DOCSLIB.ORG

The Role of International Standards in Australian Courts

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Role of International Standards in Australian Courts f 704 The Role of International Standards II in Australian Courts· i Han Justice Michael Kirby AC CMG- ,"-Ie'N perspectives ;~ )1 Over the past decade, r have had the privilege of working in a nwnber of the :' 3<'enciesagencies of the United Nations. Necessarily. this work has given me a p~rspecIive paspecIive of the weaknesses and inefficiencies of the United Nations. But it 1>1' has also made clear to me its utility in furthering the grand objectives conc~ivedconceived during the Second World War and carried into effect by the UN Charter in 1945. Working for the United Nations has influenced my approach to the role of internationalintemational law both generally and in relation to Australian law. It has sharpened my perception both of the potential of international law to assist j the development of Australian law and of the difficulty wnichwhich that potentialpotenrial I~;;'1 1'.···J~i presents for both legal theory and practical implementation. I" In ways which I have described elsewhere, my eyes were opened to the ['\1, . methods by which internationalintemational human rightS treaties could be utilised in the r< daily work of the courts by my participation in a conference in Bangaiore. India.rndia. seven years ago. 1 The purpose of this paper is; to[0 describe the pi Bangalore Principles; to illustrate their growing acceptance in Australian ' courtsccurts and in other countries of the common law; and to demonstrate the I,~ many practical instances in which international human rights law can be of assistance in understanding and developing Australian common and stamte law. IiI.t i 11 L Adapted. in ;:m;:m;t..... " frGm :l paper presented by t..1ew1c :luthot:luthor to th~ N~w Zealand I Judges' Conference. March 1995. "The Impact of International Human Rights :--.lorrns-Law~orrns-Law Urjd~rgoing Evolution".Evolution", President of the NSW Court of Appeal and Chainnan of the Executive i,1 Committee of the International Commission of Jurists. I.'J :-ADMD Kirby,Kirby. "The Austraiian Use of International Human Rights Nonns:Norms: From I" Bangalore to Balliol-A View from the Antipodes" (1993) 16 University of I' N~w Sourh Wales Law JoumoJ.363.JoumaJ.363. I' i:i1 ~ , ;1 II] ! r "~ ! 7%7% 22 Treaty-,\.{aldngTreaty",\.{aking andandAustralia Australia TheThe BangaloreBangalore PrinciplesPrinciples TheThe traditionaltraditional viewview ofof mostmost commoncommon lawlaw countriescountries hashas beenbeen thatthat intemationallawintemationallaw isis notnot partpart ofofdomestic domestic law.law. BlackstoneBlackstone inin hishis Commentaries,Commentaries, suggestedsuggested that:that: TheThe lawlaw ofofnations nations (whenever(whenever anyany questionquestion arisesarises whichwhich isis properlyproperly thethe objectobject ofof itsits jurisdiction)jurisdiction) isis herehere [in[in England]England] adoptedadopted inin itsits fullfull extentextent byby thethe commoncommon law.law. andand isis heldheld toto bebe partpart ofofthe the lawlaw ofofthe the landJand22 SaveSave forfor thethe UnitedUnited States,States, wherewhere BlackstoneBlackstone hadhad aa profoundprofound influence.influence. thisthis viewview camecame toto bebe regarded,regarded, virtuallyvirtually universally,universally, asas beingbeing "without"without foundation"}foundation"} InIn Australia,Australia, MasonMason JJ explainedexplained thethe .traditional.traditional positionposition inin 19821982 inin thesethese terms:terms: ItIt isis aa well settledsettled principleprinciple ofof thethe commoncommon lawlaw thatthat aa treatytreaty notnot tennioatingtennioating aa statesute ofof war hashas nono legallegal effecteffect uponupon thethe rightsrights andand dutiesduties ofof AustralianAustralian citizenscitizens andand isis notnot incorporatedincorporated intointo Australian lawlaw 0000 itsits ratificationratification byby Australia... ... ToTo achieveachieve thisthis resultresult thethe provisionsprovisions havehave toto bebe enactedenacted asas partpart ofof ourour domesticdomestic law,law, whether byby aa Commonwealth oror StateState statute,statute, SectionSection 51(x:dx)51(xxix) [the[the externalexternal affairsaffairs power]power] armsarms thethe CommonweaJthCommonwealth ParliamentParliament."to...to legislatelegislate soso asas toto incorporateincorporate intointo ourour lawlaw thethe provisionsprovisions ofof [international[international conventions]:~conventions]:~ More recently,recently, however,however, aa newnew recognitionrecognition hashas comecome aboutabout ofofthe the useuse thatthat may be made by judgesjudges of internationalmternational humanhuman rightsrights principles andand theirtheir exposition by thethe courts, tribunalstribunals and other bodies established toto