Introduction to the Study of the Law of the Constitution, 8th ed. (With Active Table of Contents)

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Although the Australian Constitution does not contain a Bill of Rights, it does guarantee some important freedoms. It is apparent from this list that the few rights that are listed in the Constitution are scattered about the text and are ad hoc rather than comprehensive. The result is that many basic rights receive no constitutional protection. This is obvious from a quick cross-reference between the Australian Constitution and other instruments, such as the Canadian Charter of Rights and Freedoms For example, the text of the Australian Constitution does not include anything amounting to a freedom from discrimination on the basis of sex 6 or race, and, while the Constitution has been interpreted to protect freedom of political communication, 7 it lacks a more general right of free speech.

The Constitution does not even contain an express guarantee of the right to vote. There are many statutes at both the Commonwealth and State level that protect certain human rights, although there is no one statute that sets out the basic rights and freedoms of the Australian people. Human rights legislation may play a separate complementary role even where a constitution contains a Bill of Rights. While constitutional rights are generally only concerned with imposing limitations upon governmental action, human rights legislation commonly also establishes rights and obligations as between private individuals, such as between employer and employee or between landlord and tenant.

This means, for example, that the enactment of the Canadian Charter of Rights and Freedoms in , or even the New Zealand Bill of Rights Act , has not diminished the importance of statute law in either Canada 8 or New Zealand. The most significant Federal rights orientated legislation lies in the area of anti-discrimination legislation. These Acts operate throughout Australia and are enforced, to the extent possible given the separation of powers in the Australian Constitution, 12 by the Human Rights and Equal Opportunity Commission.

For example, section 9 1 of the Racial Discrimination Act Cwlth provides:. It is unlawful for any person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

The impact of such legislation should not be overstated. It is arguably inadequate in dealing with problems of systematic discrimination and in promoting substantive, as opposed to merely formal, equality. For example, the Sex Discrimination Act lists protected grounds including sex, marital status and pregnancy and prohibits discrimination in fields such as employment, education, accommodation and the provision of goods and services.

The Sex Discrimination Act also contains a number of exemptions, such as in relation to religious, charity and voluntary bodies, competitive sport and tribunal decisions. Perhaps the most significant weakness of Federal anti-discrimination legislation is that it is subject to amendment or repeal by subsequent Federal legislation.

Once the Federal Parliament has bestowed a right or entitlement in a statute, it is equally competent, under the doctrine of parliamentary sovereignty, to take such a right away. This was demonstrated by the political difficulties experienced by the Howard Government, in seeking to enact a response to the High Court's decision in Wik Peoples v Queensland 16 that arguably lessened the protection offered by the Racial Discrimination Act. The constitutional validity of Federal anti-discrimination legislation mainly depends upon the Commonwealth's power to legislate with respect to 'external affairs' under section 51 xxix of the Constitution.

In the Tasmanian Dam Case 18 and in subsequent decisions, 19 the High Court has held that this power enables the Federal Parliament to pass legislation to implement obligations that it has incurred by becoming a party to international instruments such as treaties and covenants. It may implement such instruments to the extent that its laws are 'capable of being reasonably considered to be appropriate and adapted' to meeting the treaty obligation.

The Court has shown flexibility in leaving the scope and means of implementation to Parliament. Commonwealth anti-discrimination legislation has another important constitutional dimension. Where Federal legislation is inconsistent with State legislation, it renders the State legislation 'invalid' in accordance with section of the Constitution.

Sir Harry Gibbs, a former Chief Justice of the High Court, commented that in section 9 of the Racial Discrimination Act 'we may already have what appears to be a bill of rights, limited it is true in scope, which is effective[ly] entrenched against the States'. A matter was brought before the High Court to test whether the Commonwealth law was effective in achieving this. However, before the High Court could decide the issue, the provisions were repealed by the Tasmanian Parliament.

The Scope for Further Legislation. Statutes such as the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act demonstrate the important role that the Federal Parliament has already played in the protection of human rights. However, these statutes go only a small way to meeting Australia's international obligations under treaties such as the International Covenant on Civil and Political Rights Further opportunities exist for the Federal Parliament to exercise its constitutional powers, through legislation and other means, to foster the protection of basic rights.

