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2006.06.13
XYZ v The Commonwealth [2006] HCA 25 (13 June 2006)
The reasons in XYZ v The Commonwealth [2006] HCA 25 (13 June 2006) have at last been published. Polyukovich (1991) 172 CLR 501 survives - geographical externality suffices to support legislation under s 51(xxix). Kirby J flagged a possible future narrowing of the geographical externality limb but decided this case on the basis of the international concern limb (not considered by the other majority justices).
But what is really striking about the judgment is the joint dissent of Callinan and Heydon JJ. Their approach to s 51(xxix) is ostensibly originalist - but with a new and rather bizarre twist. They draw on comments made by the Justices in the 1935 decision in R v Burgess; Ex parte Henry on the basis that some of the Justices were (or were almost but not quite!) contemporaries of federation, whose views in 1935 therefore bore on the meaning of the Constitution in 1901:
One lawyer whose early career was contemporary with federation - he was studying law when the Constitution was enacted - was Latham CJ. His language in R v Burgess; Ex parte Henry is significant. He could "draw no distinction" between the terms "external or foreign affairs or relations". ...
Another contemporary of federation was Starke J - then a barrister in possession of a good practice, and destined to appear in many constitutional cases early in the life of this Court. ...
The adult life of Dixon J began after federation, but his legal education and early professional life commenced only a short time later. ...
Evatt and McTiernan JJ were in the same position as Dixon J, although a little younger. ...
Callinan and Heydon JJ endorse the Cole v Whitfield orthodoxy and add:
These inquiries [allowd by Cole v Whitfield] seem pointless unless, in general, the meaning of an expression in the Constitution like "external affairs" comprises the meanings which skilled lawyers and other informed observers of the federation period would have attributed to it, and, where the expression was subject to "dynamism", the meanings which those observers would reasonably have considered it might bear in future. What individual participants in the Convention debates said it was intended to mean, or meant, either during those debates or later, is no doubt immaterial, save to the extent that their linguistic usages are the primary sources from which a conclusion about the meaning of the words in question can be drawn. Further, no doubt the mere fact that a particular instance of the expression "external affairs" was not foreseen, or could not have been foreseen, in 1900, does not conclusively indicate that the instance in question could not now fall within it. But, subject to considerations of those kinds, it might be asked whether it is not legitimate to seek to measure the ambit of the power by reference to the meaning which, in 1900, that expression bore or might reasonably have been envisaged as bearing in the future.
The 1935 statements are thus being used as evidence of the "meanings which skilled lawyers and other informed observers of the federation period would have attributed to [the Constitution]" in 1901. Can it it be any more than the weakest evidence, given the separation in time between 1901 and 1935 (and the lack of any opportunity for contemporary [1901] refutation of the statements) and the functional context of the 1935 statements (dicta written as part of an argument for a particular conclusion about s 51(xxix))?
It will be interesting to see how this line of thought - and the federal concerns of these justices and Kirby J - play out in the WorkChoices challenge.
June 13, 2006 in Constitutional law | Permalink | Comments (1)
2006.06.04
International Conference on Legislatures and the Protection of Human Rights - Melbourne, 20-22 July 2006
Carolyn Evans and I are co-convening an International Conference on Legislatures and the Protection of Human Rights at Melbourne Law School from 20 to 22 July 2006.
