Leon (1984) 468 US 897.

115 In Coleman v Thompson (1991) 111 S Ct 2546, the Supreme Court prohibited federal review of the question of whether an individual had received adequate assistance of counsel at his trial because the “principle of federalism” meant that the Court should not review state decisions regarding such matters. The result in Coleman '.J case was that he was put to death without any appellate court review of the adequacy of his defence. This use of “federalism” arguments moves the process of judicial review in the United States closer to the Australian model where implied “fair trial” rights are linked to Commonwealth judicial powers. See supra n 112.

116 For example, see United States v Robinson (1988) 485 US 25; P Gillies, The Law of Criminal Investigation (1982) 9-10.

117 Contrast Mcinnes v The Queen (1979) 143 CLR 575 with Argersinger v Hamlin (1972) 407 us 25.

118 Dietrich v The Queen (1992) 109 ALR 385, 386.

119 Ibid 396, per Mason CJ and McHugh J.

120 For example, the position in Victoria is as follows: “Evidence of confessions or admissions made by an accused person in relation to an indictable state offence or a federal one is inadmissible as part of the prosecution case ... unless ... tape–recorded and the tape–recording is available to be tendered in evidence ... [or] the prosecution satisfies the judge .. . that the circumstances are exceptional ... “: Richard Fox, Victorian Criminal Procedure (1992) 81. See McKinney v The Queen (1991) 171 CLR 468 (new trial ordered because of failure to caution jury regarding reliance upon evidence from police interrogation unsupported by video or audio tapes).

121 See consideration of “United States Expedients” in Attorney General's Department, Review of Commonwealth Criminal Law, Final Report (December 1991), 215.

122 For an example of efforts taken to ensure Commonwealth compliance with International Covenants, see ibid 77-89.

123 United States Constitution, Eighth Amendment.

124 Examples include the right to teach foreign languages other than English in public or private schools: Meyer v Nebraska (1923) 262 US 390; the right to attend private rather than public schools: Pierce v Society of Sisters (1925) 268 US 510; and the right to use contraceptives: Griswold v Connecticut (1965) 381 US 479. Recent use of the doctrine has also questioned state interference with decisions to terminate life-support: Cruzan v Director, Missouri Dept of Health (1990) 497 us 261.

125 Roe v Wade (1973)410 US 113.

126 Webster v Reproductive Health Services (1989) 492 US 490.

127 United States Constitution, First Amendment; Commonwealth Constitutions 116.

128 See generally Richard Ely, Unto God and Caesar (1976).

129 See Grace Bible College v Reedman (1984) 54 ALR 571.

130 Lemon v Kurtzman (1971)403 US 602.

l31 Lee v Weisman (1992) 112 S Ct 2649.

132 Attorney General (Vic); ex rel Black v Commonwealth (1980) 146 CLR 559.

133 Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577.

134 Nationwide News Pty Ltd v Wills (1992) 108 ALR 681.

135 Obscenity is defined in the case of Miller v California (1973) 413 US 15; exclusion of child pornography is fowtd in New York v Ferber (1982) 458 US 747.

136 Chaplimky v New Hampshire (1942) 315 US 568.

137 RAV v St Paul (1992) 112 S Ct 2538 (city could not prohibit racist hate speech while permitting “fighting words” with different specific content).

138 See, eg, New York Times v Sullivan (1964) 376 US 254; Philadelphia Newspapers, Inc v Hepps (1986) 475 US 767.

139 See Va Phannacy Bd v Va Consumer Council (1976) 425 US 748; Central Hudson Gas & Elec v Public Serv Comm'n (1980) 447 US 557.