To date, the protection provided is ad hoc and of limited reach in focussing upon discrimination on the basis of race, sex or disability. There is therefore scope for the Parliament to enact a regime of rights protection under its power over 'external affairs' that would protect other basic rights listed in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights , such as the freedoms of speech, assembly and movement.

Several States and Territories have made faltering steps towards enacting a Bill of Rights. Despite several reports advocating a Bill of Rights, 26 and even the introduction of such Bills into State Parliaments, 27 the necessary State or Territory legislation has yet to be passed. At best, State or Territory statutes have recognised rights on an ad hoc basis, such as the right of peaceful assembly in the Peaceful Assembly Act Qld.

This has left much of the focus for change at the Federal level. There have been several attempts by the Federal Parliament to bring about a statutory Bill of Rights or to amend the Constitution to recognise new basic freedoms. A referendum proposal must be passed by an absolute majority of both houses of the Federal Parliament, or by one House twice, and then by a majority of the people and by a majority of the people in a majority of the States that is, in at least four of the six States. Of these, only eight have been passed.

In it was proposed at the Constitutional Convention held in Canberra that the Commonwealth be given a series of new powers. Such powers were to include the power to make laws with respect to:. This proposal would not have amounted to new guarantees of rights, but would have given the Commonwealth the power to legislate to guarantee such rights from abrogation by State legislation. Under section of the Constitution, inconsistent State legislation would have been rendered inoperative.

This provision did not emerge in the proposal that went to the people in a referendum held on 19 August Instead the referendum proposal put to the people after being passed by the Federal Parliament was that the Constitution be amended to grant the Commonwealth fourteen new heads of power over post-war reconstruction. The proposal also sought to insert guarantees of speech and expression as well as extend the guarantee of religious freedom in section to the States.

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The referendum was lost on the national vote with a It received a majority 'Yes' vote in only two States. The referendum that has received the highest 'Yes' vote was a proposal put to the people on 27 May That referendum gained the support of The referendum deleted the words in italics. It also repealed section of the Constitution, which had provided: Although these changes to the Constitution have been popularly seen as granting Aboriginal people 'equal rights' and in particular the right to vote, 34 this is not correct. The right to vote in Federal elections had been denied to Aboriginal people by section 4 of the Commonwealth Franchise Act Cwlth , and, even where Aboriginal people might have been entitled to vote under section 41 of the Constitution, 35 in practice the vote was denied to them.

While the changes to the text of the Constitution extended the races power to Aboriginal people and repealed the discriminatory section , they did not actually grant Aboriginal people any rights. Indeed, it remains unclear whether the extension of the races power in section 51 xxvi to Aboriginal people gave the Federal Parliament the power to legislate for the detriment, as well as the benefit, of Aboriginal people. The Human Rights Bill Despite the success of the referendum, the next two attempts to bring about greater protection for fundamental rights came in the form of statutory Bills of Rights.

The Bill sought to implement the International Covenant on Civil and Political Rights in Australia and would have protected a range of rights such as freedom of expression, freedom of movement, the right to marry and found a family and individual privacy. What protection is given by the Australian Constitution is minimal and does not touch the most significant of these rights Ideally, in my view, a Bill of Rights should be written into the Australian Constitution It will help to make Australian society more free and more just.

The rights listed in the Bill would have overridden inconsistent State legislation under section The Bill provided that Commonwealth legislation would also be ineffective if it breached any of the rights listed in the Bill unless the Commonwealth statute expressly provided that it was to operate notwithstanding the Human Rights Bill. The rights listed could be enforced not only against governmental action, but also against private action. Murphy was appointed soon after to the High Court, where he broadly interpreted the express rights in the Constitution and held that a number of other rights could be implied by the instrument.

The Evans and Bowen Bills. The failure of the Human Rights Bill did not end attempts to bring about rights protection by Federal implementation of international instruments.

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In he oversaw the drafting of a Bill of Rights Bill that, like its predecessor, would have implemented international rights instruments. However, the model was weaker than its predecessor in several ways, 46 most significantly in that it would only have applied to governmental action, whereas the Murphy Bill would have applied to any action that infringed the protected rights. Although the Evans Bill was given Cabinet support, it was not introduced into Parliament. After being redrafted and its operation watered down, 47 the Bill was introduced into the Federal Parliament in November as the Australian Human Rights Bill Cwlth.

