The Implication of Rights in the Australian Constitution - Research Paper Example

Student Name: Instructor name: Unit Name: Date: The Implication of Rights in the Australian Constitution 1. INTRODUCTION The creation of the Australian Constitution began in a series of meetings held during the 1890’s and was approved in referendums held by the people of the Australian colonies between 1898 – 1900. The draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 and Queen Victoria signed the Commission of Assent on 9 July 1900. Thereafter, the draft became law and was in full force on 1 January 1901. Aside from this Constitution, the Australia Act 1986 and the Statute of Westminster are also pieces of legislation that have constitutional significance in Australia.1 The Australian Constitution is often seen as a combination of the American presidential system and the English Westminster tradition. However, unlike other Anglophone countries, Australia is the only country that does not have a Bill of Rights in place. While the UK, New Zealand and Canada were hitherto without a Bill of Rights in their respective constitutions, they all, as of 1982, adopted either statutory or constitutional bills of rights. Australia, on its part, simply relies on common law and “implied rights2.” This situation has raised considerable debate with many arguing for the adoption of a Bill of Rights while some more conservative thinkers arguing that it would be of no consequence to Australia’s rights record. Nevertheless, what is increasingly becoming clear is that constitutional implications are far from being effective in protecting rights. This can only be achieved with a Bill of Rights. The following discussion will thus focus on analysing the express rights in the Australian Constitution; the implied rights; the effects of these rights on constitutional issues such as freedom of speech and human rights; and then make a comparative analysis of the benefits of having a bill of rights as opposed to not having one. The discussion will round up by making conclusions on the preferred constitutional situation for Australia. 2. RIGHTS IN THE CONSTITUTIONS A). Express Rights: As already established, the Australian Constitution does not have a Bill of Rights. Nevertheless, it would be deceptive and intellectually dishonest to claim that there are no rights specified within this document. The following is thus a break down of the express rights in the constitution and what they mean for the ordinary Australian. One of the most evident express rights is found in s51 (xxxi) of the Australian Constitution. It allows for the acquisition of property on just terms or, as it is stated, “the acquisition of property on just terms from any State or person for any purpose in respect of Constitution, the law which the Parliament has power to make laws."3 This sub- section expressly guarantees every Australian, regardless of age, sex, race/ ethnicity, religion or orientation, the constitutional right and power to own property. In addition, the freedom of trade is guaranteed by the constitution. This is found within s92 of the constitution and this section protects freedom of trade and commerce as well as “intercourse”4 (the movement of any kind across the State borders regardless of the purpose of movement). This ensures that trade between the different states is free and unhampered and that all people can travel across the country freely without fear of state intimidation. Further to that, the right to trial by jury is a right to be enjoyed by all Australians. It is enshrined in s80 of the constitution and is a very important right particularly with regards to basic human rights. The right to trial by jury in Victoria is additionally supported by various sections contained in the Victoria Crimes Act (1958) all of which generally state that any accused person who has been arrested on any charge and makes a not guilty plea “… shall without further form be deemed to have put himself upon the country for trial …”5 While jury by trials are important especially in cases involving racial/ ethnic minorities or where a judge may be partial, they only make up a tiny percentage of all court cases in Australia. For instance, the total amount of trial by jury cases is roughly 0.5 per cent and debates as to whether they should be used continue unabated. The right to a fair trial by jury can be seen in Jago v District Court of NSW6 and Dietrich v The Queen7. In both cases, the decision held was that in unfair trials, the accused could be tried by jury to diminish any form of partiality on the court’s part. This right is mainly extended in those cases in which the accused is charged with a very serious criminal offence or if the accused is Indigenous or if the accused cannot secure representation. Here, a diagnosis of the likely unfairness of the trial is necessary especially if the accused is unrepresented and if perhaps the trial does go ahead without representation, the conviction can be quashed on the basis that there was a miscarriage of justice. The right to religious freedom is likewise an express right in the Australian Constitution. It is found in s116 whereby “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.”8 As such, all Australian are free to adopt