Week Five: Constitutional Entrenchment (Australia (2008 Brennan Commission…
Week Five: Constitutional Entrenchment
The United Kingdom
"what is or is not 'the Constitution' s is a matter for scholars' individual judgements"
many issues are governed entirely by customs, conventions or standing orders
although note some statutes are of particular importance - see Cabinet Manual
"there is no special device to signal the repugnancy of 'ordinary' laws to those we choose to regard as laws forming part of the constitution"
if the law being broken is a convention, "the only way in which this is signalled is by private persons like the authors writing or making speeches on the subject"
unentrenched - no formal requirements for enacting or amending constitutional norms
"until recently, the law assumed that Parliament was omnicompetent and paramount. It could make or unmake law on any matter whatsoever"
but this has been fettered by the EU
the "Queen-in-Parliament" is the "supreme legal authority"
"separation of powers" is not an appropriate descriptor - more accurate to speak of "checks and balances"
the three branches do not have "coordinate status" - rather, ministers are answerable to parliament, and judgments can be retrospectively altered by legislation
Parliament is "omnicompetent" - there is no area of law in which it cannot legislate
the Prime Minister is not a distinct office - depends wholly on Parliament and "convention and usage
protected by provisions for payment and removal
can only be removed by an act of parliament
the constitution as "historical"
citing Dicey: "not just an ancient constitution, but, more importantly, that it was original and spontaneous, the product not of deliberate design but of historical development"
this gives it strength - relies more heavily on general consent and conventions. "were that consent to be withdrawn, then the perpetuation of an uncodified constitution might also come under threat"
"in terms of their legal status, Convention rights are clearly not supreme law, with higher normative force than statute law, since under section 4(6) a statute declared by the courts to be incompatible with a Convention right continues to have full legal effect"
but the HRA does give some additional protections
"political expectation" that the Convention rights will ultimately trump
As of 2011, there had been 19 DoIs and 17 legislative enactments in compliance
considers the possibility that BORs harm human rights - e.g., when there is reasonable disagreement about rights, and the court has to pick sides
In theory, rights in Australia are protected through holding ministers to account in Parliament
but this doesn't work in practice
elected reps "have only a general appreciation of rights standards"
elections are a blunt instrument - highly unlikely that voters would "turn out" a government for inadequate rights protection
empirical research bears this out
Roach was disqualified from voting because he was a serving prisoner
in 2006, a limited ban on prisoner voting had been expanded to all prisoners
Section 8 of the Australian Constitution provided only that voters' qualifications should be teh same for both legislative houses, and that each voter only have one vote; arts 7 + 24 required that parliamentarians be "chosen by the people"
swept too broadly
voting in elections for the parliament lies at the very heart of the system of government for which the constitution provides
the phrase "chosen by the people" requires inclusion unless there are "substantial reasons" for exclusion
prisoners remain members of the community
is one taht is "consistent or compatible with the maintenance of the constitutionally prescribed system of representative government"
here, the "end served" was one of additional stigmatization", "without regard to the nature of the offense committed"
statute was not "reasonable appropriate and adapted ... to the maintenance of representative government"
Palestinian citizen of Kuwait
applied for a temporary protection visa in AUstralia
was denied, but no country would accept him
consequence was that he was placed in detention, potentially indefinitely
This was found to be authorized under the Migration Act 1958, and therefore constitutional
"desirable as a BOR may be, it is not to be insteted into our constitution by judicial decisions drawing on international instruments taht are not even part of the law in this country"
2008 Brennan Commission
most people agreed that civil and political rights should be protected
some support for ECOSOC rights, and whether they should be enforceable
debate about whether indigenous rights should be specifically recognized
are they sufficiently protected?
Australia had sometimes failed to incorporate findings of UN treaty bodies
democratic institutions "do not always ensure that the rights of minority groups are protected"
concern that anti-discrimination law is complex and vulnerable to amendment, and that administrative law does not incorporate human rights principles
human rights culture
needs to be integrated into everyday life
"found a lack of understanding among Australians of what human rights are"
whether or not a HRA is implemented, education in schools and the community, public sector and corporations needs to be improved
fed gov should review all legislation, policies and practices for HR compliance
cabinet statements should include HRIAs
a parliamentary committee should be created, modeled on the JCHR
for and against
28000 submissions (of 35000) supported the enactment of an HRA
would be an "important
statement of Australian values"
quality and accountability of government
through the dialogue model
engender a culture of respect
bring Australia in line with international standards
through democratic institutions
would not improve parliamentary processes - parliament would either pre-empt the courts, or abdicate its duties for them
the very process of naming and defining rights might limit them
excessive and costly litigation
"transform social and political questions into legal ones"
human rights framework
reaffirming commitment to human rights obligations
emphasizing importance of human rights education
enhancing domestic and international engagement
improvement of parliamentary scrutiny, establishing a JCHR and statements of compatibility
achieving greater respect for human rights principles in the community, including a review and streamlining of antidiscrimination law
- "as the government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community"