An Australian (partial) bill of rights
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1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please An Australian (partial) bill of rights Rosalind Dixon* Contrary to popular perception, the Australian Constitution does contain a bill of rights. What is exceptional about this bill of rights, however, is that it is extremely narrow in both comparative and democratic terms. This narrowness in constitutional rights protection has a direct impact on the approach of the High Court of Australia to interpreting express rights guarantees. It encourages a narrow approach to the interpretation of such rights, which itself means that incremental efforts to expand constitutional rights protection are likely to be self-defeating. The only reliable approach to expanding constitutional rights in Australia, therefore, will likely involve tackling head-on the challenge of broader constitutional change. 1. Introduction Australia, it is often said, is now the only major constitutional democracy in the world without a justiciable, national charter of rights. In drafting the Constitution, the Australian framers declined to adopt such a charter for two broad reasons. First, many believed it was unnecessary, or inappropriate, given the strong tradition of parliamentary rights protection in the British Commonwealth, and the role of courts in protecting common law rights and liberties. Second, others argued that it would inevitably compromise the ability of states to maintain various racially restrictive mining and factory laws, in ways that could undermine popular support for the Constitution as a whole. 1 In recent decades, attempts to amend the Constitution to insert additional entrenched rights have resoundingly failed. 2 * Professor, Faculty of Law, The University of New South Wales (UNSW Australia). rosalind.dixon@ unsw.edu.au. The author thanks Nicholas Aroney, Sean Brennan, Dick Fallon, Claudia Geiringer, Jeff Goldsworthy, Andrew Lynch, Dan Meagher, Theunis Roux, Adrienne Stone, Mark Tushnet, George Williams, and participants at comparative constitutional roundtables held at UNSW and Melbourne Law School in December 2013 for helpful comments on previous versions of the paper, as well as the HSF Law & Economics Initiative for research support, and Amber Doyle, Kara Grimsley, Kara Grimsley, and Melissa Vogt for excellent research assistance. 1 See, e.g., George Williams & David Hume, Human Rights Under the Australian Constitution (2d ed. 2013). 2 See George Williams & David Hume, People Power: The History and Future of the Referendum in Australia (2010). I CON (2016), Vol. 14 No. 1, doi: /icon/mow004
2 An Australian (partial) bill of rights 81 So too have legislative attempts to adopt a national human rights charter. 3 Indeed, the most recent attempt by some members of the Commonwealth Parliament to introduce a national charter of rights led to an impasse: there was simply insufficient support on both sides of politics for giving courts this kind of increased role in individual rights protection. The review of Australia s human rights framework conducted by the Brennan Committee thus led to a form of statutory change that, arguably, only further confirmed Australia s status as exceptionalist in regard to the constitutional protection of rights. 4 The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) enacted a broad new rights charter for Australia, based on international human rights law, but explicitly provided that such rights should be enforced only via the political process. 5 The making, or non-making, of a statement of compatibility in respect of human rights under the Act was to have no impact on the validity or operation of Commonwealth legislation. 6 This, at least, is the orthodox understanding of the Australian constitutional rights model. The article, however, suggests that in important ways this picture is misleading. Australia does in fact already have an entrenched charter of rights at the national level it is just extremely narrow, or incomplete, compared to both international and comparative models, and broadly shared understandings of human rights in Australian legal and political culture. 7 This remains true even after the well-known decisions of the High Court of Australia (HCA) identifying an implied right to freedom of political communication under the Constitution, and subsequent decisions recognizing an implied right of access to the franchise, or limitations on the exercise of judicial power. Further, this status of the Australian constitutional rights model as a partial bill of rights (PBOR) has arguably had a marked impact on how the HCA has interpreted those rights that are expressly protected by the Constitution. In interpreting key rights, the Court has adopted an extremely narrow approach to defining the scope and substance of relevant constitutional guarantees. This is not merely the consequence of a general reluctance on the part of the HCA to assume an active role in enforcing constitutional guarantees: the Court in other contexts has been quite willing to adopt an active role in enforcing various constitutional guarantees. Yet for sections concerning the rights to jury trial and to religious freedom (ss 80 and 116), the HCA has consistently preferred an extremely narrow approach to the scope of such rights. One reason for this, the article suggests, is that the HCA has struggled to identify a coherent account of its own role in enforcing such rights, in the absence of broader constitutional rights protection under 3 See, e.g., Brian Galligan, The 1988 Referendums and Australia s Record on Constitutional Change, 43 Parliamentary Aff. 497 (1990); J. G. Starke, The Failure of the Bicentennial Referendum to Amend the Constitution, 3 September 1988, 62 Austl. L.J. 976 (1988); Brian Galligan, Rainer Knopff, & John Ur, Australian Federalism and the Debate Over a Bill of Rights, 20 Publius 53 (1999). 4 See National Human Rights Consultation, National Human Rights Consultation Report (2009). 5 See Rosalind Dixon, A New (Inter)National Human Rights Experiment for Australia, 23 Pub. L. Rev. 75 (2012). 6 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s Cf. Street v. Queensland Bar Association (1989) 168 CLR 461, 1 2 (Deane J)