whatever religion they please without facing any form of discrimination or undue pressure to convert to another religion. Another express right is extended to out- of- State residents in s117. It states that “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.”9 It thus gives all Australians the freedom and right to move from one place to another and from one state to the next without discrimination regardless of what State they come from. Lastly, Apart from the above express rights contained right within the constitution, there are others found in the related legislations of other states. For instance, s46 of the Tasmanian Constitution which guarantees the right to freedom of religion and conscience.10 However, it has not been entrenched therefore it is not completely full proof. It can simply be amended by the Tasmanian Parliament by passing a law that would override the guarantee contained in s46 thereby offering very little real protection.11 B). Implied Rights: Evidently, the aforementioned express rights are very few and far between, thereby rendering them woefully insufficient in handling the various rights issues that arise in any country. If Australia was to rely solely on these express rights, she would certainly find herself in a serious legal quagmire indeed! As a result, she has to rely on the “implied rights” in addition to these limited express rights. Implied rights are those rights that are not explicitly defined or stated in the constitution and as such, they are subject to varied interpretations. Oftentimes, there are differing and conflicting interpretations of these implied rights to the extent that misinterpretations sometimes occur leading to gross miscarriages of justice. Freedom of political communication is one area where there exist implied rights since no section of the constitution expressly protects this right and it can be inferred from sections 128, 24, 64 and 7 of the Australian Constitution. In addition, the freedom of communication as concerns governmental and political issues results from the system of representative government enshrined in the Constitution ensures that members of the Senate as well as the House of Representatives are to be directly chosen by the people of the States and the Commonwealth. While it is widely recognised that the right to freedom of political communication does indeed exist in general, the recognition of this implied freedom of political communication has been subject to a lot of debate and controversy.12 A telling case that puts into question the certainty of the right to political communication is Lange v ABC13 where a unanimous decision by the judge sought to clarify the thin line between defamation laws and the implied freedom of political communication together with the applicability of this implied freedom to State affairs. The court ruled that implied freedom was an ongoing freedom that was not limited to election periods and thus people wee free to express their political opinions regardless of the ongoing political climate. Nevertheless, whereas this decision pin- pointed the textual basis for the implication, there remains a lingering uncertainty with regards to the scope and nature of this freedom. Other cases Subsequent cases such as APLA Limited v Legal Services Commissioner14 have showcased the restricted characteristic of the right to political communication. There thus needs to be a stronger constitutional basis upon which to protect such an important right. As pertaining freedom of movement, association and participation, again there are no rights that expressly guarantee Australians absolute freedom concerning the same. Nevertheless, the common law rights to a fair trial and “equality under the law” affords citizens some level of constitutional protection against abuse.15 Therefore, all Australians are free to move as they which; associate themselves with whomever they please; and participate freely in any activity as long as it is not illegal or criminal. This is not to say that such a guarantee is 100 per cent since, for instance, if one is seen associating with a terrorism suspect they are likely to be questioned severely by police and may even end up in prison! With regards to voting equality and voting rights, there is not any express right that guarantees every Australian a right to vote. Nevertheless, there is mention of voting within s41 of the constitution whereby no adult person is forbidden by the law from voting as long as the said person has a right to vote or has acquired the right to vote.16 This section thus implies that there exists a right to vote. That said, the wording of this section is so ambiguous and even implies that one has to “acquire” a right to vote. Therefore, it implies that there are some people who have a right to vote while others do not since they have not acquired the right to do so. This leaves room for discrimination and narrows the field of those with voting rights. In addition to these, the High Court has also adduced implied rights from Chapter 3 of the constitution (The Judicature). Chapter 3 defines and establishes federal judicial power from which many implied rights can be derived. For instance, the War Crimes Act Case of 1991. This case revolved around Ivan Polyukhovich who