- the impact of Bills of Rights on policy making and parliamentary procedures
- the contribution of legislative actors and processes (eg the executive, political parties, parliamentary committees, debate in the chamber) to effective human rights scrutiny of legislation
- the conditions in which effective human rights scrutiny can take place
- pre-legislative mechanisms, including
- rights- or Charter-compatibility statements and human rights impact statements
- developing a human rights culture in the public service
- the role of outside influences on effective human rights scrutiny
Featured speakers include
- Professor David Feldman ( University of Cambridge, and former legal adviser to the UK Parliament’s Joint Committee on Human Rights)
- Professor Janet Hiebert (Queen’s University, Kingston Ontario)
- Professor George Williams (Director, Gilbert+Tobin Centre of Public Law, UNSW)
- Hafid Abbas (Director General of Human Rights Protection, Department of Justice and Human Rights, Indonesia)
- Professor Jeremy Gunn (Director, Program on Freedom of Religion and Belief, American Civil Liberties Union, Washington DC and Senior Fellow, Emory University, Georgia)
- Professor Paul Rishworth (Faculty of Law, University of Auckland)
- Professor David Kinley (Faculty of Law, University of Sydney)
- Hafid Abbas (Director General of Human Rights, Ministry of Law and Human Rights, Indonesia)
- Professor James Allan (University of Queensland)
- Stuart Beresford (New Zealand Ministry of Justice)
- Joanna Davidson (Crown Counsel, New Zealand)
- Dr John Dinan (Wake Forest University, USA)
- Dr Carolyn Evans (University of Melbourne)
- Dr Simon Evans (University of Melbourne)
- Angus Francis (Griffith University)
- Professor Jeremy Gunn (Director, Program on Freedom of Religion and Belief, American Civil Liberties Union, Washington DC and Senior Fellow, Emory University, Georgia)
- Professor Janet Hiebert (Queen’s University, Ontario)
- Thomas John (Australian Parliament House Library Research Service)
- Dr Tsvi Kahana (Queen’s University, Canada)
- Professor James Kelly (Concordia University, Canada)
- Professor David Kinley (University of Sydney)
- Gabrielle McKinnon (Australian National University)
- Professor John McMillan (Commonwealth Ombudsman, Canberra)
- Senator Andrew Murray (Scrutiny of Bills Committee, Australian Senate)
- Mr Satya Prateek (The National University of Juridical Sciences, India)
- Professor Paul Rishworth (University of Auckland)
- Professor Dr Gerhard Robbers (Universität Trier, Germany)
- Allan Shearan (Chair, Legislation Review Committee, NSW Parliament)
- Professor George Williams (Director, Gilbert +Tobin Centre of Public Law, UNSW)
- Professor George Williams, ‘The case for a role for the judiciary’
- Professor James Allan, ‘The case for parliamentary control’
- Professor Dr. Gerhard Robbers, ‘Legislatures and the protection of rights in Germany’
- Mr Satya Prateek, ‘Achieving by enacting: locating Indian parliament in the human rights discourse’
- Professor Paul Rishworth, ‘The New Zealand Parliament and the Protection of Rights’
- Dr John Dinan, ‘United States congress and rights’
- Senator Andrew Murray, ‘Senate legislative scrutiny committees’
- Mr Allan Shearan: ‘The role of the legislative review committee’
- Thomas John, ‘Federal parliamentary debate and the protection of human rights’
- Mr Angus Francis: ‘Post-legislative scrutiny in the immigration portfolio'
- Mr Hafid Abbas, ‘Human rights in the Indonesian public service’
- Ms Gabrielle McKinnon, ‘Giving meaning to a culture of human rights’
- Mr Stuart Beresford, ‘Developing a human rights culture in the public service: you can lead an agency to water by you cannot make it drink?’
- Professor John McMillan, ‘The role of the Ombudsman in ensuring executive compliance with rights’
- Professor Jeremy Gunn, ‘Legislatures and the exportation of rights: the case of the US Congress and Religious Freedom’
- Professor David Kinley,‘Good Governance, Human
Rights and the Global Economy’
- Dr James Kelly, ‘The commonwealth model and bills of rights: comparing legislative activism in Canada and New Zealand’
- Ms Joanna Davidson, ‘The role and impact of the government lawyer in pre-legislative scrutiny’
- Dr Tsvi Kahana, ‘Between legislative supremacy and legislative constitutionalism: The notwithstanding clause in Canadian legislatures’
- Professor Janet Hiebert, ‘The importance of the political dimension of rights’
- Dr Carolyn Evans and Dr Simon Evans, ‘The effectiveness of Australian parliaments in the protection of rights: empirical evidence.’
June 4, 2006 | Permalink
2006.06.02
Another reason why students need to understand the jurisdictional limits of the ADJR Act
They could wind up paying the Commonwealth's costs of a futile application. In Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth [2006] FCA 671 (31 May 2006), the applicant's solicitor commenced proceedings seeking judicial review of the Commonwealth's decision not to provide legal assistance under a Public Interest and Test Cases Scheme administered by the Attorney-General's Department. The claim was hopeless: "the administration of the Scheme was not amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) as it was not done pursuant to any statute or delegated legislation. Its statutory source was an Appropriation Act under which any of a variety of legal assistance schemes, or none, could have been set up. Mandamus was not available because there was no relevant legal duty to be enforced."
French J concluded:
1 When a legal practitioner, whether solicitor or counsel or both, fails in his or her duty to a client and the Court by serious incompetence in framing an application and claims for relief and in its presentation, the Court may order that the practitioner pay the costs of a party to the proceedings. This is not a power to be exercised lightly but only in clear cases of a serious breach of duty.
2 The present is such a case. ... The preparation and
presentation of the application for judicial review was done at such a poor
level of competence as to amount to a significant breach of duty by the
practitioner and warrants the making of an order for costs against him
personally.
June 2, 2006 in Constitutional law | Permalink | Comments (1)
