high court of australia

1. Characteristics of the structure and content of the Australian Federal Constitution

The 1900 Australian Federal Constitution has its own characteristics in terms of structure and content. These characteristics have had a profound impact on the Australian High Court's use of the Constitution to protect civil rights.

(1) Formal characteristics: The Constitution does not contain a special chapter "Bill of Rights", nor does it formulate a special human rights law.

The Australian Federal Constitution is a written constitution, but there is no special chapter "Bill of Rights" in the constitution, and there is no separate special "Human Rights Law". This is clearly different from the US, UK, Canada and New Zealand. The UK is a typical country with an unwritten constitution in the world, but under pressure to comply with the European Convention on Human Rights, it formulated a special Human Rights Act in 1998 and implemented it on February 10, 2000. The original text of the U.S. Federal Constitution did not include a special chapter "Bill of Rights", but in 1789, ten amendments, the "Bill of Rights", were formulated, and they were gradually added later. Canada's 1982 Constitution contains a dedicated Charter of Rights and Freedoms. New Zealand enacted the Bill of Rights Act 1990. Even some states in Australia have enacted human rights laws or submitted special human rights reports. For example, the Australian Capital Territory promulgated the Australian Capital Territory Human Rights Act 2004. New South Wales enacted the "New South Wales Bill of Rights Report" (A NSW Bill of Rights Report) in 2001.

(2) Content characteristics: power allocation, limited rights.

Due to the special background, the main content of the Australian Federal Constitution is to allocate federal and state powers, that is, to adjust the distribution of powers, including the relationship between horizontal legislative power, executive power and judicial power; vertical federal and the division of powers among the states. Article 128 of the Constitution and most of the nine amendments are also about the division of powers. It can be said that the Australian Federal Constitution is a power allocation constitution. Scholars call it “the central function of the constitution is to allocate government power.” [1] The current constitution only contains limited express rights. [2] For this reason, the Australian High Court is far from being able to play a more proactive role in protecting human rights than the U.S. Supreme Court. However, the High Court has made great efforts in using the Constitution to protect human rights.

2. Four ways for the High Court to use the Constitution to protect rights

There are four main ways for the Australian High Court to use the Constitution to protect human rights: using the power clauses in the Constitution to resolve power disputes , indirectly protecting human rights; applying the express rights and freedoms in the Constitution to directly protect human rights; trying to discover the tacit rights and freedoms contained in the Constitution to expand the space for protecting human rights; and also using the provisions in the Constitution to give full play to the international human rights ratified by the country treaties to protect human rights.

(1) Indirect protection of rights through the application of constitutional power provisions

This is an important way for the Australian High Court to use the constitution to protect citizens’ rights. The Constitution clearly enumerates the scope of the legislative power of the Federal Parliament, and the focus of the Constitution is to limit the power of the Federal Parliament. The following principles are the main criteria for determining the constitutionality of federal legislation and are also the main legislative powers of the Federal Parliament. The courts use these provisions to review the constitutionality of parliamentary legislation, thereby achieving the result of protecting citizens' rights.

1. Federal legislation must be within the scope of legislative powers granted by the Constitution.

The following articles of the Federal Constitution stipulate the legislative scope of the federation, which delimits the exercise of powers by the legislature:

(1) The powers enumerated in Article 51 of the Constitution,** *There are 39 items. Except for a few exclusive powers that belong to the federation, such as the relationship between the federation and the Pacific Islands, most powers belong to the powers shared by the federation and the states. Article 51 of the Constitution clearly enumerates the legislative powers of the Federal Parliament, which mainly include: interstate and overseas trade and commerce rights; no tax discrimination between states or between different components within a state; incentives for the production and export of goods, these incentives Money should be uniform throughout Australia; Commonwealth public credit; postal, telephone and other such services; corporate powers; racial powers; external affairs powers; compulsory acquisition of property on just terms; incidental powers (including potential powers due to sovereign state status), etc.