3 82 I CON 14 (2016), Australia s PBOR. The HCA s more or less explicit response to this dilemma has also been to adopt a strategy of interpretive contraction i.e. to narrow the scope of explicitly protected rights, so as to achieve greater consistency in the Court s role in protecting rights. 8 This, the article suggests, may give ongoing calls for modest or incremental constitutional rights reform in Australia a clearly self-defeating character. The narrowness of these proposals reflects the strong resistance to judicial rights protection in Australia. But existing experience suggests this narrowness may doom the chances of any form of effective constitutional change: the HCA, given such modest change, might well continue to adopt the kind of narrow approach to the interpretation of constitutional rights that has largely deprived existing constitutional rights guarantees of meaningful effect. For Australia to achieve any meaningful change in its model of constitutional rights protection, it would thus seem necessary for political leaders to face more directly the challenge of broader constitutional change. The article is divided into three further sections. Section 2 sets out the orthodox understanding of Australia as lacking a national charter of rights; and contrasts this with the existence of at least four entrenched constitutional rights provisions that, together, could readily be considered a PBOR for Australia. Section 3 sets out the two quite distinct approaches of the HCA to the four rights that comprise Australia s PBOR, and how the Court s narrow approach in the context of sections 80 and 116 seems somewhat puzzling or at least cannot be explained simply by reference to the relevant text, or the timing of key cases. Section 4 offers a brief conclusion, which focuses on the potential lessons for the direction of possible future reform of the Australian constitutional rights model. 2. Australia s partial bill of rights In talking about the Australian Constitution to domestic and international audiences, leading Australian lawyers often note the absence of a constitutional bill of rights, or national rights charter. In 2007, Geoffrey Robertson QC observed that: Our judges and lawyers are still of the highest calibre... but unlike other advanced countries they have no Bill of Rights to interpret. 9 In 2010, the current Chief Justice, Robert French, noted to an American audience that, unlike the United States, Australia does not have a Bill of Rights in its Constitution. 10 And in 2014, while noting one important area of implied rights under the Constitution, the Attorney-General, George Brandis, affirmed that Australia does not have a bill of rights. 11 Media and popular accounts, 8 Cf. Rosalind Dixon, Partial Bills of Rights, 63 Am. J. Comp. L. 101 (2015). 9 Bill of Rights Needed, Says QC, Sydney Morning Herald, Aug. 28, 2007, bill-of-rights-needed-says-qc vx8.html. 10 Chief Justice Robert French, Protecting Human Rights Without a Bill of Rights (Jan. 26, 2010). 11 Attorney-General George Brandis Ill-Informed on People s Right to be Bigots, Australian Broadcasting Company, Apr. 30, 2014,
4 An Australian (partial) bill of rights 83 in Australia, also frequently emphasize that Australia is the only western commonlaw democracy without a bill of rights. 12 I want to suggest, however, that Australia does in fact have a set of entrenched constitutional rights provisions that, together, could be considered a mini or partial bill of rights. The Australian Constitution contains three or (on the dominant view) four 13 express rights provisions in the final text, which provide respectively that: Section 80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes; 14 Section 116 The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth; 15 Section 117 A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State; 16 Section 51(xxxi) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to.... The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. 17 Together, these four provisions could readily be seen as comprising a form of PBOR. The key advantage to seeing Australia s constitutional system in these terms is that it invites a shift in our attention, away from the somewhat stale debate over whether the HCA should play a role in protecting individual rights under the Constitution, toward a more nuanced discussion of how the Court does, and should, play a role in protecting individual rights, given Australia s distinctive political and legal traditions. 18 A further potential advantage is that it draws greater attention to the inter-relationship between different aspects of the HCA s existing jurisprudence on constitutional rights, in ways that may reveal hitherto under-noticed patterns of consistency and inconsistency. One potential objection to considering the relevant rights in this way is their dispersed character, or the fact that they are not contained in any distinct section or chapter 12 See, e.g., Susanna Dunkerley, Govt Receives Report on Bill of Rights, Sydney Morning Herald, Sep. 30, 2009, gc7s.html. See also Sir Harry Gibbs, Does Australia Need a Bill of Rights? (1995); Sir Owen Dixon, Address at the Annual Dinner of the American Bar Association, 16 Australian Law Journal For the debate about the status of s. 51(xxxi) in this context, see Rosalind Dixon, Overriding Guarantee of Just Terms or Supplementary Source of Power? Rethinking s. 51 (xxxi) of the Constitution, 26 Sydney L. Rev. 639 (2005). 14 Australian Constitution s Id. s Id. s Id. s. 51(xxxi). 18 Cf. Ronald Sackville, Bills of Rights: Chapter III of the Constitution and State Charters, 18 Austl. J. Comp. L. 67.
