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“Righting” the Constitution without a Bill of Rights

Published online by Cambridge University Press:  24 January 2025

Peter Bailey
Peter Bailey*
Affiliation:
Faculty of Law, Australian National University
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Extract

Between 1990 and 1993, the Australian High Court handed down an amazing series of judgments. Twelve cases were involved. Six of them were primarily concerned with curbing the power of tile executive or modifying the rule of law doctrine. The remaining six focused on the protection of the rights of individuals. It is suggested that these decisions, four of which were unanimous and only two of which had as many as three Justices in dissent, reveal a major, and possibly a long-term, shift in the orientation of the Court. Using its own and British jurisprudence as a springboard, the Court is rejuvenating the traditional doctrine of the rule of law by applying it not only to rights against the state — the traditional view of civil and political rights — but also to claims upon the state, which some theorists consider are non-rights and only programmatic in their nature. It has begun to extend the concept of the rule of law into the area of substantive, as distinct from formal, equality. Finally, it has elevated certain rights to the status of a new and potent “common law of the Constitution”.

Type
Research Article
Information
Federal Law Review , Volume 23 , Issue 1 , March 1995 , pp. 1 - 36
Copyright
Copyright © 1995 The Australian National University

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Footnotes

The paper was originally prepared for the Australian Law Teachers' Association (ALTA) Conference, Christchurch, New Zealand in October 1993.

References

1 The twelve cases reviewed are:

I Power-curbing or modified rule of law cases: Bropho v Western Australia (1990) 171 CLR 1 (Bropho); Mabo v Queensland [No 2] (1992) 175 CLR 1 (Mabo); Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 (Political Advertising); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (Nationwide); Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim); Polyukhovic v The Commonwealth (1990) 172 CLR 501 (Polyukhovich).

II Individual Rights-protecting cases: Dietrich v The Queen (1992) 177 CLR 292 (Dietrich); Cheatle v The Commonwealth (1993) 177 CLR 541 (Cheatle); Plenty v Dillon (1990) 171 CLR 635 (Plenty); Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's case); Leeth v The Commonwealth (1992) 174 CLR 455 (Leeth); Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters).

2 For example, M Cranston, What Are Human Rights? (1973), ch 8; E Kamenka, “The Anatomy of an Idea” in E Kamenka (ed), Human Rights (1978); E W Vierdag, “The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights” (1978) IX Netherlands Yearbook of International Law 69.

3 (1990) 171 CLR 1.

4 [1947] AC 58, followed, for example, in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282.

5 (1990) 171 CLR 1 at 16, quoting Lord Diplock in British Broadcasting Corporation v Johns [1965] Ch 32 at 78-79.

6 All the sitting Justices except Brennan J (namely Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

7 Majority judgment at 19 (emphases added).

8 The majority also had in mind, and Brennan J made explicit (at 28), the fact that without application to the Crown, the legislation would not have been effective: 93% of Western Australia is Crown land and 50% of that land is vacant.

9 (1992) 175 CLR 1.

10 Ibid at 42 (emphasis added).

11 Ibid at 58 (emphasis added).

12 [1921] 2 AC 399 at 410.

13 (1992) 175 CLR 1 at 92.

14 Ibid at 113 and 119 (emphases added).

15 Ibid at 15.

16 Ibid at 204.

17 Ibid at 216 (emphasis added).

18 (1992) 177 CLR 106.

19 (1992) 177 CLR 1.

20 For example, ss 7, 24 and 28.

21 (1975) 135 CLR 1. The decisions of the High Court in Theophanous v The Herald and Weekly Times Ltd (1994) 68 ALJR 713 and Stephens v West Australian Newspapers Ltd (1944) 68 ALJR 765 confirm, and extend to State political discussion, and possibly beyond, the decisions relating to freedom of political communication in the Political Advertising and Nationwide cases. See G Williams, “Engineers is Dead, Long Live the Engineers” (1995) 17 Syd L Rev 62.

22 (1992) 177 CLR 106 at 140 and 142.

23 Ibid at 145 (emphases added).

24 An interesting review of the case has been made by E Barendt, “Election Broadcasts in Australia” (1993) 109 LQR168, in which he makes the comment, with which the author agrees, that the High Court by no means ruled out a scheme to the same effect, provided the freedom of political speech was more adequately protected.

25 (1992) 177 CLR 106 at 138, 140 and 142 (emphases added).

26 Ibid at 150 (emphases added).

27 Ibid at 157.

28 Ibid at 227.

29 Ibid at 232 (emphasis added).

30 (1992) 177 CLR 1.

31 Industrial Relations Act 1988 (Cth), s 299(l)(d).

32 (1992) 177 CLR 1 at 91.

33 Ibid at 69-70.

34 Ibid at 69 (emphases added).

35 Ibid at 75.

36 Ibid at 27.

37 Ibid at 34.

38 (1992) 176 CLR 1.