givegive themthem content and effect. This reflectsreflects both thethe growing body of internationalinternational humanhuman rightsrights lawlaw and thethe instruments,instruments. both regionalregional and international,imernational, which givegive effect toto thatthat law.law. ItIt furthennorefurthennore recognisesrecognises thethe importanceimportance ofafthethe contentcontent ofof thosethose laws.laws, An expression thatthat seems toto encapsulate thethe modern approachapproach was given inin February 1988 inin Bangalore, IndiaIndia inin thethe so-called Banga/ore Principles.Principles, The BangaloreBangaiore PrincipJes5 state, inin effect, that:that: (I)(1) International law,law, whether human rights nonns or otherwise, isis not, as such, part of domestic law in most common law countries; (2) Such law does not become partparr of domestic law until Parliament so enacts or the judges, as another source of law~making,law-making, declare thethe norms thereby established to be part of domestic law; 2 Quoted in Chow Hung Ching v The King (1948) 77 CLR 449 at 477. J3 Note 2 above,above. at 477. 4 Koowarta v Bjelke-PetersenBjelke.Petersen and Drs (1982) 153 CLR 168 at 224f.224f, See comment [1994] NZLJ 433.at 434. See Kirby, n 1 above.above, at 373f • A '. .......... " " 7fJG7'1G Role a/International Standards inin Aust1'alianAustl"alian Courrs 33 (3)(3) The jUdge~judges will not do .50so auto.matic~lIy.automatically, simply because the.the nonnnonn isis Pa:tpart ofintematlOnallawofintemationallaw or ISis mentioned min a treaty,treaty, even one ratifiedratified byby theirtheir own count:ry;country; (4)(4) But ifif an issueissue of uncertainty arises, as by a lacunalacuna inin thethe commoncommon law,law, obscurityobscuriry inin itsits meaning or ambiguity inin a relevantrelevant starute. aa judgejudge may seek guidance inin thethe general principles of internationalinternational law,law, asas acceptedaccepted by thethe community ofnations; and (5)(5) From thisthis source material.material, thethe judgejudge may ascertain and declare what thethe relevantrelevant rulerule of domestic lawlaw is.is. ItIt isis thethe action ofof thethe jUdge,judge, incorporatingincorporating thethe rulerule intointo domestic law,law, which makes itit partpart ofof domestic law.Jaw. Some lawyers. and not a few judges.judges, brought up in the tradition of thethe strict divide between international and municipal law, were inclined at first toto regard the Bangalore Principles as erroneous.6 They regarded with scepticism the amount of assistance which could be derived from an international treaty,treaty, other international law or the pronouncements of international or regionalregional couns, tribunals and committees. High judicial pronouncements In the seven years since Bangalore,Bangaiore, however, something of a sea change has come over the approach of couns in Australia,Australia. as well as in New Zealand and England. The clearest indication of the change in Australia can be foundfound inin thethe remarks of Brennan J (with the concurrence of Mason CJ and McHugh J) inin Maho v Queensland [No 2].7 In the course of explaining why a discriminatory doctrine, such as that of terra nullius (which refusedrefused toto recognise the rights and interests in land of the indigenous inhabitants of a settled colony such as Australia) could no longer be accepted as part of thethe law of Australia, Brennan J said: The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of the international remedies to individuals pursuant to Australia's accession to the Optional Pr%ealtoPr%eollo the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does notnOl necessarily confonn with international law.law, but international law is a legitimate and See ego Samuels JA in Jagolago v District Court of New South Wales and Ors (1988) 12 NSWLR 558 (CA) at 580f. (1992) 175 CLR I. , .... ' ..... 7'17 4 Treaty-Making and Australia important influence on the development of the common law.law, especially when international law declares the existence of universal human rights. 8 To similar effect were the remarks of the English Coun of Appeal in Derbyshire County Council v Times Newspapers Limited,9 a decision later substantially affrnnedaffmned by the House of Lords.Lords.!OlO In a sense, it paved the way for the reasoning of Brennan J in Mabo and was referred to by him. In the course of his reasoning on a libel question. Balcombe LJL1 referred to article 10 of the European Convention on Hwnan Rights to which the United Kingdom is a party. That article relates to freedom of expression. His Lordship observed: Article 10 has not
Load more

Recommended publications
  • Constitutionally Protected Due Process and the Use of Criminal Intelligence Provisions 125
