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Week Five: Constitutional Entrenchment (Australia (2008 Brennan Commission…

- - - - many issues are governed entirely by customs, conventions or standing orders
      - although note some statutes are of particular importance - see Cabinet Manual
      - "what is or is not 'the Constitution' s is a matter for scholars' individual judgements"
    - - "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"
    - - "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
    - - 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 "were that consent to be withdrawn, then the perpetuation of an uncodified constitution might also come under threat"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
        
        interpretive duty
        
        "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
- - - - 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
  - - - 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
      - which rights?
        
        some support for ECOSOC rights, and whether they should be enforceable
        
        debate about whether indigenous rights should be specifically recognized
        
        most people agreed that civil and political rights should be protected
      - creating a 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
      - legislative process
        
        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
        
        28000 submissions (of 35000) supported the enactment of an HRA
        
        would be an "important symbolic statement of Australian values"
        
        improve quality and accountability of government through the dialogue model
        
        engender a culture of respect
        
        bring Australia in line with international standards
      - against
        
        rights are already protected 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"
    - - launched a human rights framework
      - principles
        
        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
      - No HRA - "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"
  - - - Facts
        
        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"
      - Holding
        
        the ban 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
        
        substantial reason
        
        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"
    - - Facts
        
        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"