39 Migration Amendment Act 1992(Cth).

40 Section 54R read “A court is not to order the release from custody of a designated person.”

41 (1992) 176 CLR 1 at 32 (emphasis added).

42 Ibid at 64.

43 Ibid at 51-52.

44 Ibid at 34 per Brennan, Deane and Dawson JJ, at 13-14 per Mason CJ.

45 Ibid at 49 per Toohey J, at 55 per Gaudron J.

46 Ibid at 69-72.

47 (1991) 172 CLR 501.

48 Ibid at 528 (emphasis added).

49 (1915) 20 CLR 425.

50 (1991) 172 CLR 501 at 535.

51 Ibid at 552.

52 Ibid at 554.

53 Ibid at 611.

54 Ibid at 612.

55 Ibid at 593, 626-629 and 631-632.

56 Ibid at 606-607.

57 Ibid at 704-705.

58 Ibid at 690-691.

59 Ibid at 688-689 (emphasis added).

60 (1992) 177 CLR 292.

61 Ibid at 299 (emphases added).

62 Jago v District Court (NSW) (1989) 168 CLR 23.

63 (1992) 177 CLR 292 at 310 and 311 (emphasis added).

64 (1991) 171 CLR 468 at 478.

65 (1923) CLR 518 at 541-542.

66 (1992) 177 CLR 292 at 326.

67 Ibid at 330.

68 Ibid at 335 and 336 (emphasis added).

69 Ibid at 357 (emphasis added).

70 Ibid at 364 and 365 (emphasis added).

71 (1979) 143 CLR 575.

72 (1992) 177 CLR 292 at 374.

73 Ibid at 350.

74 (1993) 177 CLR 541.

75 Under Commonwealth law, a case being heard by a State court will be conducted according to State procedural requirements, ands 57 of the Juries Act 1927 (SA) allows 10 or 11 of a 12 person jury to convict if the jury has deliberated for at least 4 hours without reaching unanimity.

76 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

77 (1993) 177 CLR 541 at 551 (emphasis added).

78 Ibid at 552-553. The Court also referred, at 558-559, to the opinions of both Latham CJ and Evatt Jin Newell v The King (1936) 55 CLR 707 to the effect that unanimity, as opposed to a majority decision, is not a “mere matter of procedure”.

79 It has reaffirmed the common law right to trial by jury in Coco v The Queen (1994) 179 CLR 427.

80 (1990) 171 CLR 635.

81 (1604) 5 Co Rep 91a; 77 ER 194.

82 (1990) 171 CLR 635 at 639 (emphasis added).

83 Ibid at 653 (emphasis added).

84 (1992) 175 CLR 218.

85 Ibid at 235ff per Mason CJ, Dawson, Toohey and Gaudron JJ, and at 312ff and 318 per McHughJ.

86 [1986] AC 112.

87 (1992) 175 CLR 218 at 237-239. See also at 316-317 per McHugh J.

88 Ibid 218 at 233-234 (emphasis added).

89 Ibid at 250.

90 Ibid at 253-254 (emphasis added).

91 Ibid at 275-276 (emphasis added).

92 (1992) 174 CLR 455.

93 Ibid at 481-482 per Deane and Toohey JJ.

94 Ibid at 466, 467 and 471 (emphasis added).

95 Ibid at 478.

96 Ibid at 483.

97 Ibid at 486-487.

98 Ibid at 498.

99 Ibid at 500.

100 Ibid at 502 (emphases added).

101 (1991) 173 CLR 349.

102 (1989) 168 CLR 165.

103 (1989) 168 CLR 461. This case related to s 117 of the Constitution but involved a significant discussion of indirect discrimination.

104 First, there is agreement (Brennan J dissenting) that the withdrawal of the conductors and the introduction of scratch tickets represents a “requirement or condition” for the purposes of indirect discrimination (defined in s 17(5), which is quoted below). Second, there is agreement that the “more onerous terms” (or disadvantage) that have to be imposed on the person alleging discrimination if unlawful discrimination is to occur, had to be imposed only on the person requiring the service and not also on the service provider.

105 In doing so, they also observed thats 17(5) (quoted below) opens with the words “For the purposes of sub-sec (1)”. It should be noted that this definition is not the same as the definition in the Commonwealth and some other State legislation: it does not refer to discrimination based on “characteristics” of persons of the same gender, race, age, disability etc as the person claiming to be discriminated against.

106 “Facially neutral” is a term used in discrimination law to indicate that a suspect requirement or condition, in this case the scratch card requirement, may be discriminatory (against disabled persons) even though on its face it appears to apply equally to all (to be “neutral”).

107 (1991) 173 CLR 349 at 358-359 (emphasis added).