    2014 Constitutionally Protected Due Process and the Use of Criminal Intelligence Provisions 125 CONSTITUTIONALLY PROTECTED DUE PROCESS AND THE USE OF CRIMINAL INTELLIGENCE PROVISIONS ANTHONY GRAY * I INTRODUCTION Demands for government response to perceived threats to national security and personal safety, government incentives to appear ‘tough on crime’ and the absence of an express bill of rights have combined to fuel ever-increasing government intrusions on fundamental rights and liberties that were once thought to be beyond reproach. Recent examples in the Australian context have included property confiscation laws, in the absence of a specific allegation or finding of guilt, reverse onus provisions, curtailment of the right to silence, criminalisation of mere acts of association, and executive detention of individuals. A current area of controversy is the use of ‘closed court’ processes in particular cases, aligned with the adoption of a court process whereby the person affected by the proceeding may lose the opportunity to see or hear the evidence being led against them, and with that the opportunity to cross-examine the witnesses being used. These types of laws offend several fundamental rights, but are claimed by governments to be necessary to protect witnesses and secure important evidence. For ease of reference, and because this is the phrasing used by the relevant legislation in Australia, I will refer to these as ‘criminal intelligence provisions’. This type of legislation raises broader questions, specifically the extent to which a ‘due process’ principle may be derived from Chapter III of the Constitution (‘Chapter III’), and the extent to which such a principle might be engaged to preserve and protect fundamental human rights, such as those affected by ‘criminal intelligence’ type provisions.
    [Show full text]
  • 8. Fair Trial
    8. Fair Trial Contents Summary 220 A common law right 221 Attributes of a fair trial 223 Practical justice 224 Protections from statutory encroachment 226 Australian Constitution 226 Principle of legality 229 International law 229 Bills of rights 229 Justifications for limits on fair trial rights 230 Open justice 231 Limitations on open justice 232 General powers of the courts 234 National security 235 Witness protection 236 Other laws 237 Right to obtain and adduce evidence and confront witnesses 237 Limitations 238 Hearsay evidence 239 Vulnerable witnesses 240 Evidentiary certificates 241 Public interest immunity and national security information 242 Privileges 245 Right to a lawyer 247 Laws that limit legal representation 248 Legal aid and access to justice 250 Appeal from acquittal 251 Laws that allow an appeal from an acquittal 252 Other laws 254 Trial by jury 255 Torture evidence from other countries 255 Civil penalty provisions that should be criminal 256 Conclusion 257 220 Traditional Rights and Freedoms Summary 8.1 The right to a fair trial has been described as ‘a central pillar of our criminal justice system’,1 ‘fundamental and absolute’,2 and a ‘cardinal requirement of the rule of law’.3 8.2 A fair trial is designed to prevent innocent people from being convicted of crimes. It protects life, liberty, property, reputation and other fundamental rights and interests. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’.4 Fairness also gives a trial integrity and moral legitimacy or authority,5 and maintains public confidence in the judicial system.
    [Show full text]
  • Australian Bar Review Ten Years in the High Court
    AUSTRALIAN BAR REVIEW TEN YEARS IN THE HIGH COURT - CONTINUITY & CHANGE* The Hon Justice Michael Kirby AC CMG** WHAT IS IT REALLY LIKE? It is almost ten years since my appointment as a Justice of the High Court of Australia. Not long after I had first taken my seat, I addressed a constitutional law class at the University of Sydney. My lecture was titled "What Is It Really Like to be a Justice of the High Court of Australia?". The lecture was later published1. Now, from the advantage of a decade's service, I will describe the changes I have witnessed. A barrister who keeps abreast of the case law necessarily enters the minds of the Justices of the High Court and lives, in a sense, with their values, attitudes and habits of reasoning. Inevitably, not a few speculate on what it would be like to live and work in the great * Text of a talk given to the Bar Readers course, NSW Bar Association, Sydney, 17 October 2005. ** Justice of the High Court of Australia. 1 (1997) 19 Sydney Law Review 514. 2. courthouse in Canberra, by Lake Burley Griffin. There is nothing wrong with aspiration. Some, more ambitious, imagine themselves, decades hence, occupying one of the chambers on the ninth level of that building. However, the numbers called are very few2. In the history of the Court, I was but the fortieth Justice. When Justice McHugh leaves the Court on 31 October 2005, Justice Susan Crennan, the forty-fifth Justice will be sworn3. Forty-five is not many in little more than a century.