was being prosecuted for war crimes in Ukraine during World War 2. Justices Mary Gaudron and Sir William Dean ruled that the Commonwealth Parliament could not there was no law in which Parliament as opposed to a court could establish whether or not a person had committed a crime or offence.17 1. WHY AUSTRALIAN CONSTITUTION IS NOT THE EFFECTIVE WAY TO PROTECT INDIVIDUAL RIGHTS A). Limitation on Constitutional Implication The Australian constitution, being without a bill or charter of rights, puts the freedoms of individual rights at danger. The clear reason for this is that there are great limitations on constitutional implication. Logically, if a right is not specified in words, then there is room for misinterpretation and blatant miscarriages of justice. For a right to be guaranteed completely, it has to be written in words, something that a Bill of Rights would take care of easily. B). Uncertainties in Applying Various Approaches Section 51 (xxxi), which is supposed to guarantee freedom with regards to property rights, has been criticized as being plagued with uncertainties and ambiguities. These critics have rightly pointed out that there can be various legal interpretations of the terms "acquisition" and "just terms" by the High Court of Australia which can easily lead to the limiting of its protection of property rights.18 In addition, it operates at any time the Commonwealth makes a compulsory acquisition of property making it only a contingent guarantee as opposed to a more general constitutional freedom or right to enjoy property rights.19 In addition, the condition "purpose in respect of which the Parliament has power to make laws" means that every law that is supported by Section 51(xxxi) likewise has to be supported by at least one additional legislative power.20 By implication, this means that the section on itself is insufficient as a law that can guarantee Australians full land and property rights thereby making it woefully inadequate as an express right.21 There are also uncertainties as pertaining to the niggling issue of imprisonment without trial where the ability for a court to sentence a person to imprisonment without trial is shockingly against any tenets related to human rights and is a major reason behind the clamour for a Bill of Rights in Australia.22 The need for a guarantee against imprisonment without trial emerged recently when the Australian government failed to protest against David Hicks’ imprisonment without trial by the US government for a period five years.23 This case shocked the nation since, regardless of his offence; Mr. Hicks should have had the right to a fair trial before being unjustly subjected to such a lengthy imprisonment.24 Further to that, recent High Court decisions concerning immigration, race relations and racial discrimination have all the more illuminated the uncertainties of constitutional implications such as the obvious deficiencies in human rights protection with regards to racial discrimination as was seen in Hindmarsh Island Bridge Case.25 Section 51(xxvi) of the Constitution holds that the federal parliament has the power to ratify laws that concern peoples of any race for whom it is deemed necessary to make special laws.26 This particular case challenged concerned the legitimacy of the Hindmarsh Island Bridge Act 1997 (Cth) with regards to whether the race power is restricted to only passing laws that are only beneficial to one specific race as opposed to all races.27 Unfortunately, the High Court was split on this question and remains so and this case thus raises the concerns that section 51(xxvi) gives the Commonwealth Government constitutional powers to enact legislation that blatantly discriminates against racial minorities and or that favours a more “superior” race.28 Section 51(xxvi) thus is a very ambiguous section that further highlights uncertainties in approach with regards to the implied rights of the Australian Constitution. If there was a Bill of Rights, this state of uncertainty would be easily dealt with.29 Immigration law is likewise plagued by uncertainties where recent cases concerning immigration law have highlighted the inadequacy of Australian law.30 Examples of such cases include Al-Kateb v Godwin31 and Minister for Immigration and Multicultural Affairs v Al Khafaji32. The cases dealt with detention of non- citizens and their detention was justified using sections198, 189 and 196 of the Migration Act 1958 (Cth) and it was very likely that they were to be detained indefinitely barring legal intervention.33 Indefinite detention is illegal and contrary to international human rights principles and agreements of which Australia is party to.34 The court limited their interpretation to whether the Australian Constitution guaranteed the accused protection and not whether such protections were guaranteed internationally.35 They were not offered any protection under Australian law and as far as the court was concerned, the issue was not if the Australian rules dealing with detention were in agreement with international principles.36 The issue was simply restricted to if in fact these rights are expressly safeguarded under Australian law and evidently, they were not as a direct consequence of the inherent legal ambiguities.37 The impact