140 See Nebraska Press Assn v Stuarl (1975) 423 US 1327; New York Times Co v United States (1971) 403 US 713.

141 For example, Gentile v State Bar of Nevada (1991) 111 S Ct 2720.

142 Secretary of State of Maryland v Joseph H Munson Co (1984) 497 US 947; Broadrickv Oklahoma (1973) 413 US 601.

143 The fear is that, if citizens are tmcertain about whether or not speech has been regulated, they will remain silent rather than risk prosecution. In the words of the Supreme Court, a chilling effect is created when those “sensitive to the perils posed by ... indefinite language, avoid the risk ... only by restricting their conduct to that which is tmquestionably safe”. Baggett v Bullitt (1964) 377 US 360, 372 (opinion of the Court by White J).

144 Frisbyv Schultz (1988) 487 US 474.

145 City Council v Taxpayers for Vincent (l984)466 US 789.

146 Renton v Playtime Theatres, Inc (1986) 475 US 41.

147 United States v O'Brien (1968) 391 US 367.

148 Board of Education v Barnette (1943) 319 US 624.

149 Texas v Johnson (1989) 491 US 397.

l50 See Bethel School Dist No 403 v Fraser (1986) 478 US 675; Board of Educ v Pico (1982) 457 US 853.

151 FCC v Pacifica Foundation (1978) 438 US 726; Red Lion Broadcasting Co v FCC (1969) 395 US 367.

152 Connick v Myers (l983)461 US 138.

153 See Turner v Safley (1987) 482 US 78.

154 The “clear and present danger” test was fonnulated by Justice Holmes in Schenck v United States (1919) 249 US 47. An example of its use in a modem and more restrictive form may be found in Brandenburg v Ohio (1969) 395 US 444.

155 See, eg, the statement of Mason CJ in the Nationwide News case: “The Court must take account of and scrutinise with great anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticise public institutions.” Nationwide News Pty Ltd v Wills (1992) 108 ALR 681, 693. In the Australian Capital Television case, Mason CJ and Brennan J may have signalled opposing views regarding this issue with their respective references to New York Times Co v Sullivan (1964) 376 US 254, which was the first case to impose constitutional limits on defamation actions in the United States. Mason CJ appears to approve of the United States doctrine: Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577, 595, while Brennan J uses the case to contrast Australian law with that of the United States. Ibid 610.

156 See, eg, Philadelphia Newspapers, Inc v Hepps (1986) 475 US 767 in which the Supreme Court rejected the common law of some states in which the defendant bore the burden of proving that the statements made were not false.

157 The Nationwide News case was essentially an extension of the ultra vires doctrine. See the opinion of Mason CJ, Nationwide News Pty Ltd v Wills (1992) 108 ALR 681,689.

158 See, eg, Police Department of Chicago v Mosley (1972) 408 US 92.

159 Thus, analysis of contempt law relating to the Arbitration Tribunal in Nationwide News was based on the underlying question of whether the regulations were proportionate to the legitimate needs of government in that context. See supra n 91-93 and accompanying text.

160 Connick v Myers (l983) 461 US 138.

161 Barnes v Glen Theam, Inc (1991) 111 S Ct 2456.

162 Renton v Playtime Theatres, Inc (1986) 475 US 41.

163 See also the Supreme Court treatment of a broadcast of George Carlin's “seven dirty words” in which the Justices upheld the government regulations because they viewed the content ofC-arlin's monologue as “non-political”. FCC v Pacifica Foundation (1976) 438 US 726.

164 RAV v St Paul (1992) 112 S Ct 2538, 2550.

165 As noted by Brennan J, Denmark, Ireland, Japan, The Netherlands, Norway, and Sweden all have constitutions which guarantee freedom of expression, and all permit bans on political advertising. The European Commission upheld the British ban despite a freedom to “impart information and ideas” in the European Convention for the Protection of Human Rights and Fundamental Freedoms: Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577, 606.

166 (1976) 424 US 1, cited by McHugh J, Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577, 667. It should be noted that one of the Supreme Court's most persistent free speech advocates believed that, when it invalidated the imposition of limits on personal campaign contributions by candidates, the Court went too far. Justice Marshall would limit such contributions, and by implication limit the speech activities of the candidate, to protect equal participation by less wealthy candidates. Buckley v Valeo (1976) 424 US I, 286-90.