    [Show full text]
  • Scanned Document
    Alert and Alarmed: The National Security Information Act (Cth)(2004) ANTHONY GRAY* Introduction In the five years since the events of 11 September 2001, we have seen an lmprecedented number ofCommonwealth and State Acts passed based on the supposed view that they are necessary in order to combat the threat of terrorism. Such Acts have the potential, depending on how they are interpreted by our courts, to greatly impact on the kind of society that we live in, and challenge long held fundamental common law rights and liberties that Australians tend to take for granted. Of course, the question of balancing community protection on the one hand with preserving civil liberties that go to the heart of the nature of our society on the other is a matter for Parliament. However, given our long tradition of judicial review in Australia it is submitted that the High COUli has a role to play in assessing the constitutional validity of such measures,l and indirectly in upholding civil liberties, particularly in the absence of an express Bill of Rights in the Australian Constitution. The wliter submits that some ofthe aspects ofthe recent anti-terrorism legislation might find some objections in the High Court. A fmiher complication for the Federal Government in this context is the ability of the defence power to support the raft of legislation enacted post 2001. Of course, the defence power is at its greatest during times of 'war'. In the past, whether or not Australia was at 'war' has been an easy question to answer - Australia was clearly at 'war' during both of the World Wars.
    [Show full text]
  • Justice Susan Kiefel AC1 Professor Cheryl Saunders2
    1. AUSTRALIA The independence of a meritorious elite: the government of judges and democracy COUNTRY REPORT: AUSTRALIA The Hon Justice Susan Kiefel AC1 Professor Cheryl Saunders2 1. Scope The central question identified for this theme is "if justice is to be done in the name of the community, how far do the decision-makers need to reflect the community, either in their profile or in the opinions they espouse?" This report responds to the question comparatively, from the perspective of Australia. It must be acknowledged at the outset that an enquiry as to whether judges ought to "reflect the community" immediately raises the questions: reflect whom and reflect what? One may speak descriptively of a court being composed of judges who might reflect the composition of a society such as Australia, or one may speak substantively, of what judges say. Here, judges may be expected to reflect the values of society generally (assuming there to be such values) or to advocate the interests of the groups from which they are drawn. In what they say in their judgments, they might be expected to be responsive to pressures and popular demands. Professor Pitkin in her influential work "The Concept of Representation"3 identifies various different ways in which representation can be understood. The versions of representation to which the question for this theme is directed are only two of these. In the context of judging, formalistic or symbolic representation, to use Pitkin's terms, may also be relevant in some form.4 As Pitkin notes, the concept of representation depends partly on the context in which it is used.
    [Show full text]
  • Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty
    —M.U.L.R- 09 Kirby (prepress complete)02.doc —— page 576 of 18 JUDICIAL ACTIVISM: POWER WITHOUT RESPONSIBILITY? NO, APPROPRIATE ACTIVISM CONFORMING TO DUTY THE HON JUSTICE MICHAEL KIRBY AC CMG∗ [This article was originally delivered as a contribution to a conversazione held in 2005 at the Melbourne University Law School in which judges, legal academics, journalists and others discussed issues of ‘judicial activism’. Developing ideas expressed in his 2003 Hamlyn Lectures on the same topic, the author asserts that creativity has always been part of the judicial function and duty in common law countries. He illustrates this statement by reference to the Australian Communist Party Case, and specifically the reasons of Dixon J, often cited as the exemplar of judicial restraint. He suggests that ‘judicial activism’ has become code language for denouncing important judicial decisions with which conservative critics disagree. By reference to High Court decisions on the meaning of ‘jury’ in s 80 of the Australian Constitution and cases on constitutional free speech, legal defence of criminal accused and native title, he explains the necessities and justifications of some judicial creativity. He illustrates the dangers of a mind-lock of strict textualism and the futility of media and political bullying of judges who simply do their duty. Finally he calls for greater civility in the language of discourse on the proper limits of judicial decision-making.] CONTENTS I Nostalgic Thoughts................................................................................................