It was passed by the House of Representatives but failed to gain majority support in the Senate. Encountering strong opposition, the Bill was finally withdrawn in November The Constitutional Commission and the Referendum. In the wake of the failure of the Bowen Bill, the Hawke Government changed tack. It established the Constitutional Commission in December to report on the revision of the Australian Constitution in order, inter alia, to 'ensure that democratic rights are guaranteed'.

This Committee reported in Overall, the proposal was a relatively modest one. While it proposed new rights such as 'a right to a speedy trial' 51 and a right to vote, rather than suggesting that the Constitution should guarantee freedom of expression generally, the Committee found that it should only protect expression 'concerning government, public policy, and administration, and politics'.

The Constitutional Commission responded in an interim report in April , 54 in which it made recommendations to expand the scope of the express rights already in the Constitution, but also foreshadowed the need for wider change. For example, it was recommended that the protection of religious freedom in section of the Constitution be extended to laws passed by the States and Territories. The Commission's final report was provided in June , 55 and was far more ambitious. It proposed significantly greater protection for rights by constitutional means than had its Advisory Committee. The Commission rejected the limited guarantee of expression proposed by its Advisory Committee, and instead recommended a freedom of expression not limited as to content.

A majority of the Commission found that a power to 'opt-out' or override constitutional guarantees 'is inconsistent with the whole process of entrenching rights in the Constitution'. Bowen had requested that the Commission provide an interim report so that a referendum to amend the Constitution could be held in , the bicentenary of white settlement of Australia. Accordingly, after the interim report had been provided, but before the Commission had completed its final report, the Hawke Government announced that it would initiate constitutional change.

Legislation was introduced to this effect on 10 May , with four proposals put to the Australian people on 3 September The proposals were derived, with some variations, 60 from the recommendations of the Constitutional Commission in its interim report. The first and third proposals concerned four-year maximum terms for the Federal Parliament and recognition of local government, respectively.

The second proposal sought to guarantee 'one vote, one value' by requiring that the population count in each electorate not deviate by more than 10 per cent. This proposal would also have inserted a right to vote into the Constitution. New sections A and B would have extended the guarantee of 'just terms' for any 'acquisition of property' to State laws and laws made in respect of the Territories by the Commonwealth under section of the Constitution.

Finally, section would have been deleted and replaced with a section guaranteeing the religious freedom already spelt out in section not just in regard to Commonwealth laws but also in respect of laws passed by a State or Territory. All four proposals were defeated nationally and in every State. For the proponents of change, the results were dismal. The highest national 'Yes' vote for any of the proposals was The fourth proposal received an astonishingly low vote, the lowest of any of the proposals.

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This was the lowest 'Yes' vote ever recorded in Australia. In South Australia the 'Yes' vote was only The failure of the referendum undermined any move to insert other rights into the Constitution or to implement the final report of the Constitutional Commission. The Constitutional Convention. The failure of the referendum was a factor in the lack of headway on rights issues at the Constitutional Convention.

It was premised on a restricted view of what it means to be a republic by being based upon the assumption that Australia would become a republic once there is an Australian as Head of State. The focus of the Convention was on change to the symbols and traditions of the Constitution. Although some delegates were elected to the Convention on the basis that Australia could not be said to be a republic unless the Constitution were to protect fundamental freedoms, there was little support for the canvassing of rights issues at the Convention.

This was due to the agenda of the Convention being limited to issues concerning whether, when and how Australia might make the transition to a republic. It was also due to the belief of many republicans at the Convention, who might otherwise have supported a Bill of Rights, that to consider the republic and a Bill of Rights concurrently would be to load the republican option with a millstone at any subsequent referendum.

There was, however, some recognition at the Convention of the need to protect basic rights.

The Communique of the Convention 64 recognised the need to incorporate a new preamble to the Constitution in the event of a shift to a republic. It was agreed that this preamble should include, among other things, affirmation of the rule of law and acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders. The constitution has a preamble and articles, [c] [15] which are grouped into 25 parts.

Schedules are lists in the constitution which categorise and tabulate bureaucratic activity and government policy. The executive, legislative and judicial branches of government receive their power from the constitution and are bound by it. The President of India is head of the executive branch, under Articles 52 and 53, with the duty of preserving, protecting and defending the constitution and the law under Article Article 74 provides for a Prime Minister as head of the Council of Ministers , which aids and advises the president in the performance of their constitutional duties.