5 84 I CON 14 (2016), of the Constitution entitled a charter of rights. On the contrary, their placement reflects the contingencies surrounding their drafting, and a largely non- principled set of structural organizing choices. In a comparative context, however, we do not generally regard the formal organization or labeling of rights guarantees as critical to their status as a bill of rights. In the US, the first ten amendments to the Constitution are generally referred to as the Bill of Rights, but they are not contained in any separate section of the Constitution with that formal label. 19 The federal government is also bound by the Equal Protection Clause of the Fourteenth Amendment, 20 even though the first ten amendments and the Fourteenth Amendment are separated by a delay of seventy-seven years, and two intervening amendments (the Eleventh and Twelfth Amendments) that have nothing to do with individual, as opposed to state, rights. At a state level, the Thirteenth, Fourteenth, and Fifteenth Amendments arguably form the core of the bill of rights, both by their own terms, and by incorporating most of the rights found in the federal Bill of Rights. But in enacting these post-civil War amendments, the US Congress attached no specific bill of rights label to these provisions. Similarly, we often think it is possible for countries to have a bill of rights, even in the absence of a single document labeled the capital C constitution. 21 Another objection to classifying the relevant constitutional provisions as a bill of rights might be that they are not in fact rights-based provisions at all, but limitations on power that have only a vague resemblance to the kinds of rights found in other constitutions. This objection has particular force in the context of section 51(xxxi), and the requirement of just terms for any acquisition of property by the Commonwealth, 22 as a condition on the valid exercise of legislative power in this area, but could also potentially be raised in the context of provisions such as sections 80, 116, and The difficulty with this view, however, is that almost all limitations on governmental power have this dual-faceted character, or to some degree impose both structural limits on the scope of government action and confer important sources of immunity on individuals from coercive government action, in ways that ground or protect the exercise of individual liberty. Indeed, many constitutional systems explicitly recognize that rights-based norms can have both this more structural and individual, or objective and subjective, character. 24 Wherever a constitution uses 19 See, e.g., Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865 (1960); William J. Brennan Jr., Why Have a Bill of Rights?, 26 Val. U. L. Rev. 1 (1991). 20 See Michael C. Dorf, Equal Protection Incorporation, 88 Va. L. Rev 951 (2002). 21 See, e.g., the view that Israel s Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation together comprise Israel s Bill of Rights : Aharon Barak, Human Rights in Israel, 39 Isr. L. Rev. 12 (2009); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law, 26 Isr. L. Rev. 238 (1992). But see Ruth Gavison, The Controversy Over Israel s Bill of Rights, 151 Isr. Y.B. Hum. Rts. 113 (1985) (disputing this characterization). 22 See, e.g., Dixon, supra note See, e.g., infra Section See, e.g., the German notion of objective constitutional principles emanating from rights: Edward J. Eberle, Observations on the Development of Human Dignity and Personality in German Constitutional Law: An Overview, 33 Liverpool L. Rev. 201 (2012); Peter E. Quint, Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247 (1989).
6 An Australian (partial) bill of rights 85 rights-freighted language, it can thus be useful to analyze the relevant provisions as both serving as a limitation on governmental power and providing at least an indirect protection of individual rights. What is clearly striking, or distinctive, about Australia s charter of rights in this context, however, is its distinct narrowness both in international and comparative terms, and when compared to background democratic understandings in Australia. The Constitution not only fails to protect key common law rights and liberties; it fails to recognize and protect a long list of international human rights, such as those re cognized in the International Covenant on Civil and Political Rights (ICCPR) 25 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 26 (signed and ratified by Australia between 1972 and 1980). From a comparative perspective, an increasing number of constitutions worldwide now contain rights charters that include many of these core international human rights guarantees. 27 These international human rights do enjoy some level of judicial protection in Australia via the principle of legality, or associated rules of statutory construction. When it comes to common law rights and liberties, the HCA has generally held that it will lean toward a construction of legislation that preserves scope for the enjoyment of such rights. 28 Similarly, in the context of international human rights, a majority of the Court has generally endorsed similar principles regarding statutory interpretation. 29 What is also quite clear in Australia, however, is that the HCA will not apply these principles of interpretation if there is statutory language that clearly indicates a legislative intention to override either common law rights or liberties, or human rights. 30 The degree of protection given via these principles is thus itself only quite partial or incomplete. The judicial protection of rights, under the Australian Constitution, also remains distinctly narrow even when one considers the degree to which the HCA has added to this list by identifying a series of implied rights under the Constitution. 31 One judge in Australia s history, Justice Lionel Murphy, suggested that the Constitution in fact supported the implication of a broad range of democratic and human rights, including rights to freedom of speech; freedom of movement; freedom from involuntary servitude or slavery; freedom from discrimination; and freedom from cruel, inhuman, 25 Dec. 16, 1966, 999 U.N.T.S Dec. 16, 1966, 993 U.N.T.S D. S. Law & M. Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Calif. L. Rev (2011). 28 See, e.g., Dan Meagher, The Common Law Principle of Legality, Alternative L.J., Dec. 2013, at 209; Dan Meagher, The Common Law Principle of Legality in the Age of Rights, 35 Melbourne U. L. Rev. 449 (2011). 29 See, e.g., Colin J. Beck, Gili S. Drori, & John W. Meyers, World Language Influences on Human Rights Language in Constitutions: A Cross-National Study, 27 Int l Soc. 483 (2012); Christopher Harland, The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of State Parties: An Initial Global Survey Through UN Human Rights Committee Documents, 22 Hum. Rts. Q. 187 (2000); Wayne Sandholtz, Treaties, Constitutions, Courts, and Human Rights, 11 J. Hum. Rts. 17 (2012). 30 See, e.g., Al-Kateb v. Godwin (2004) 219 CLR 562 (McHugh J). 31 See, e.g., Adrienne Stone, Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication, 25 Melb. U. L. Rev. 374 (2001).