(2) Article 52 of the Constitution gives the federation exclusive powers, that is, for the sake of peace, order and good governance, the federation has the power to legislate on the following matters: the seat of the federal government, and in the interest of the public all places acquired; matters concerning any department of public utility whose management power has been transferred to the federal government under this Constitution; other matters declared by this Constitution to be within the exclusive power of Parliament, such as excise taxes and customs duties in Article 90, Article 111 The states of the Articles ceded part of their territory to the federal government and were absolutely obedient to the federal government in handling affairs in the region.

(3) Article 122 of the Constitution stipulates that the Federation may be any area renounced by a state and accepted by the Federation, placed by the Queen under federal power and accepted by the Federation, or otherwise transferred by the Federation Legislate any territory acquired.

(4) The Constitution has also been interpreted as giving the Federal Parliament implicit legislative power on national matters.

2. Parliamentary legislation may be invalid if the following formal and procedural rules stipulated in the Constitution are not observed.

Article 54 of the Federal Constitution concerns the legal requirements for appropriation expenditures; Article 55 concerns the legal form requirements for compulsory taxation; Article 57 stipulates the procedural aspects of resolving disputes when conflicts arise between the House of Representatives and the Senate. Require.

The above provisions are the constitutional basis for restricting the legislative power of the Federal Parliament. If the laws enacted by the Parliament exceed the types and scope of powers granted by the Constitution and thereby infringe on the rights of the parties, the parties may file a constitutional review lawsuit and file a lawsuit. The claim that legislation is ultra vires, thereby achieving the purpose of indirectly protecting rights.

Of course, this method of protecting human rights is indirect. Because, if the rights of the parties have been infringed, we can only claim that the legislative power exercised by the legislature exceeds the scope; furthermore, for most of the constitutional power provisions, the court does not recognize that they have the nature of subjective power to protect human rights, that is, they cannot Using rights and freedoms as the reason for prosecution can only be based on the ultra vires of parliamentary legislation. Therefore, this method of protection is subjectively intended to resolve power disputes and objectively has the effect of protecting human rights. This is the human rights protection implied by the power clause of the Constitution.

For example, the Australian Constitution does not clearly stipulate that the courts have the power to review constitutional violations, but the Constitution stipulates that the Federal High Court has the power to interpret the constitution. According to this provision, the court reviewed the court enacted by the Federal Parliament and made a judgment that the legislation exceeded the provisions of the constitution, thereby solving the problem of legislative ultra vires and indirectly protecting the plaintiff's rights and freedoms. This is the Communist Party case [3]. The dispute involved in this case is whether the "Law on the Dissolution of the Communist Party" enacted by the Federal Parliament in 1950 is unconstitutional and infringes on rights and freedoms. The law stipulates: disband the Communist Party and establish an organization to take over the assets of the Communist Party; it also stipulates that any group or institution that has not been registered as an industrial organization and has connections with the Communist Party shall It is illegal as long as the Federal Governor believes that the existence of the organization is harmful to the defense and security of the Federation. The preamble of the law states that the Communist Party in Australia is engaged in activities that use violence to overthrow the government system and cause damage to the country's defense and major industrial systems through strikes and work stoppages. Regarding the above-mentioned legal provisions, the Communist Party of China and some trade union organizations filed a lawsuit with the Federal High Court, accusing the Parliament of violating the power conferred by Article 51, Paragraph 6 (4) of the Constitution; they also believed that the law violated the plaintiff’s rights of association, Assembly, strikes and property rights. The court reviewed and held that the law exceeded the scope of powers granted to Parliament by the Constitution because the defense power of Article 51(6) of the Constitution cannot be extended to approve the law in peacetime. The court did not accept the plaintiff’s claim that the law violated their rights of association and assembly because these rights were not provided for in the Federal Constitution. Nonetheless, the court confirmed through review that the Federal Parliament exceeded its legislative power and objectively protected the plaintiff’s rights of association, assembly, strike, and property.