108 Status and private life are the two basic grounds of discrimination on which the Victorian legislation is based. “Status” is defined to include sex, race and other grounds, the important one for present purposes being impairment.

109 Emphases added.

110 (1991) 173 CLR 349 at 394 (emphasis added).

111 Ibid at 364-365 (emphases added).

112 R Dworkin, “Judges and the Rule of Law”, Maccabaean Lecture in Jurisprudence (1977).

113 (1991) 172 CLR 501 at 531-540 per Mason CJ, a view with which the other embers of the Court except Brennan and Toohey JJ agreed. See above n 48.

114 (1991) 172 CLR 501 at 531-540.

115 Above n 59.

116 Above n 57.

117 Above nn 32 and 37.

118 Above n 29.

119 (1979) 143 CLR 575.

120 Above nn 61, 63 and 66. For the views of Toohey J, see (1992) 177 CLR 292 at 353 and 355-357. Gaudron J, at 368-371, recognised a right to legal representation where it is essential to ensure a fair trial.

121 Aboven 73.

122 Above n 94. The author respectfully finds somewhat dubious the further ground for the majority decision, which refers to thegreater dissatisfaction prisoners would feel if the minority proposal for equal periods of actual imprisonment were to be adopted as against thedissatisfaction they experience under existing arrangements, particularly in the light of the case put by Mr Leeth.

123 See n 97 above, and compare, for example, Article 26 of the International Covenant on Civil and Political Rights, which provides that all are entitled “without any discrimination to the equal protection of the law”. With respect, the author considers ,this provision applies to the administration of the law and thus both to the head sentence and also to the length of time actually served by prisoners sentenced by a court for the same offence and with the same head sentence.

124 For example, the rejection of the approach of the Equal Opportunity Board by Dawson and Toohey JJ at n 110.

125 Aboven 111.

126 Milirrpum v Nabalco Pty Ltd and the Commonwealth [1972-73] Argus LR 65.

127 Above n 10.

128 Aboven 14.

129 Aboven 17.

130 These methods of scrutiny are discussed in L Zines, “Characterisation of Commonwealth , Laws”, in HP Lee and GWinterton (eds), Australian Constitutional Perspectives (1992).

131 Above n 23 and surrounding text.

132 In, for example, Dietrich and Leeth (fair trial) Political Advertising and Nationwide (freedom of communication).

133 Above n 34 (emphasis added).

134 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

135 (1992) 177 CLR 1 at 43, quoting Engineers' case (1920) 28 CLR 129 at 152 (emphasis added).

136 (1992) 175 CLR 1 at 45.

137 (1920) 28 CLR 129 at 145. The full (and lengthy) sentence contains inter alia the clauses “an interpretation [sought by the applicants] of the Constitution ... which is not ... referable to any recognized principle of the common law of the Constitution” and which cannot be rebutted “by an intention ... equally not referable to any common law constitutional principle”.

138 Nationwide (1992) 177 CLR 1 at 69 per Deane J.

139 The extension of this meaning to exclude any kind of separate administrative law may not, however, be so acceptable. In the author's view, this latter point is not central to Dicey's analysis. See AV Dicey, Introduction to the Study of the Law of the Constitution (9th ed 1939), ch IV.

140 Ibid at 203 (emphases added).

141 L Zines, above n 130.

142 For limitations on Commonwealth power, see, eg, State Banking case (1947) 74 CLR 31; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 205-207 per Gibbs CJ, at 215-221 per Mason J, at 235-236 per Brennan J, at 244-248 per Deane J, at 258-262 per Dawson J. For possible limitations on State power, see The Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 at 376-378 per Dixon CJ. Generally, see L Zines, The High Court and the Constitution (3rd ed 1992) at 276-288 and, in relation to s 106, at 288-294.

143 For a fascinating and erudite exposition of the development and continued application of the fundamental principles of the rule of law as against the “rule of men”, see J Toohey, “A Government of Laws, and Not of Men?” (1993) 4 Public Law Review 158 at 159.

144 See also, for a reference to the related concept of presumptions, the discussion in J Doyle and B Wells, “How Far Can the Common Law Go Towards Protecting Human Rights?” in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 107 at 118. See also DC Pearce and RS Geddes, Statutory Interpretation in Australia (1988 3rd ed) at 97, where they refer to the presumptions in statutory interpretation as being in effect a “common law Bill of Rights”. It was one of these presumptions that was revised in Bropho.

145 Poe v Ullman 367 US 497 at 542 (1961), quoted by O'Connor, Kennedy and Souter JJ (the plurality) in Planned Parenthood of Southeastern Pennsylvania v Casey 60 Law Week 4795 (1992) at 4799-4800.