7 86 I CON 14 (2016), and degrading treatment. 32 A majority of the HCA, however, has only ever recognized a narrow range of implied rights namely, those core democratic or political rights that can be derived or implied directly from the provision in sections 7 and 24 of the Constitution for the members of the House of Representatives and Senate in Australia to be directly chosen by the people (and the provision in section 128 for constitutional amendment by popular referendum). At most the HCA has recognized three or four implied constitutional rights in Australia, all of which are closely connected to the idea of responsible and representative government: freedom of political communication, and associated rights of association; 33 freedom of access to the seat of government; 34 and universal access to the franchise. The only other meaningful source of implied constitutional protection for individual rights comes from the Court s separation of powers jurisprudence; and the Court s finding that the Constitution s structure creates not only a strict separation between judicial and non-judicial power at a Commonwealth level, but also a restriction on the capacity of state legislatures to confer non-judicial functions on state courts, at least where those functions would have the capacity to impair the institutional integrity of state courts as courts capable of exercising federal jurisdictions. 35 These restrictions on the exercise of non-judicial power do not directly protect individuals right to liberty, or due process, or provide comprehensive protection against arbitrary infringements of individual liberty. But they do, some justices and commentators suggest, provide an important partial or indirect check against arbitrary infringement of individual liberty by preventing the political branches from cloaking exercises of arbitrary power with the legitimacy of the judicial process. 36 At a democratic level in Australia, there is clear popular support for broader forms of judicial rights protection. A 1991 national opinion poll found that 54 percent of Australians believed that rights were not well protected against unfair government action ; 72 percent favored proposals for an Australian Bill of Rights ; and 88 percent favored holding a referendum to decide whether such a bill of rights should be incorporated into the Constitution. 37 More recently, a national opinion poll commissioned 32 See, e.g., Ex Parte Henry (1975) 133 CLR 369, 388; General Practitioners Society v. Commonwealth (1980) 145 CLR 532, 565; Ansett Transport Industries (Operations) Pty Ltd. v. Wardley (1980) 142 CLR 237, ; Sillery v. The Queen (1981) 180 CLR 353, 360 3; Buck v. Bavone (1976) 135 CLR 110, ; Ansett Transport Industries (Operations) Pty Ltd. v. Commonwealth (1977) 139 CLR 54, See ACTV (1992) 177 CLR 106; Nationwide News Pty Ltd. v. Willis (1992) 177 CLR See ACTV (1992) 177 CLR 106; Mulholland (2004) 209 ALR 582; R v. Smithers (1912) 16 CLR 99; Pioneer Express Pty Ltd. v. Hotchkiss (1958) 101 CLR See, e.g., Kable v. DPP (NSW) (1996) 189 CLR 51. The language here adopts the particular formulation of the doctrine developed by Chief Justice French: see, e.g., K-Generation Pty. Ltd. v. Liquor Licensing Court (2009) 237 CLR 501, though is very similar to other formulations: see, e.g., Gypsy Jokers Motorcyle Club Inc. v. Commissioner of Police (2008) 234 CLR 532, 552 (Gummow, Hayne, Heydon, and Kiefel JJ). 36 See, e.g., Fardon v. Attorney-General (Qld) (2004) 223 CLR 575, 586 (Gleeson CJ); Thomas v. Mowbray (2007) 233 CLR 307, 328 (Gleeson CJ); Momcilovic v. The Queen [2011] HCA 34 (Crennan & Kiefel JJ) (citing Mistretta v. United States, 488 U.S. 361 (1989)). On their bill of rights like quality, in this respect, see also, e.g., Ronald Sackville, An Age of Judicial Hegemony, Austl. Fin. Rev., Dec. 13, 2012, afr.com/p/opinion/an_age_of_judicial_hegemony_lzdelwl42p5emezcjfeuwo. 37 B. Galligan, Australia Rejection of a Bill-of-Rights, 28 J. Commonwealth & Comp. Pol. 344 (1990).
8 An Australian (partial) bill of rights 87 by Amnesty International in 2009 found that 54 percent of those surveyed believed their rights were only partially protected under Australian law, with 2 percent believing their rights were not protected at all. 38 Also in 2009, the National Human Rights Consultation Committee reported the findings of a national opinion poll on human rights in Australia: 75 percent of those surveyed believed that human rights were important; 26 percent were concerned about the human rights situation in Australia; 72 percent thought it was important to have human rights explicitly defined rather than relying on a set of general principles; and 84 percent said the courts had a high or very high responsibility to protect human rights in Australia. 39 Further, in 2011 the Expert Panel on Constitutional Recognition of Indigenous Australians reported that 90 percent of Australians surveyed supported the insertion of a new constitutional guarantee protecting all Australians from racial discrimination. 40 The limited set of rights contained in the Australian Constitution, therefore, is clearly narrow or partial not only when compared to international and comparative models, but also background democratic attitudes. It is not just that the Constitution excludes rights found in other constitutions, which lack meaningful democratic support in Australia: it also excludes rights that a majority of citizens recognize as valid, and as an appropriate subject of judicial protection and enforcement. 3. Australia s partial bill of rights and narrow High Court interpretation In interpreting many key provisions of this PBOR, the HCA has taken a notably narrow approach to their scope and substance. At times, it has even declined to recognize these provisions as rights-based guarantees; and suggested that they should be understood as mere ordinary limits on government power. In other contexts, the Court has recognized them as rights, but interpreted them extremely narrowly, holding that that their substantive content is largely a matter for political rather than judicial determination. In the interpretation of section 80 the HCA from the outset has taken an extremely narrow view of when Parliament is required to provide a trial by jury. In R v. Archdall, 41 a 1928 case involving a federal charge against a union official for hindering the provision of a Commonwealth service (lighthouse services), four members of the HCA stated that: The suggestion that the Parliament, by reason of sec. 80 of the Constitution, could not validly make the office punishable summarily has no foundation and its rejection needs no exposition. 42 The fifth justice, Justice Higgins, held that if there be an indictment, there must be a jury, but there is nothing to compel 38 Majority Support the Introduction of a Law to Protect Human Rights in Australia, Amnesty Int l, Mar. 12, 2009, 39 National Human Rights Consultation Committee, National Human Rights Consultation Report (2009). 40 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel 91 (2012) [hereinafter Expert Panel]. 41 (1928) 41 CLR Id. at 136 (Knox CJ, Isaacs, Duffy & Powers JJ).