The engineers' case, namely the Engineers United Association and Adelaide Steamship Co. Ltd. case [5] is another far-reaching case. The United Engineers Association is a national trade union whose purpose is to provide services for employees across Australia to raise demands and grievances against employers for increased wages and improved conditions. One of the employers is a Western Australian government enterprise. The association initially sought a resolution to the dispute before the Federal Arbitration Court. The Federal Conciliation and Arbitration Act of 1904 gives the courts jurisdiction to prevent and handle industrial disputes beyond the scope of any state, including industrial disputes under state control or controlled by public authority. Western Australia's Trade Minister has argued that federal law cannot apply to state government businesses. The High Court held that the law fell within the scope of effective powers specified in Article 51, Section 35(6) of the Constitution, and there was no reason why the state could obtain immunity from enforcing the law. In this case, the High Court’s ruling and interpretation of Article 51(35) of the Constitution enabled federal laws to bind state governments. This ruling subjectively resolved the dispute between state and federal rights, while objectively protecting the plaintiff (employee) purpose. This case indirectly achieved the result of protecting the rights and freedoms of employees by confirming the constitutionality of federal legislation and bringing state employers within the scope of restrictions.

The above cases show that the Federal High Court of Australia examines whether legislation exceeds the scope of the constitution by applying the powers clause in the constitution. If it is unconstitutional, it will be declared invalid; if it is constitutional, its constitutional validity will be maintained. All of these objectively have the result of protecting human rights.

(2) Use the express rights clauses of the Constitution to directly protect constitutional rights

The Australian Federal Constitution contains four express rights: Article 80, the right to trial by jury; Article 116, Religion Freedom; Article 117 shall not discriminate against residents because they live in other states; Article 51, paragraph 31, provides that the federation shall acquire the property of a state or an individual citizen on the basis of just compensation. [7] In addition, Article 51, Item 23A also provides limited protection. The High Court has directly applied these provisions and made many decisions to protect these rights and freedoms of citizens.

1. The right to trial by jury. Article 80 of the Constitution provides that citizens have the right to a jury trial.

But from all records of the High Court, this section is subject to a limited interpretation. The rights protected by Article 80 are limited in that the plaintiff can only obtain the right to a jury if there is a trial by indictment.

2. Religious freedom. Article 116 of the Constitution stipulates that the Federation shall not make laws establishing a state religion, prescribing any religious observances, or prohibiting freedom of religious belief, and shall not require participation in religious examinations as a qualification for holding federal office. The religious freedom requirements of this article adhere to the principles of non-establishment and free exercise.

(1) Non-establishment principle. One of the detailed and still authoritative DOGS cases is the Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146CLR559 case. In this case, the Attorney-General of Victoria attempted to apply for a court ruling that federal financial aid to religious schools violated Article 116 of the Constitution, which prohibits the establishment of a state religion. The plaintiffs argue that because these schools are founded on religion, they argue that government financial support promoted the development of religious affairs in these schools to the point of federal establishment of religion. It is also believed that Article 116 of the Constitution prohibits the federal government from enacting any law to provide comprehensive recognition, assistance or support to any particular religion. In other words, the argument is that the federal government gives special treatment to one religion over another, which violates Article 116 of the Constitution. The High Court held that, in accordance with Article 96 of the Constitution,[8] the authorization provided by the federation to the states is subject to the restrictions set out in Article 116. However, the high court ultimately rejected the challenge 6-1. The majority of the judges held that the prohibition on “establishing any form of religion” is aimed at prohibiting the establishment of a specific religion as a state religion, the establishment of a certain state religion, or the special strengthening of the protection of a certain religion to make it a state religion. In this case, merely providing financial assistance to religious activities, sects, and religious schools does not reach the level of establishing a religion.

(2) The principle of free exercise. The fundamental value it protects is that individuals should have the freedom to independently pursue their religion (or not practice it) without interference from the government. It mainly involves two questions: Is there any legitimate government interference with this freedom? How to draw the line between protecting the principle of free expression and other unprotected principles?

The first issue was discussed in the case of Kruger v. Commonwealth (1997) 190CLR1. The petitioner contends that the provisions of the federal Defense Act of 1903 regarding the performance of military service obligations violate the religious beliefs provisions of the Constitution. The court rejected the request, with Chief Justice Griffith finding that there was no conflict between military training and the free exercise of religion because military training did nothing to interfere with religion and that Kruger was not prohibited from exercising his freedom of religion because while performing his military service, he It is still possible to practice his religion.