    [Show full text]
  • International Human Rights and the High Court of Australia
    QUT Digital Repository: http://eprints.qut.edu.au/ Fitzgerald, Brian F. (1994) International human rights and the High Court of Australia. James Cook University Law Review, 1. pp. 78-102. © Copyright 1994 Brian Fitzgerald 1 )CULR International Human Rights and the High Court 79 importance ofinternationalinitiatives regarding human rights to our prin­ ciples of constitutionalism. This is a topic that animates courts through­ out the common law world and is one that highlights the tension that international law creates when it seeks to enter the realm of the 'local'. Recent events emanating from Nick Toonen's 'communication" to the United Nations Human Rights Committee suggest that many Austral­ ians are sensitive about non-Australians resolving issues which go to the very heart of Australian constitutionalism (Le. the way we constitute). This article seeks to avoid such a concern by examining how Australian courts can legitimately undertake the role of transforming international human rights into our principles of constitutionalism. INTERNATIONAL LAW IN AUSTRALIA The most obvious way to introduce a discussion about the internationali­ sation ofAustralian law is to define the way in which Australian law has, up until now, managed and received influence from the international arena. Article 38 of the Statute of the International Court ofJustice provides that the International Court of Justice (ICJ) in adjudicating disputes shall ap­ ply (have resort to): treaty or conventional law, custo!"ary international law, general principles of law recognised by civilised nations and judicial decisions and the writings ofeminent publicists. This directive to the ICJ has tradition­ ally been regarded as an authoritative summary of the sources of interna­ tionallaw.
    [Show full text]
  • Amillennial View from the High Court of Australia the Hon Justice Michael
    Macquarie Law Journal (2001) Vol 1 No 1 1 LAW AT CENTURY’S END - A MILLENNIAL VIEW FROM THE HIGH COURT OF AUSTRALIA * THE HON JUSTICE MICHAEL KIRBY AC CMG IN THE BEGINNING When I sit in the No 1 courtroom in Canberra, it is impossible to escape the presence of the three original Justices of the High Court - Chief Justice Griffith, Justice Barton and Justice O’Connor. Their huge portraits are the only ones which hang in that room. Their presence is palpable. They remind the present Justices, and all who come into the room, of the continuity of the law and of the Court. The portrait of Griffith, copied by Sir William Dargie from the original which hangs in the Supreme Court of Queensland (where he had also been Chief Justice), makes him appear somewhat lifeless, formal, remote. Barton with his cigar looks what he was - an urbane, comfortable, efficient lawyer who helped hammer the Australian federation together and became its first Prime Minister. O’Connor has a sensitive Irish face which belies the austere robes and tricorn in which he presents himself. In moments of reverie, I ask myself what they would say to us if they could come back and witness the product of their handiwork a century later? What would they feel about the role of the Court which they helped to establish? Would a week in our chairs seem very different from the same interval in October 1903 when they first assumed office? As the world approaches a new millennium, the federation its centenary and the Court the celebrations of its first hundred years, it is natural to look back in this way; and to look forward.
    [Show full text]
  • Australia's Growing Debt to the European Court of Human Rights
    MONASH UNIVERSITY FACULTY OF LAW THE SEVENTH FIAT JUSTICIA LECTURE AUSTRALIA’S GROWING DEBT TO THE EUROPEAN COURT OF * HUMAN RIGHTS ** The Hon Justice Michael Kirby AC CMG ABSTRACT An interesting recent development in judicial reasoning in Australia has been the growing recourse by judges to decisions and reasons of the European Court of Human Rights. The author points to the use of a decision of that court by the High Court of Australia in the prisoners' voting rights case of 2007: Roach v AEC. He then examines the citation of reasons of the European Court of Human Rights in Australia from early days in the "free speech" cases up to the present time. The citations have ranged from cases on the right to a fair trial; migration law; family law; and a range of other topics. With the enactment of human rights statutes in Australia, this use by Australian courts of decisions of the European Court of Human Rights is bound to expand. THE AUSTRALIAN DEBT * A part of this article was previously published in S Breitenmoser et al (eds), Human Rights, Democracy and the Rule of Law: Liber amirocum Luzius Wildhaber, Dike/Nomos, Bazel, 2007. The article has been revised and updated. ** Justice of the High Court of Australia. The author acknowledges the assistance of Mrs Lorraine Finlay and Ms Anna Gordon, successively legal research officers in the Library of the High Court of Australia. 2. The European Court of Human Rights has the primary responsibility for deciding the meaning and application of the European Convention on Human Rights.