of this piece of legislation on human rights proves that existing legislation is erroneous but as the law currently stands, the decision made was legal and led to the unlawful; detention of two human beings.38 Yet another uncertainty concerns voting rights since under the constitution, there are grave ambiguities as to who can or cannot vote whereby while there is the right to vote there also seems to be prohibitions placed whereby not all Australians are free to vote.39 A good illustration of this can be found in R v Pearson40. In this case, the decision made was that section 41 only gave voting rights to the Australians who had been allowed to vote in state elections prior to the ratification of the Commonwealth Franchise Act 1902.41 This effectively means that, in practice, not everyone has the right to vote and this is a scary proposition as it can be misused politically to prevent certain races or segments of society from voting so as to garner political gain.42 Likewise, section 80’s right to trial by jury is plagued with uncertainties since it only applies to trials where the accused person has been arraigned on indictment.43 The uncertainties surrounding this section are rooted in the language of this section and the drafting history causing the High Court to adopt a woefully narrow view on the right to trial by jury.44 This was aptly seen in cases like Kingswell v The Queen45, R v Archdall and Roskruge; Ex parte Carrigan and Brown46, and R v Cheng47. In these cases, the judgment was based on the notion that the responsibility of deciding whether or not a crime is indictable lies squarely at the feet of Parliament.48 4. BILL OF RIGHTS Australia is divided about the necessity of a Bill of Rights with some saying that it is the only way to ensure all rights are protected while others arguing that the Common Law was sufficient and that there is no proof that Australia has a worse human rights record than other countries with their own Bill of Rights.49 Both arguments have merit and the following analysis will thus weigh in on both sides of the spectrum and thereafter conclusively arrive at an answer as to whether or not there is a real need for a Bill of Rights in the Australian Constitution.50 To a certain extent, the common law has protected some civil rights such as the right to jury by trial.51 However, there are doubts as to whether a century- old common law has the ability to develop so as to deal with the ongoing and increasingly commonplace infringements of those rights.52 This very point was aptly examined in 1992 by the Chief Justice of South Australia, the Hon John Doyle and Ms Belinda Wells in 1992 where they concluded that, whereas the common law was largely good and had developed over the years, there were two limitations on its ability to protect Australians with regards to human rights.53 The first limitation is with regards to the principle of parliamentary supremacy.54 Within the context of the common law protection of civil rights, parliament may legislate to, restrict, alter or negate the protections created by the common law and this has been so particularly with regards to anti- terrorism laws.55 The second limitation has to do with how common law deals with the subject of rights in relation to identifying what is left after the restrictions and limitations that are imposed by law.56 For instance, freedom of speech is a right, but only in a residual sense since is subject to the application of the law of sedition, confidentiality, defamation, contempt, official secrets, and so on.57 If a Bill of Rights was in place, the right to freedom of speech would be clear- cut; deficient of any grey areas. Further to that, common law as it stands today is limiting in that, since Australian courts are increasingly sensitive towards people’s opinions on human rights, common law’s ability to independently make decisions has been greatly restricted.58 The Court has effectively become constrained to a declaration of rights as between the parties before it since this sensitivity to societal expectations means that no general statement of relevant rights can be developed in response to the individual case.59 Moreover, common law’s development relies on the doctrine of precedent.60 Since the courts base their judgements squarely on rights such as the right to freedom of speech or the right to a fair trial or right to expression, they have to use a balanced, approach by ensuring they are consistent by taking heed to judgments made in previous decisions.61 Another argument for the adoption of a bill of rights, the courts have too much power unto themselves.62 This thinking indeed does have merit since, without a constitution that clearly spells out the rights that people are entitled to the law is open to severe abuse and thus there has been a lot of debate concerning the extent to which courts should have the power to create new laws.63 This is constitutionally the exclusive function of Parliament yet this practise whereby the courts and judges make, develop and change the common law has been taking place from time immemorial to the extent that the modifications and developments carried out by judges have become as much a part of Australian law as are Acts of parliament!64 The judiciary and particularly