The second question is, based on what criteria can religious activities be distinguished from other activities? Courts have sometimes had to grapple with the extremely difficult question of "what is religion?" Three aspects of the dispute were clarified. First, religion does not have to be theistic, but it can be said that belief in religion "is belief in the supernatural, belief in a certain thing or a certain principle." In other words, faith is a transcendent order that transcends the world of daily life and cannot be understood according to ordinary methods. Second, belief in the existence of a supernatural world is not self-satisfaction in establishing a religion. That is, there must be some "canons of conduct" that give validity to this belief. Third, religion does not have to be rational. After all, it is only about religious freedom and not about ensuring reasonable religious freedom. Article 116 does not require courts to evaluate and judge the value of real-world religions.

3. Freedom from discrimination based on residence in a different state. Section 117 of the Constitution provides that subjects of the Queen residing in any state shall not be subject to any restriction or discrimination in any other state which would not equally apply to subjects of the Queen residing in that state. The core concept of this article is discrimination.

There are two representative cases: Henry v. Boehm (1973) 128CLR432 case and Street v. Queensland Bar Association (1989) 168CLR461; 88ALR321 case. Both cases involve similar issues. The former case concerned the time limits imposed by South Australia on practicing court practice in that state; the latter case concerned the admission of practitioners from other states to Queensland. In the previous case, section 27(1) of the Rules of Court Regulating the Admission of Practioners in South Australia provided that a person who had previously been admitted in another state could not apply for admission before applying for admission. You must have lived in South Australia for "at least three months" before entering. The plaintiff argued that this provision discriminated against South Australian residents and violated section 117. The court majority held that the requirement was not discriminatory.

According to the majority view of the court, if South Australia only imposes restrictions on non-residents of the state and does not apply to residents of South Australia, it would violate Article 117 of the Constitution, that is, it would discriminate against residents of other states. However, in that case there was no restriction on eligibility to non-residents of South Australia. Because the above regulations stipulate that all persons who are required to obtain court practice qualifications in South Australia must reside for a certain continuous period of time. All persons applying to practice before the Court, whether or not residents of South Australia, have the same status.

4. Acquisition of state or individual property on the basis of legitimate conditions

Article 51, paragraph 31, of the Constitution stipulates that in order to maintain the peace, order and good governance of the Federation, the Parliament has the power to Make laws for the acquisition of property in any State, or upon any person, subject to this Constitution, upon just terms.

Concerning the cases of this article, the main controversy is: What is acquisition? What is property? What are legitimate conditions? In its judgment, the High Court clarified the meaning of Article 51(31), which can be understood as the constitutional source of the federal acquisition of property rights. It requires that whenever property is acquired under federal law, compensation must be provided on a "just terms" basis. The court gave a broad interpretation to the concept of property in Article 51(31). In the case of Minister of State for the Army v. Dalziel (1944) 68 CLR 261, the court elaborated. The majority of the judges ruled that property includes "money, the right to receive payment in money" [9], intellectual property [10] and the native title of indigenous people and original islanders. 〔11〕 The concept of “acquisition” is more restricted.

In summary, although generally speaking, the courts have restrictive characteristics when using the express rights provisions of the Constitution to protect human rights, by handling disputes, the courts have solved the problem and still given full consideration to the rights of citizens. minimal protection.

(3) The court discovered the tacit rights in the constitution through trial

Implied rights refer to the constitutional text that is not expressly stipulated in the constitution as rights but is recognized by the high court and structures, including the system of representative and accountable government created by the Constitution, as well as the many implied rights (liberties) derived from governmental power that may result from decentralization. 〔12〕The Australian Federal Constitution lacks a special "Bill of Rights" chapter, but many clauses have the effect of limiting the power of the government, allowing the courts to find implicit rights and freedoms in them, and the courts use them as a basis to protect individual rights. It should be noted that “judges must discover rights that are not enumerated in the Constitution and cannot create new rights.” [13]

Implied rights can be divided into two categories: implied rights related to specific provisions in the constitution and constitutional rights based on the constitutional structure or basic constitutional principles. [14]

1. Implied rights related to specific provisions in the Constitution, including:

(1) The beginning of Article 51 of the Constitution stipulates: Parliament shall, in accordance with this Constitution, have Power to legislate in the interests of peace, order and good governance of the Union with respect to the following matters…. The phrases "peace, order and good governance" are usually associated with the granting of legislative power in Australian legal tradition and can function as limitations on legislative power. It protects civil rights in the sense that it limits legislative power.