    [Show full text]
  • A Proposal for an Australian Bill of Rights Based on Customary International Law
    Gussen 3/30/21 10:19 AM A PROPOSAL FOR AN AUSTRALIAN BILL OF RIGHTS BASED ON CUSTOMARY INTERNATIONAL LAW Benjamen Franklen Gussen* Recent dicta from the High Court of Australia (HCA) have refocused attention on the lack of an Australian Bill of Human Rights.1 As a result, an Australian Bill of Human Rights was introduced in the House of Representatives,2 although similar bills have been consistently rejected by the Commonwealth Parliament for over sixty years. 3 More alarmingly, international agreements and obligations that might have provided some protection to Australians are routinely ignored.4 The ongoing constitutionalisation of international law suggests that human rights protection in Australia should focus on harmonization with customary international law (CIL), rather than on adopting a cherry-picking approach to human rights protection, as seen in Australia’s subnational instruments, and in proposed Commonwealth legislation.5 This proposal is for a Bill that consolidates existing federal human rights instruments, incorporates CIL into domestic law, and allows for the evolution of these protections in parallel with CIL by refraining from any enumeration of protected rights. In practice, the proposed Bill signals the HCA jurisdiction in developing the common law according to CIL. CIL jurisprudence ensures * Dr. Benjamen Gussen is a constitutional jurist and the President of the Australian Law and Economics Association; see AUSTL. L. AND ECON. ASSOC., www.austlea.org (last visited Oct. 15, 2020). He is affiliated with the Swinburne University of Technology School of Law. 1 Comcare v Banerji [2019] HCA 23 (Austl.). 2 Australian Bill of Rights Bill 2019 (Cth) (Austl.).
    [Show full text]
  • Australian International Law Journal
    The Charter of Rights Debate: A Battle of the Models IRINA KOLODIZNER Abstract Since the Hon Robert McClelland launched the National Human Rights Consultation on 10 December 2008, policy and legislative circles have been abuzz with talk of shoring up Australia’s commitment to the protection of human rights and the potential enactment of a Charter of Rights. This article seeks to contribute to the debate by comparing the two dominant models of statutory Charter mechanism that have been on the policy table: the dialogue model, which parallels statutory models adopted in the UK as well as domestically in Victoria and the ACT; and the model based on the Canadian Bill of Rights, proffered by the Hon Michael McHugh AC QC. Ultimately, utilising the issue of asylum seekers as a case in point, it is concluded that while the dialogue model carries greater conceptual weight, the model proffered by the Hon Michael McHugh is a more practical model of redress for individual human rights grievances. Introduction Since the enactment of the Human Rights Act 1998 (UK) (‘HRA’) in the UK, Australia remains the only common law jurisdiction without a comprehensive system of legislative or constitutional human rights protection.1 In an effort to redress this state of affairs, on 10 December 2008, Federal Attorney-General Robert McClelland launched the National Human Rights Consultation, signalling the Federal Government’s commitment to exploring and addressing the gaps in Australia’s human rights protection through a range of measures, including the potential enactment of a federal statutory charter of rights (‘Charter’). On 21 April 2009, the Hon Robert McClelland announced the end product of this exploration — the establishment of a National Human Rights Framework, which reiterated the Federal Government’s commitment to promoting and protecting human rights, while rejecting the enactment of a legislative Charter.
    [Show full text]
  • Imagereal Capture
    LEGAL PROTECTION FOR FUNDAMENTAL RIGHTS AND FREEDOMS: EUROPEAN LESSONS FOR AUSTRALIA? Timothy H Jones* I would say, without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the world.l [M]ost citizens of the [Euro~ean Union] enjoy more protection of their rights than do the people of the lucky country. I INTRODUCTION ( The adequacy of the legal protection given to fundamental rights and freedoms is a topic of concern in both Australia and Britain, two jurisdictions which share a common legal heritage.3 Both have witnessed extensive debates in recent times about the desirability or otherwise of a Bill of Rights designed to protect human rights.4 The issue I I " i * Faculty of Law, University of Manchester. A number of academic colleagues provided l, advice and assistance at various stages in the development of this article. I would like to r express my appreciation to Rodney Brazier, Hilary Charlesworth, Sean Doran, Neil Duxbury, Jeffrey Goldsworthy, Joseph Jaconelli, Perry Keller, Martin Loughlin and Stephen Weatherill. None of these individuals should be assumed to endorse my views. An early L version of this paper was presented at a symposium, "From Singapore to Maastricht: Britain and Australia, 1942-1992", held under the auspices of the Centre for Australian ( Studies in Wales, St David's University College, Lampeter, in July 1993. The participants in this inter-disciplinary colloquium provided welcome encouragement. t 1 >) Sir Robert Menzies, Central Power in the Australian Commonwealth: An Examination of the r Growth of Commonwealth Power in the Australian Federation (1967) -at 54.
    [Show full text]