9 88 I CON 14 (2016), procedure by indictment. 43 In Lowenstein, a 1938 federal bankruptcy case, a majority of the Court held that [t]he Commonwealth Parliament can, at its discretion, provide that offences shall be triable summarily or on indictment and it is only when the trial takes place on indictment (not when the offence is an offence which might have been prosecuted on indictment) that section 80 applies. 44 In more recent cases, such as Kingswell v. The Queen 45 and Cheng v. The Queen, 46 the Court has consistently deferred to these early precedents, holding that it is for Parliament and not the Court to determine when an offence is sufficiently serious to warrant trial by indictment, and thus a guarantee of trial by jury. Moreover, in doing so, the Court has frequently rejected the relevance of rights-based language, or modern approaches that seek to give a broad interpretation to the prima facie scope of constitutional rights. In Brown v. The Queen, in 1986, for example, Chief Justice Gibbs explicitly suggested that section 80 should be seen as a mere procedural provision, rather than a substantive guarantee of constitutional rights. 47 Similarly, in Kingswell in 1985, a plurality suggested that the fact that in the past section 80 had been given an interpretation which deprives it of much substantive effect... provide[d] a [further] reason for refusing to import into the section restrictions on the legislative power which it does not express. 48 In interpreting section 116, the HCA has taken a similarly narrow approach to the scope of the guarantees of free exercise and non-establishment of religion. 49 In Krygger v. Williams, 50 the HCA held that the guarantee in section 116 was restricted to laws passed with the clear objective purpose of imposing a burden on religious free exercise, rather than laws that merely incidentally burdened religious free exercise. 51 Some members of the Court even suggested that the free exercise clause applied only to religious belief, and not to any religious practices, or individual actions motivated by a sense of religious duty. 52 In Adelaide Co. of Jehovah s Witnesses Inc. v. Commonwealth, a World War II case involving a law dissolving the Jehovah s Witness church (as a deemed threat to national security), several members of the HCA affirmed this purpose-based approach, suggesting that the word for in section 116 supported this kind of focus on legislative purpose. 53 More important for the scope of section 116, the Court adopted a strongly internal approach to assessing the reasonableness of 43 Id. at Ex parte Lowenstein (1938) 59 CLR 556, 571 (Latham CJ). 45 (1985) 159 CLR (2000) 203 CLR (1986) 160 CLR 171, (1985) 159 CLR 1, At a definitional level, of what constitutes a religion for constitutional purposes, the HCA has taken a more generous approach: see, e.g., Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120. See also discussion in Carolyn Evans, Religion as Politics Not Law: The Religion Clauses in the Australian Constitution, 36 Rel. State & Soc. 283 (2008). 50 (1912) 15 CLR Id. at 369 (Griffith CJ). 52 Id. at (1943) 67 CLR 116, 10 (Latham CJ) (McTiernan J concurring), (Williams J).
10 An Australian (partial) bill of rights 89 limitations on the right to religious free exercise. 54 Like many courts, the HCA stressed that the right to religious freedom is not absolute, and must be balanced against competing rights and social interests, including the interest in social order and collective security. 55 The Court, however, also went on to hold that this should inform the prima facie scope of the right to religious free exercise, rather than whether a particular government action was reasonable in the circumstances. 56 The Court has likewise taken a distinctly restrictive approach to the scope of the establishment clause, or the guarantee of non-establishment, in section 116. In Attorney- General (Vic) ex rel. Black v. Commonwealth (DOGS Case), 57 the first major challenge under this clause to a program providing government funding to private schools, most of which were religious in character, the Court was explicit in rejecting the merits of this challenge at almost every level. First, the majority held, section 116 was not in fact to be treated as an independent constitutional guarantee, or a provision for the purpose of protecting a fundamental human right, 58 but rather as a denial of legislative power to the Commonwealth, and no more. 59 Because of this, it was to be construed narrowly, rather than generously. 60 Accordingly, a majority held that the concept of establishment in section 116 means giving a religion the status of official state religion, or the authoritative establishment or recognition by the State of a religion or a church as a national institution, 61 and not simply preferring religion over non-religion, or effectively advancing a particular religion. The Court further held that the test for whether a law infringed section 116 was a purpose, rather than effects, based test: only laws with the clear objective purpose of establishing a state religion could violate section 116, not laws with that incidental effect. 62 The law in question was thus held to be almost entirely immune from challenge under section 116. The HCA s approach in this context is also hard to explain simply by reference to the general approach of the HCA to constitutional interpretation, or the enforcement of individual rights. The HCA in other contexts has taken a quite broad and generous approach to interpreting the scope of various sources of federal legislative power, and constitutional guarantees such as the guarantee of freedom of interstate trade and commerce. It has also taken a similar approach to select individual rights guarantees, such as sections 117 and 51(xxxi). In the context of section 117, for instance, in Street v. Queensland Bar Association, 63 the modern HCA held that the prohibition on discrimination by states against residents of other states should be interpreted broadly or generously, 64 rather than in a narrow[ly] technical or legalist[ic] way. 54 See Robert Alexy, A Theory of Constitutional Rights (2002). 55 Adelaide Co. of Jehovah s Witnesses Inc. v. Commonwealth (1943) 67 CLR 116, 9 (Latham CJ) (McTiernan J concurring), 3 (Starke J). 56 Id. 3 (Starke J), 10 (Latham CJ) (McTiernan J concurring) (Rich J). 57 (1981) 146 CLR Id. 24 (Gibbs J). 59 Id. 38 (Wilson J) (emphasis added). 60 Id. 9 (Mason J). 61 Id. 14 (Mason J), 31 (Barwick CJ), 17 and 25 (Gibbs J), 39 (Wilson J). 62 Id. 26 (Barwick CJ), 26 (Gibbs J), 12 (Mason J), 40 (Wilson J). 63 (1989) 168 CLR Id. 8 (Deane J).