The council is answerable to the lower house under Article 75 3. The constitution is considered federal in nature, and unitary in spirit. It has features of a federation a codified , supreme constitution, a three-tier governmental structure [central, state and local], division of powers , bicameralism and an independent judiciary and unitary features such as a single constitution, single citizenship , an integrated judiciary, a flexible constitution, a strong central government , appointment of state governors by the central government, All India Services the IAS , IFS and IPS and emergency provisions.

This unique combination makes it quasi-federal in form. Each state and union territory has its own government. Analogous to the president and prime minister, each has a governor or in union territories a lieutenant governor and a chief minister. Article permits the president to dismiss a state government and assume direct authority if a situation arises in which state government cannot be conducted in accordance with constitution.

This power, known as president's rule , was abused as state governments came to be dismissed on flimsy grounds for political reasons. Union of India decision, [46] [47] such a course of action is more difficult since the courts have asserted their right of review. The 73rd and 74th Amendment Acts introduced the system of panchayati raj in rural areas and Nagar Palikas in urban areas. Amendments are additions, variations or repeal of any part of the constitution by Parliament. An amendment bill must be passed by each house of Parliament by a two-thirds majority of its total membership when at least two-thirds are present and vote.

Certain amendments pertaining to the constitution's federal nature must also be ratified by a majority of state legislatures. Unlike ordinary bills in accordance with Article except for money bills , there is no provision for a joint session of the Lok Sabha and Rajya Sabha to pass a constitutional amendment. During a parliamentary recess, the president cannot promulgate ordinances under his legislative powers under Article , Chapter III. Deemed amendments to the constitution which can be passed under the legislative powers of parliament were invalidated by Article 1 in the Twenty-fourth Amendment.

By July , amendment bills had been presented in Parliament; of these, became Amendment Acts. In Kesavananda Bharati v. State of Kerala , the Supreme Court ruled that an amendment cannot destroy what it seeks to modify; it cannot tinker with the constitution's basic structure or framework, which are immutable. Such an amendment will be declared invalid, although no part of the constitution is protected from amendment; the basic structure doctrine does not protect any one provision of the constitution. According to the doctrine, the constitution's basic features when "read as a whole" cannot be abridged or abolished.

These "basic features" have not been fully defined, [44] and whether a particular provision of the constitution is a "basic feature" is decided by the courts. The Kesavananda Bharati v. State of Kerala decision laid down the constitution's basic structure: This implies that Parliament can only amend the constitution to the limit of its basic structure. The Supreme Court or a high court may declare the amendment null and void if this is violated, after a judicial review. This is typical of parliamentary governments, where the judiciary checks parliamentary power.

In its Golak Nath v. State of Punjab decision, the Supreme Court ruled that the state of Punjab could not restrict any fundamental rights protected by the basic structure doctrine.

The judiciary is the final arbiter of the constitution. The courts are expected to remain unaffected by pressure exerted by other branches of the state, citizens or interest groups. An independent judiciary has been held as a basic feature of the constitution, [59] [60] which cannot be changed by the legislature or the executive.

Judicial review was adopted by the constitution of India from judicial review in the United States. The constitution is the supreme power of the nation, and governs all laws. According to Article 13,.

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Due to the adoption of the Thirty-eighth Amendment , the Supreme Court was not allowed to preside over any laws adopted during a state of emergency which infringe fundamental rights under article 32 the right to constitutional remedies. The Supreme Court ruled in Minerva Mills v.

Union of India that judicial review is a basic characteristic of the constitution, overturning Articles 4 , 5 and 31C. The " right to life " guaranteed under Article 21 [A] has been expanded to include a number of human rights, including the right to a speedy trial,; [2] [71] the right to water; [2] [72] the right to earn a livelihood, [2] the right to health, [2] and the right to education.

If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people.

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Treat food nutrition labels as you would any other source. Make sure to include the core elements, in the proper order, and provide as much information as your readers will need to locate the source. Use the title of the plaque as the title of your source. If you have experienced an object firsthand, such as in a museum, give the name of the place, the city in which it is located, and the dates of the exhibition. When you reference the same source more than once in the same paragraph, and no other source intervenes, you may give the in-text citation just once at the end of the paragraph.

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