167 (1941) 314 US 252, as cited by Mason CJ, Nationwide News Pty Ltd v Wills (1992) 108 ALR 681, 691-92.

168 Bridges v California (1941) 314 US 252, 261-63.

169 (1957) 354 us 298.

170 In this regard the Supreme Court's decision might be described as less assertive than the Australian High Court alternative in Australian Communist Party v Commonwealth (1951) 83 CLR 1. Other cases which illustrate reliance on free speech principles to permit narrow construction of statutes (while avoiding invalidation of Congressional Acts) include DeBartolo Corp v Fla Gulf Coast Trades Council (1988) 485 US 568 and Lowe v SEC (1985) 472 US 181.

171 (1968) 391 us 367.

172 See Dean Alfange, “Free Speech and Symbolic Conduct: The Draft-Card Burning Case” (1968) Sup Ct Rev l, 6.

173 The technique of “reading down” statutes to avoid conflicts with “fundamental principles” or infringement of “rights” is well illustrated in the opinion of Mason CJ in Lim v Minister for Immigration and Domestic Affairs (1992) 67 ALJR 125, 127-28.

174 Steven H Shiffrin and Jesse H Choper, The First Amendment, Cases - Comments - Questions (1991).

175 Note that the Shiffrin and Choper text did not include substantial discussion of any case in which the First Amendment was relied upon to invalidate an Act of Congress by the “activist” court of Chief Justice Earl Warren.

176 One of these four cases, Buckley v Valeo was cited favourably by McHugh J in Australian Capital Television. See supra n 166. The other three cases were: US v Eichman (1990) 496 US 310 (striking the Flag Protection Act of 1989 because it was aimed at the political content of specific speech activities); FCC v League of Women Voters of Califomia (1984) 468 US 364, 375 (invalidating a prohibition on “editorialising” by all radio stations which received funds from the Public Broadcasting Corporation because “expression of editorial opinion on matters of public importance ... is entitled to the most exacting degree of First Amendment protection”) and FEC v National Conservative PAC (1985) 470 US 480 (applying Buckley to invalidate limits on political advertising by independent political groups).

177 Sable Communications of Cal v FCC (1989) 492 US 115.

178 For example, building upon existing references to freedom of expression and to the problems of unfettered discretion under the ultra vires doctrine.

179 See, eg, Article 19(2): “Everyone shall have the right to freedom of expression.

180 For discussion of these “normative” responsibilities, see, eg, Toe Honourable Mr Justice Michael McHugh, “The Law-making Function of the. Judicial Process” (1988) 62 ALJ 15 (Part I) and 62 ALJ 116 (Part II); Robin West; “Progressive and Conservative Constitutionalism” (1988) 88 Mich L Rev 641; Morton Horwitz, “Republicanism and Liberalism in American Constitutional Thought” (1987) 29 Wm & Mary L Rev 57. For a comparative review of approaches to constitutional interpretation, see W Rich, “Approaches to Constitutional Interpretation” (1992) 12 Univ Tas L Rev (publication pending).

181 Marbury v Madison (1803) 5 US 137 (invalidating Judiciary Act provision for original Supreme Court jurisdiction in mandamus actions); Dred Scott v Sandford (1856) 60 US 393 (overruling anti-slavery legislation applied to territories of the United States).

182 This principle of federalism has been noted by Chief Justice Mason. In reference to the role of the United States Supreme Court in striking down state legislation and executive action that violates individual rights he observed that: “It is the federal-state aspects of these guarantees that are the focal point of concern... “ Sir Anthony Mason, supra n 3, 13.

183 See supra n 127-32 and accompanying text.

184 Section 51(26) as amended following the 1967 Referendum.

185 For an illustration of this focus on constitutional principles, see the opinion of Deane'and Toohey JJ in Nationwide News Pty Ltd v Wills (1992) 108 ALR 681, 721-727.

186 Sir Anthony Mason, supra n 3; 13.