11 90 I CON 14 (2016), The Court further held that it should be understood to apply to a range of statuses falling well short of permanent residency, and to prevent discrimination of a practical as well as formal, legal kind. 65 This, the Court suggested, accorded with the general approach of courts worldwide to the interpretation of constitutional anti-discrimination provisions. Similarly, in interpreting section 51(xxxi), the Court s general approach has been to give broad prime facie scope to the just terms requirement. Thus, the Court has suggested, the just terms requirement is to be regarded as a great constitutional safeguard, 66 and to be construed broadly and generously. 67 Consistent with this, the Court has recognized a broad range of proprietary interests, 68 and a range of non-traditional property interests in defining the concept of property for the purposes of section 51(xxxi). 69 It has also held that an acquisition is not limited to acquisitions by the Commonwealth, or its agents, but includes transfers of property to third parties created by Commonwealth legislation. 70 Similarly, the Court has held that the just terms requirement applies to certain cooperative schemes between the Commonwealth and the states, and more recently, to the exercise of Commonwealth legislative power in respect of the territories (under section 122 of the Constitution). 71 The HCA s far narrower approach to sections 80 and 116 seems hard to explain simply by reference to differences in the language of the relevant provisions, or the timing of key cases. While the text of sections 80 and 116 may support the Court s narrow approach to the protection of individual rights, the text has seemingly played a limited role in explaining the Court s broad reading of section 51(xxxi), or the shift in its approach to section 117. In other jurisdictions, such as the US, courts have also been willing to impose significant glosses on similar forms of constitutional language, so as to expand guarantees of trial by jury against the states (via incorporation), or protections against the prohibition of religious free exercise. 72 The timing of key cases provides a more persuasive explanation. The Mason Court, arguably Australia s most progressive court in respect of human rights protection, 73 overruled longstanding precedent in Street to create a new understanding of section 117, and consistently adopted a broad approach to section 51(xxxi), but had no 65 Id. 30 (Mason CJ). 66 Trade Practices Commission v. Tooth & Co. Ltd. (1979) 142 CLR 397, 8 (Barwick CJ); Wurridjal v. Commonwealth [2009] HCA 2, 178 (Gummow & Hayne JJ). 67 See, e.g., Wurridjal [2009] HCA 2, 89n. 200 (French CJ); ICM Agriculture Pty. Ltd. v. Commonwealth [2009] HCA 51, 43 (French CJ, Gummow, & Crennan JJ). 68 Minister of State for the Army v. Dalziel (1944) 68 CLR Bank of NSW v. Commonwealth (1948) 67 CLR 1, 349 (Dixon J). 70 Trade Practices Commission v. Tooth (1979) 142 CLR 397; Australian Tape Manufacturers Association Ltd. v. Commonwealth (1993) 177 CLR See, e.g., PJ Magennis Pty. Ltd. v. Commonwealth (1949) 80 CLR 382; ICM Agriculture Pty. Ltd. [2009] HCA 51, 46 (French CJ, Gummow & Crennan JJ); Spencer v. Commonwealth [2010] HCA 28, See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963) (focusing on laws with an undue burden, in terms of impact); Employment Division v. Smith, 494 U.S. 872 (1990) (focusing on laws with the purpose of imposing an undue burden). 73 See, e.g., Jason L. Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (2006); George Williams & Paul Kildea, The Mason Court (Nov. 7 8, 2013).