146 In Mabo, it was the Meriam people of the Torres Strait Islands, and in Western Australia v The Commonwealth (unreported, 16 March 1995) the Court made it clear that the rights survived the colonisation process not only in Western Australia but throughout the Commonwealth.

147 Aboven 11.

148 (1992) 175 CLR 1 at 57-58 (emphasis added).

149 The possibility of greater use of international human rights standards is, for space reasons, not dealt with in this article. There are interesting discussions in Mabo, Polyukhovic, Marion and Leeth. See also Kirby Pin Jago v District Court of New South Wales (1988) 12 NSWLR 558 and, in more extended form, in “The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms” (1988) 62 ALJ 514; and J Doyle and B Wells above n 144 at 118 and 120.

150 Above n 61 (emphasis added).

151 Above n 82.

152 Above n 90.

153 (1992) 177 CLR 1 at 48 (emphasis in original).

154 Aboven 91.

155 The “Constitutional” conventions have been distinguished from “governmental” conventions (which operate to confirm practice not related to the Constitution itself) by J M Cooray, Conventions, the Australian Constitution and the Future (1979) at section 3.5.

156 Aboven34.

157 Reference re Constitution of Canada (1981) 125 DLR (3rd) 1.

158 Ibid. See also Sankey v Whitlam (1978) 142 CLR 1 at 40 per Gibbs ACJ, and the interesting discussion of conventions in A Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (1991); he comments (at 155) that “Canadian judges will eventually have to deal more explicitly with the nature of the judicial enforcement accorded to conventions”.

159 See, eg, FAI Insurances Ltd v Winneke (1982) 151 CLR 342. See also the interesting comment, as long ago as 1913, in Smith v The Crown (1913) 17 CLR 356 at 362-363 per Barton ACJ.

160 Above n 7.

161 (1992) 177 CLR 106 at 145.

162 Ibid at 147.

163 See D Newcombe, Unconventional Wisdom, ANU Law Faculty Honours dissertation (1993). The author is indebtedto Ms Newcombe for her careful research and for the discussions that have led to these perceptions of the status of a written constitution in a common law system. She cites Cormack v Cope (1974) 131 CLR 432, especially per Barwick CJ and Victoria v The Commonwealth (the PMA case) (1975) 134 CLR 81.

164 Section 57 provides that the Governor-General “may dissolve” the two Houses of Parliament simultaneously when certain events have occurred.

165 PMA case (1975) 134 CLR 81 at 119. Another example of lack of enforceability may bes 5 of the Constitution, which requires the Governor-General to summon a newly elected Parliament within 30 days of the return of the writs. D Newcombe, Unconventional Wisdom, n 163 at 33.

166 For example, s 2 of the Constitution in favour of s 61, with the executive power of the Commonwealth now seen as “includ[ing] the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law”: Barton v The Commonwealth (1974) 131 CLR 477 at 498 per Mason J. See also G Lindell, “Justiciability of Political Questions: Recent Developments”, in HP Lee and G Winterton (eds), above n 130 at 246.

167 (1992) 176 CLR 1 at 69-72.

168 Ibid at 51-52.

169 Sections 80, 116, 117, 51(23A), 51(31) and 92 (“intercourse”).

170 See PH Bailey, Hunum Rights: Australia in an International Context (1990) at 79, 84-86 and ch 4 generally.

171 Street v Queensland Bar Association (1989) 168 CLR 461.

172 Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 25.

173 Strictly, the decision did not apply to s 116 itself, in the sense that the case concerned the Victorian pay-roll tax exemption, not s 116; but the discussion was clearly conducted in the context of the meaning of “religion” in s 116.

174 See P Hanks, “Constitutional Guarantees” in HP Lee and G Winterton (eds), above n 130 especially at 98-100. See also PH Bailey, above n 170 at 92-94.

175 For an interesting account of the presumptions against alteration of common law doctrines, and against the invasion of common law rights, see D C Pearce and R S Geddes, above n 144, ch 5, especially at 104 and 106.

176 L Zines, Constitutional Change in the Commonwealth (1991) at 73. Zines also describes earlier decisions protecting rights by the High Court, the Supreme Court of Canada (before the Charter) and the New Zealand Court of Appeal in ch 2, especially at 39-48.

177 J Fletcher and B Galligan, Australian Rights Project, Preliminary Findings, Research School of Social Sciences, Australian National University (1993).

178 This would at least be preferable to the United States right to bear arms!

179 Note that, as far back as 1959, the International Commission of Jurists, at its New Delhi Congress, expressed the view thatthe rule of law is a dynamic concept that should be us;d to establish rights-related social, economic and cultural conditions: quoted in J Toohey,A Government of Laws”, above n 143 at 159-170.

180 J Webber, “Tales of the Unexpected: Intended and Unintended Consequences of the Canadian Charter of Rights and Freedoms” (1993) 5 Canterbury Law Review 207.