the High Court has thus been heavily criticized by politicians, media outlets and the general public for attempts at making new laws, a function that is supposed to lie squarely at the feet of Parliament.65 The constitution has granted Parliament powers to change any laws that have been declared by a judge or the court and not the other way round.66 That said this “parliamentary superiority” over the courts also has its dangers and shortcomings since a situation where parliament has the last word opens up legislation up for abuse.67 In addition, human rights in Australia are only protected in an incomplete and piecemeal manner are always vulnerable to amendments in legislation as well as changes in government policy.68 They are also subject to the submissions that are given to the NSW Parliamentary Standing Committee on Law and Justice. The NSW Bill of Rights 2001 report showcases this vulnerability.69 This uncertainty can only be corrected through a Bill of Rights which by its very nature puts basic human rights beyond the grasp of mundane politics and, moreover, the glaring gaps in the present- day domestic human rights legislation framework would easily be addressed through a Bill of Rights. 70 On the other hand though, there are those who argue against the adoption of a Bill of Rights and one school of thought against the adoption of a Bill of right argues that the law already adequately protects Australians rights and freedoms.71 They cite pieces of legislation that have been adopted over the years and that effectively safeguard vulnerable people and minority groups from discrimination.72 In addition, the formation of statutory bodies like the Human Rights and Equal Opportunity Commission play a very active role in guaranteeing the protection of human rights in Australia.73 The involvement by Australia in all the major UN human rights treaties also shores up their claim that Australia is at the forefront of upholding human rights internationally.74 Moreover, Australia has a Standing parliamentary Committee and this committee is charged with analyzing all bills and scrutinizing them for compliance with human rights protections.75 The committee also gives ordinary Australians the right to take whatever complaints they may have to the UN Human Rights Committee.76 This allowance has had an impact in at least one case where the Commonwealth was encouraged to force Tasmania, one of its states, to amend its criminal code in favour of homosexuality whereby it had hitherto criminalised homosexual conduct.77 Another argument against the adoption of a Bill of Rights is that the common law itself protects against human rights abuses where, for instance, the common law includes the writ of habeas corpus that deals with the right against self incrimination and also false imprisonment.78 The courts themselves are qualified enough to handle human rights cases as was seen in Mabo where there was recognition of Aboriginal native title79. Another example was the recognition of the right to legal representation of an accused person even when the person in question has been accused of a serious crime in Dietrich v The Queen.80 The main crux of the argument, however, has been that there is no proof showing that Australia’s human rights record is has a worse than for any other country.81 In the 1950s, the High Court ruled that the attempt by the Commonwealth to ban the Communist party of Australia and further prosecute party members to be unconstitutional despite the absence of a Bill of Rights in the Constitution.82 6. CONCLUSION In a nutshell, there are two sides of the coin regarding this argument. However, it is evident that whereas the drawing of implications from the Constitution is a very useful way of ensuring that rights are protected in Australia, it is still an incomplete way of achieving this end. It only provides a constrained form of protection due to its inherent uncertainties and ambiguities. It can in no way be seen as being a replacement of an express Bill of Rights that comprehensively covers all areas that pertain to rights and their protection. Moreover, a referendum enacting a Bill of Rights that is endorsed by the Australian people would finally gives the law legitimacy; something that is currently lacking. Enacting a Bill of Rights will provide a firm foundation upon which the protection of rights will be explicit and secure, leaving no room for blatant human rights abuses. This will ensure that Australia will assume her rightful place in the international arena amongst nations that fully uphold human rights and will guarantee that Australians are assured of legal protection of their rights; both now and for future generations. BIBLIOGRAPHY ARTICLES/ BOOKS/ REPORTS 1. Allan, James, ‘Do the Right Thing’ Judging? The High Court of Australia in Al- Kateb, (2005), University of Queensland Law Journal, at 27 May, 2009 2. Alston, Philip, ‘Promoting human rights through bills of rights,’ (2003), New York, Oxford University Press. 