12 An Australian (partial) bill of rights 91 similar opportunity in respect of sections 80 or 116. When presented with that opportunity, some members of that Court namely, Justice Gaudron also advocated overruling the prior narrow approach to section Other previous members of that Court, however, such as Justice McHugh, declined to revisit prior precedents, holding that they were binding and correctly decided. 75 In Cheatle v. The Queen, in 1993, in holding that section 80 protects the essential features of trial by jury in 1900, the Mason Court had a natural opportunity to opine on the scope of section 80, but gave no express indication that it was willing to revisit earlier Courts narrow approach. 76 Instead, the Court simply noted that it was common ground that the trial of the appellants was, for the purposes of s 80, a trial on indictment. 77 For section 116, the Brennan Court, which succeeded the Mason Court and was very similar in terms of willingness to protect individual rights, 78 also expressly affirmed a narrow purpose-based approach to the guarantee of free exercise of religion. In Kruger v. Commonwealth, other than Justice Gaudron, almost all the justices who addressed the question affirmed the prior narrow approach of treating section 116 as directed only to laws with the express purpose, rather than effect, of burdening religion. 79 The most persuasive explanation for these differing patterns is thus that they are a product of both these context-specific factors and the more general status of the Australian Constitution as a PBOR and the general insistence on the part of the HCA that the text of the Constitution is to be read as a coherent whole, or by reference to a consistent set of underlying general principles. 80 In interpreting a written constitution, as I have noted elsewhere, judges in many constitutional systems stress the desire to read the constitution as a coherent whole. 81 The HCA is no exception: it frequently stresses the importance of reading the Constitution by reference to notions of coherence, or consistency. 82 Under a PBOR, judges will also face an obvious difficulty in providing a fully coherent, or consistent, account of the scope of judicial rights protection under the constitution. To do so, they must explain both the rationale for including certain express rights guarantees under a constitution and the rationale for excluding certain seemingly similar rights from the scope of judicial rights protection. The most attractive response by a court to this dilemma will generally be allocational that is, an approach that seeks to provide an account for why the particular 74 Cheng (2000) 203 CLR 53, (Gaudron J). 75 Id (1993) 177 CLR Id. 3. The only implicit indication to the contrary is at 12 (noting differences and similarities between s. 80 and art. III of the US Constitution). 78 See, e.g., Mabo v. Queensland (No. 2) (1992) 175 CLR 1. See also Patrick Emerton & Jeffrey Goldsworthy, The Brennan Court, in The High Court, the Constitution and Australian Politics (Rosalind Dixon & George Williams eds., 2015). 79 (1997) 190 CLR 1, 40 (Brennan CJ), 86 (Toohey J), 160 (Gummow J), (Dawson J). 80 See, e.g., Henry v. Boehm (1973) 128 CLR 482, 25 (Stephen J). 81 See Dixon, supra note See, e.g., Bank of New South Wales v. Commonwealth (1948) 76 CLR 1 [hereinafter Bank Nationalization Case].
13 92 I CON 14 (2016), rights protected by a constitution are in some way special from the perspective of judicial rights protection, or the protection of other constitutional values or structures. Such an approach may be more or less general or clause-specific in nature, and also more or less backward or forward-looking i.e., focused on the actual historical reasons for including certain rights under a constitution, or more logical or theoretical justifications for the selective constitutional protection of certain rights. 83 But in each case, the attempt will be to find some justification for the Court s selective role in protecting individual rights, and thus to justify the natural and ordinary meaning of relevant constitutional language in a way that has clear rule of law virtues. 84 This is also arguably exactly the approach the HCA ultimately endorsed in adopting a broad approach to the prima facie scope of sections 117 and 51(xxxi). In Street, for instance, the HCA suggested that one of the key aims of section 117 was to promote national unity, or to bring into existence and one people... by eliminating disability or discrimination on account of residence in another State. 85 Chief Justice Mason went further in linking section 117 to notions of economic unity, or economic federalism, suggesting that it was one of several constitutional provisions designed to promote national economic unity. 86 At least three other judges expressed some sympathy for this view. 87 Such an approach also accords with the Court s approach to section 92 of the Constitution. In 1988, the year before Street was decided, the HCA in Cole v. Whitfield significantly changed its approach to section 92, holding that its role was to protect inter-state trade and commerce from discriminatory burdens of a protectionist kind. 88 Section 92, however, contains potentially important gaps in its capacity to promote true economic unity. It protects inter-state trade and commerce against protectionist burdens, and freedom of intercourse among states. But it does not explicitly apply to a range of services, such as the professional services of lawyers, which the framers regarded as distinct from commerce. 89 For the Constitution to create a truly unified national economy, therefore, provisions such as section 117 have a clear role to play in preventing discriminatory burdens of a protectionist kind in the national market for services. 90 To do so, they must clearly apply to any state regulation with the practical capacity to deter interstate travel or movement for commercial purposes, for whatever time frame, but also need not apply more broadly to laws that lack any economically protectionist character For an exploration of more procedural(ist) versions of the special need for protection of certain rights, see, e.g., Dixon, supra note 8 (discussing Ely-style procedural accounts of judicial review and their reception in New Zealand). 84 On the rule of law on this kind of approach to interpretation, see, e.g., Justice Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev (1989). 85 Street v. Queensland Bar Association (1989) 168 CLR 461, Id. 87 Id. at 528 (Deane J), (McHugh J), (Toohey J) (expressing more limited sympathy for this view). 88 (1988) 165 CLR 360, Id (Dawson J). 90 Id. 30 (Brennan J). 91 See Street (1989) 168 CLR 461, 16, 21 (Gaudron J).