(2) Article 109 is also an important source of citizens’ implied rights. It stipulates: When state laws and federal laws are inconsistent on the same subject matter, federal law takes precedence; the portion of state law that conflicts with federal law is invalid. In the case of University of Wollongong v. Metwally (1984) 158 CLR 447; ALR 1, the majority of the Court regarded this article as the source of individual rights and pointed out that Article 109 of the Constitution not only established the supremacy of federal law over state law, it also protected An individual is protected from unfair treatment by the requirement to submit to valid state law that conflicts with federal law on the same subject matter.

(3) Chapter 3 of the Constitution exclusively confers judicial power to the courts, which leads to a series of freedom rights: protecting Australians’ right to obtain final judicial relief; not only does it implicitly include judicial power only It also means that judicial power can only be granted to courts, and the agencies to which it is granted must meet the "basic requirements of the courts"; it also extends to due process of law and the right to equality under the law.

2. Implied rights unrelated to specific provisions

When interpreting the constitution, the courts often derive a series of rights from the constitutional structure or basic common law principles. Mainly include:

(1) Implied freedom of speech to discuss political and government affairs. The Constitution has established a system of democratic representation and responsibility, which is reflected in Articles 7, 24, 62, 64 and 128 of the Constitution. In the case of Australian Capital Television v. Commonwealth (1992) 177CLR106; 108ALR577, the High Court ruled by a majority of 5 to 2 that the provisions of the Federal Advertising Act 1942, which prohibits political advertising on radio and television during elections, are invalid. .

(2) Rights such as freedom of assembly and freedom of association. This also arises from the system of representative government established by the Constitution.

(3) Equal voting rights. This is derived from the "direct election by the people" established in Articles 7 and 24 of the Constitution. Although Article 24 of the Constitution does not require electoral equality on the basis of strict "equivalence of votes", in the case of McGinty v. Western Australia (1996) 186 CLR 140, the majority of the judges supported the following proposition: Article 24 "directly by the people" The key word "election" establishes that the government has no right to deprive adult citizens of the right to universal suffrage in federal elections. Justices Toohey, Gaudron, and Gummow went further and regarded equality of voting rights (or at least related equality of voting rights) as an important principle, implicitly included in the election clause of the Constitution. In the case of Leeth v. Commonwealth (1992) 174 CLR 455, two judges, Deane and Toohey, held that the principle of legal equality is a "necessary meaning" of the Constitution. It is also believed that this principle has two meanings: first, all people must obey the law; second, all people have potential and inherent theoretical equality under the law and before the court. The two judges cited numerous examples to prove the existence of this meaning: The Constitution is an agreement for the freedom and equality of the people, and the principle of equality is inherent in the concept of equal protection of federal judicial power. If the people's rights are protected without discrimination in the state, It would be ridiculous to not get federal protection.

(4) Use relevant provisions in international human rights treaties to protect human rights

In Australia, if there is no specific domestic implementation law, the international conventions and treaties ratified by it will not automatically take effect. . However, the court does not simply adhere to this point in trial practice. For international treaties that the country has ratified but has not yet enacted domestic laws to implement, when handling cases, the courts will, to a certain extent, recognize the domestic binding force of the international treaties in order to protect the rights of citizens.

The Constitution provides the basis for the country to formulate foreign-related laws. Article 51, paragraph 29, of the Constitution stipulates that the federation has the power to legislate on matters related to "external affairs." It has two basic meanings:

(1) The Federation can legislate on any person, place, matter and thing [15] outside the geographical scope of Australia.