3. Appleman, Laura I, ‘The Lost Meaning of the Jury Trial Right,’ (2008), Willamette University College of Law, Indiana Law Journal, Vol. 84 at 25 May, 2009 4. Asia Pacific Forum, ‘Australia: Ongoing Problems in Immigration Detention’ (2009), at 25 May, 2009. a. Australia Politics, ‘Text of the Constitution’ (2007). Accessed on the 25th of May, 2009 from http://australianpolitics.com/articles/constitution 5. Campbell, Tom, ‘Protecting Rights without a Bill of Rights: Institutional Performance And Reform in Australia’ (2006). Hampshire, Ashgate Publishing. 6. Cooray, Mark, ‘Judges Change The Law’ (1991) at 26 May, 2009 7. Cowdery, Nicholas, ‘Human Rights and the Criminal Process in Australia,’ (2001), at 27 May, 2009 8. Craven, Gregory, ‘Conversations with the constitution,’ (2004), Sydney, UNSW Press at 27 May, 2009 7. Dyer, Ron, ‘Anti-terror laws mean we need bill of rights,’ (2008), The Australian Business, at 27 May, 2009 8. Evans, Simon, ‘Property and the Drafting of the Australian Constitution,’ (2001), The Federal Law Review. Accessed on the 25th of May, 2009 from http://austlii.law.uts.edu.au/au/journals/FedLRev/2001/6.html 9. Francis, Charles, ‘A Bill Of Rights Will Diminish Our Freedoms,’ (2009), News Weekly at 27 May, 2009 10. French, Robert et.al, ‘Reflections on the Australian Constitution,’ (2003), Sydney, The Federation Press. 11. Gray, Anthony, ‘Mockery and the Right to Trial by Jury’ (2008) at 27 May, 2009 12. Irving, Helen, ‘A Victorian Constitution In The Twenty-First Century: The Origins of Australia’s Constitution and Its Challenges Today,’ (2004). Hong Kong University. Accessed on the 23rd of May, 2009 from http://www.hku.hk/ccpl/events/otherevents/documents/irvingpaper.doc 13. Kirby, Michael (Justice), ‘International Law - The Impact On National Constitutions’, (2005), at 14. Lindell, Geoffrey and Zines, Leslie, ‘Future directions in Australian constitutional Law,’ (1994), Sydney, Federation Press. 15. Malcolm, David (Justice), ‘Does Australia Need a Bill of Rights?’ (1998). Murdoch University Electronic Journal of Law, Vol 5, No 3. Accessed on the 24th of May, 2009 from http://www.safecom.org.au/malcolm.htm#n8 15. Malcolm, David ‘How would a Bill of Rights affect the Australian justice system?’ (2000), Online Opinion, at 26 May, 2009 16. Maynes, Sue ‘Farmers Land Ownership Rights in Australia’ (2007). at 24 May, 2009. 17. Monteleone, Rudy, ‘Jurors as the Courts’ Ambassadors to the Community,’ (2007). Juries Commissioners Office. Accessed on the 25th of May, 2009 from http://law.anu.edu.au/nissl/Monteleone.pdf 18. Prince, Peter ‘The High Court and indefinite detention: towards a national bill of rights?’ (2004), Parliament of Australia Parliamentary Library at 25 May, 2009. 19. Sales, Leigh, ‘Detainee 002: The Case of David Hicks’ (2007). Melbourne, Melbourne University Publishing. http://books.google.co.ke/books?id=0FOW64oXsQkC&dq=DETAINEE+002:+THE+CASE+OF+DAVID+HICKS+BY+LEIGH+SALES&printsec=frontcover&source=bl&ots=4I8DzAPQvX&sig=UtQRDTr3_xtGVh4lFMB0w3KC1vc&hl=en&ei=8CctSr-HA4ST_QbHvJH1Cg&sa=X&oi=book_result&ct=result&resnum=1#PPR10,M1 at 25 May, 2009. 20. Saunders, Cheryl, ‘It's Your Constitution,’ (2003), Sydney, The Federation Press. 21. Studyworld, ‘The High Court's Use of the Doctrine of Precedent, (1996), 22. The UK Statute Law Database, ‘Commonwealth of Australia Constitution Act 1900 (c. 12),’ (2006). Accessed on the 23rd of May, 2009 from http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1066401 23. Williams, George, ‘A Bill of Rights for Australia,’ (2000), Sydney, UNSW Press. 24. Williams, George ‘The Australia Constitution and Human Rights: A Centenary View’ (2001) at 26 May, 2009. 25. Williams, George, ‘Does Australia Need a Bill of Rights,’ (2007). Accessed on the 24th of May, 2009 from http://www.nswbar.asn.au/docs/resources/lectures/bill_rights.pdf 26. Webb, Rosemary, ‘Politics Has Replaced Justice’ (2006). The long imprisonment of David Hicks (Presentation), Southern Cross University. Accessed on the 24th of May, 2009 from http://epubs.scu.edu.au/cgi/viewcontent.cgi?article=1138&context=sass_pubs 27. Yeat, Mary Ann, ‘Criminal Justice Without a Bill of Rights’ (2001), The International Society for the Reform of Criminal Law, at 26 May, 2009. 28. Zayas, Alfred de, ‘Human Rights and Indefinite Detention,’ (2004) at 27 May, 2009. 29. Zines, Leslie, ‘The High Court and the Constitution’ (2008), Sydney, Federation Press. at 26 May, 2009. CASE LAW 30. Al-Kateb v Godwin (2004) 219 CLR 562; 78 ALJR 1099; (2004) 208 ALR 124 31. APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 32. Dietrich v The Queen (1992) 177 CLR 292 33. Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989) 34. Kartinyeri v Commonwealth of Australia (Hindmarsh Island Bridge Case) (1998) 195 CLR 337 35. Kingswell v The Queen (1985) 159 CLR 264. 36. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818 (8 July 1997) 37. Mabo & Ors v Queensland (No.2) (1992) 175 CLR 1 38. Minister of Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664; 78 ALJR 1156; (2004) 208 ALR 201 39. R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 40. R v Cheng (2000) 203 CLR 248 41. R v Cheng (2000) 203 CLR 248, per McHugh J at 295 42. R v Pearson; ex parte Sipka (1983) 152 CLR 254 LEGISLATION 43. The Age Discrimination Act 2004 (Cth) 44. The Australian Constitution 45. The Commonwealth Franchise Act 1902 46. The Disability Discrimination Act 1992 (Cth) 47. The Migration Act 1958 (Cth) 48. The Racial Discrimination Act 1975 (Cth) 49. The Sex Discrimination Act 1984 (Cth) Read More