14 An Australian (partial) bill of rights 93 For section 51(xxxi), the Court s rationale for giving a broad, but still limited, reading to the just terms requirement has been less clear. One view of the just terms requirement would treat it as closely connected to a core set of structural constitutional provisions that seek to limit the scope for arbitrary government power at the Commonwealth level. 92 A concern to prevent arbitrary exercises of government power will also provide good reason to adopt a broad reading of the prima facie scope of section 51(xxxi). It will generally be immaterial from the perspective of a concern about government arbitrariness whether a Commonwealth law affects traditional or non-traditional proprietary interests, purports wholly or partially to interfere with those interests, or assigns the benefit of particular interests to the Commonwealth or a third party. At the same time, a focus on arbitrariness might also explain the limits imposed on the scope of section 51(xxxi) in contexts such as those involving fines, taxes and penalties; 93 the sequestration of the property of a bankrupt; 94 or statutory rights deemed by the Court to be inherently susceptible to variation. 95 These are all contexts wherein the taking of a person s property can be seen as quintessentially nonarbitrary in both a procedural and substantive sense. 96 In the interpretation of both sections 80 and 116, in contrast, the HCA has seemingly been unable to identify an allocational account of this kind. The historical origins of these rights do not provide any natural basis for an allocational account: they were included as the result of a true compromise between opposing political factions, and strongly influenced by political contingency. They did not reflect some over-arching shared vision of the appropriate role for courts in protecting individual rights. From a more forward-looking perspective, there is also little obvious basis for giving these rights special protection, compared to other common law or human rights. The HCA has generally treated the rights to both trial by jury and religious free exercise as classic common law, or civil rights. Once these rights are seen in common law, or even more so, in human rights, terms, any allocational account also becomes extremely unstable. The Constitution clearly does not protect all common law rights and liberties. It protects only three of the six broad categories of individual rights re cognized by most common law legal systems that is, a right to a fair trial (though 92 See, e.g., Ex parte Boilermakers Society of Australia (1956) 94 CLR 254. For criticism, see Fiona Wheeler, The Boilermakers Case, in Australian Constitutional Landmarks 160 (H. P. Lee & George Winterton eds., 2003). 93 See, e.g., Burton v. Honan (1952) 86 CLR 169; Airservices Australia v. Canadian Airlines International Ltd. (2002) 202 CLR 133; Federal Commissioner of Taxation v. Clyne (1958) 100 CLR See, e.g., A-G (Cth) v. Schmidt (1961) 105 CLR 361, (Dixon CJ); Trade Practices Commission v. Tooth (1979) 142 CLR 297, 4 (Barwick CJ). 95 See, e.g., Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, (Mason CJ, Deane, and Gaudron JJ); Health Insurance Commission v. Peverill (1994) 179 CLR 226, 237 (Mason CJ, Deane, and Gaudron JJ). 96 There is still the difficulty under such an allocational account of explaining why individual life, liberty and property does not enjoy broader protection against arbitrary infringement at a Commonwealth and state level. Another potentially important allocational account, developed by the HCA in this context, is thus also significantly more formal, and focused on the similarity between the just terms requirement and other express limits on Commonwealth power under section 51 of the Constitution: see, e.g., Dixon, supra note 13.
15 94 I CON 14 (2016), only in respect of a right to trial by jury), a right to property, and to freedom of religious exercise. It also protects even these rights over only a limited domain, namely: the sphere of Commonwealth legislative power, rather than the much broader area of state power operative in To provide a coherent account of its own role in protecting individual rights, the HCA has thus sought to adopt a quite different interpretive strategy i.e., to reduce the scope of expressly protected rights to a narrow minimum, so as to increase the degree of consistency in the protection of these and other comparable rights. At times, the Court has been quite explicit about the role of this kind of consistencybased logic as a basis for adopting a narrow approach to sections 116 and 80. In the Jehovah s Witness Case, the Court explicitly cited a desire to fit section 116 with state-level legislative practices in 1901 (such as those prohibiting murder, polygamy, or animal slaughter) as a reason to give a narrow reading to the free exercise clause. 98 If such practices were deemed unreasonable by the framers, Justice Williams suggested, they would have departed from norms of parliamentary supremacy and imposed explicit constitutional constraints on such practices. The fact that they did not do so, Justice Williams suggested, could therefore be seen as evidence that such practices were seen as acceptable at both a state and Commonwealth level. In the DOGS case, Justices Gibbs and Wilson explicitly drew on notions of consistency to support a narrow reading of section For Justice Gibbs, the focus was on symmetry between the treatment of religious freedom and other rights at the Commonwealth level: the key reason for rejecting the broader approach taken by the US Supreme Court to the Establishment Clause, according to Justice Gibbs, was that in the US, unlike Australia, the Establishment Clause is contained in a provision [the First Amendment] which guarantees a number of fundamental rights. 100 For Justice Wilson, the concern was to ensure consistency between the constraints on the Commonwealth and state legislatures: the argument that section 116 creates an individual guarantee of religious freedom, for example, lost much of its emotive and persuasive force when one must add but only as against the Commonwealth, 101 or considers that [no] similar constraint is imposed upon the legislatures of the States. 102 Similarly, a separationist view of the clause, for Justice Wilson, did not sit well with the form of s. 116, addressed as it is only to the Commonwealth Parliament, because such a norm could be readily subverted by state legislatures, all of which remain free to give... aid or support to religious bodies as they wis[h]. 103 A narrow reading of section 116, on the other hand, created clear consistency between the constitutional 97 See Attorney-General (Vic) ex rel. Black v. Commonwealth (1981) 146 CLR 559 (Wilson J) [hereinafter DOGS]. 98 (1943) 67 CLR (1981) 146 CLR Id. 31 (Barwick CJ), 18 (Gibbs J). 101 Id. 38 (Wilson J). 102 Id. 103 Id. 42 (Wilson J).
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