(2) Diplomatic relations. This is the most controversial aspect and the main basis for relations with international treaties and conventions. The federal legislation enacted related to this has three aspects: legislation related to treaties and conventions, legislation involving international matters, and other legislation related to Australia's foreign affairs. The Court has made some precedents on the relationship between domestic law and international human rights conventions, one of which is the Teoh case. [16]

On April 7, 1995, in the Teoh case, the High Court expressed its views on the validity of treaties that Australia had ratified but had not enacted domestic implementing laws, regarding the implementation of the United Nations "Children's Rights" The Convention clarifies the view. The Convention has been ratified by Australia, but the treaty has not been incorporated into Australian law. This shows that the treaty does not automatically have effect in Australia. The case at issue was whether and to what extent public authorities need to take into account the Convention on the Rights of the Child when deciding whether to deport a foreigner whose children have Australian citizenship to return to Malaysia. The foreigner in question, Tio, has been charged with drug offenses in Australia, allegedly importing and possessing heroin. Tio argued that it was important for him that the country should consider the Convention on the Rights of the Child, because if the Convention had been considered, the outcome could have been very different.

The High Court’s view is: (1) Treaties are not part of Australian law and cannot be effective unless there is legislation; under the Australian legal system, treaties that have not been incorporated into Australian law cannot be regarded as direct individual rights. and sources of obligation are implemented. (2) A treaty that the Australian government has ratified but has not incorporated into Australia's legal system may give rise to a "legitimate expectation" that decision-makers should act in accordance with the treaty: ratification of a convention is a positive statement made by the executive government to the world and the Australian people, The Government and its agencies will act in accordance with the Convention. This positive statement is the appropriate basis for the "legitimate expectation" that, in the absence of statute and conduct to the contrary, the administrative decision-maker will act in accordance with the Convention. In deciding to deport Tio, the main factor considered by the Immigration and Race Department was whether the defendant met the requirements of good character, and the mechanism of the Convention on the Rights of the Child requires that the interests of the child be the main factor to be considered (that is, at least for good character). In terms of quality requirements, they are on equal footing). When the Immigration and Race Department decided to deport Tio, it only considered good character as the main factor and did not take the interests of the children in the case as the main factor. This approach was inappropriate and wrong. After the verdict of this case, it caused great shock to the government, which issued a statement to boycott it. Nonetheless, the outcome of the judgment did in fact have some legal implications for the conduct of the Australian government. These issues are still debated today.

It can be seen from this that although Australian courts are faced with difficult choices, they still work hard to urge their governments to implement treaties and conventions and protect human rights, which is undoubtedly of great significance.

Australia's judicial decisions are undoubtedly important inspirations for other countries to promote the judicialization and empirical implementation of treaties and conventions.

3. Summary

It can be seen from the above analysis that the Australian High Court strives to overcome the shortcomings of the written constitution and attaches great importance to the use of the constitution to protect citizens’ rights. Their attitude towards taking the Constitution seriously is very valuable. First, many constitutional rights are lacking in the Australian Constitution, but the courts still attach importance to using the constitution to protect human rights. The emergence of this phenomenon is no accident, because all countries realize that the judicial protection of the constitution is the most powerful safeguard for citizens' rights, and constitutional review is also an effective way to restrict power. Second, when there are flaws in the constitution that are not conducive to the protection of citizens' rights, the judicial organs should play a proactive role. A passive approach does not meet the requirements of the development of today's era. Through constitutional interpretation, we can make up for the shortcomings of the Constitution, promote the amendment and improvement of the Constitution, and also help supervise the legislative power to protect the rights of citizens.

Of course, due to the Australian framers’ contempt for human rights protection and the lack of a special “Bill of Rights” chapter in the Australian Federal Constitution, these have seriously restricted the courts’ use of the constitution’s protection of human rights, and have also given Australia Had a huge negative impact. On the one hand, the Constitution has limited provisions on citizens’ constitutional rights, and the understanding of tacit rights is vague and uncertain. Therefore, human rights are vulnerable to infringement by state agencies. Secondly, due to the shortcomings of the courts in applying the constitution to protect human rights, it has also brought negative reputation impact on Australia in the international arena. Compared with other common law countries such as Canada, the United Kingdom, and New Zealand, Australia is clearly lagging behind. Therefore, it is an irresistible trend to formulate a special Bill of Rights as soon as possible, or to add a special "Bill of Rights" to the Constitution.