2016 Global Review of Constitutional Law

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COUNTRY REPORTS 6 | I•CONnect-Clough Center
Australia DEVELOPMENTS IN AUSTRALIAN CONSTITUTIONAL LAW Anne Carter and Anna Dziedzic, Centre for Comparative Constitutional Studies (CCCS), Melbourne Law School, with assistance from CCCS researchers Artemis Kirkinis, Kalia Laycock-Walsh, and Marcus Roberts AUSTRALIA INTRODUCTION 2016 witnessed several relatively uncommon political events in Australia, including a double dissolution election, a public dispute between the nation’s two highest Law Officers, and legal proceedings over electoral eligibility and processes. These political developments informed the work of the High Court, which heard cases concerning changes to voting methods, the validity of an Electoral Roll ‘suspension period,’ and the eligibility of two Senators. The Court’s constitutional jurisprudence in 2016 on these and other matters (outlined in Part IV below) confirms that the Court’s approach to interpretation remains firmly tied to the text and structure of the Constitution. Outside the judicial realm, debate over constitutional change to recognise Australia’s Indigenous peoples continued, but with little consensus as to the scope of the proposal to be put to referendum. THE CONSTITUTION AND THE COURT The Australian Constitution was created in 1901 when the colonies established by British settlers came together in a federation. The Constitution provides for a parliamentary system of government, broadly based on the Westminster system. It establishes a federal system in which powers are divided between the Commonwealth and six states. A distinctive feature of the Australian Constitution is that it does not include a Bill of Rights. Rights are instead protected by the constitutional separation of powers, the common law, and the democratic legislative process. While the Constitution contains a few discrete rights-protective provisions— including trial by jury and compensation on just terms for acquisition of property 1 —hese provisions are not framed or interpreted in the same manner as civil and political rights in other jurisdictions. Certain rights, such as the freedom of political communication, have been implied into the Constitution by the High Court. 2 The High Court of Australia is the final court of appeal from all federal and state courts. The High Court also has original jurisdiction in constitutional matters 3 (but no capacity to issue advisory opinions) and special jurisdiction to hear electoral disputes. 4 The High Court has the power to invalidate laws that do not comply with the Constitution. The Court comprises seven judges, who are appointed to serve until the age of 70, subject to removal by a special parliamentary procedure. 5 Final hearings before the High Court involve both detailed written submissions and oral argument. Judges may write their own separate judgments and may join with other judges to write joint reasons. Unanimous decisions are relatively rare. 1 Constitution ss 80, 51(xxxi). 2 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 3 Constitution ss 75 and 76. 4 Commonwealth Electoral Act 1918 (Cth) s 354. 5 Constitution s 72; High Court of Australia Act 1979 (Cth) s 5. 2016 Global Review of Constitutional Law | 7
Page 1 and 2: I·CONnect-Clough Center 2016 Globa
Page 3 and 4: Table of Contents 2 INTRODUCTION 3
Page 5 and 6: A FIRST-OF-ITS-KIND RESOURCE IN PUB
Page 7: ABOUT THIS BOOK: ORIGINS, PURPOSE,
Page 11 and 12: monwealth or of a State by imprison
Page 13 and 14: The High Court unanimously dismisse
Page 15 and 16: ditional judges. 7 All judges are a
Page 17 and 18: DEVELOPMENTS AND CONTROVERSIES IN 2
Page 19 and 20: Bangladesh DEVELOPMENTS IN BANGLADE
Page 21 and 22: It is hoped that the Appellate Divi
Page 23 and 24: measure of temporary relief to the
Page 25 and 26: A case may be brought before the Co
Page 27 and 28: adopting a new rectified administra
Page 29 and 30: Brazil DEVELOPMENTS IN BRAZILIAN CO
Page 31 and 32: others, ousting the House Speaker s
Page 33 and 34: tion to provide the pill to hundred
Page 35 and 36: of Ministers, the SCC, the SAC, or
Page 37 and 38: Following a similar logic, the BCC
Page 39 and 40: Cameroon DEVELOPMENTS IN CAMEROONIA
Page 41 and 42: Third, on the very critical issue o
Page 43 and 44: cial interests of the Anglophone co
Page 45 and 46: THE CONSTITUTION AND THE COURT The
Page 47 and 48: subsequent to Toonen it was presume
Page 49 and 50: Chile DEVELOPMENTS IN CHILEAN CONST
Page 51 and 52: abstract judicial review claim (STC
Page 53 and 54: the case to the corresponding court
Page 55 and 56: law” is especially relevant to Cy
Page 57 and 58: so bad, so reprehensible that is, a
Page 59 and 60:
Czech Republic DEVELOPMENTS IN CZEC
Page 61 and 62:
multimillionaire. And he owns sever
Page 63 and 64:
The Court decided that the law at h
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since the late 1980s by the incorpo
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number of immigration matters. 20 T
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France DEVELOPMENTS IN FRENCH CONST
Page 71 and 72:
for priority preliminary ruling on
Page 73 and 74:
violation of the Constitution. The
Page 75 and 76:
the investigative powers of the Bun
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ological paternity,” i.e. they wa
Page 79 and 80:
Hungary DEVELOPMENTS IN HUNGARIAN C
Page 81 and 82:
ensuring an advantage for the non-r
Page 83 and 84:
Court rejected all judicial referra
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tem of government and independent c
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MAJOR CASES Separation of Powers Hr
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India DEVELOPMENTS IN INDIAN CONSTI
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Article 19(1) (a) of the Constituti
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the relevant persons in charge of t
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Indonesia DEVELOPMENTS IN INDONESIA
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from Basuki Hariman, a major player
Page 99 and 100:
agreement but later decide that the
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The Supreme Court was one of two
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Second, these developments seem to
Page 105 and 106:
Israel DEVELOPMENTS IN ISRAELI CONS
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notice”, whereby if at the end of
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force-feeding of hunger-striking pr
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the Parliament was in charge of ado
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seen and unforeseeable but also sub
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CONCLUSION Fifty years after the pu
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Kenya 2010 that sought not just to
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senate (both of which make up Parli
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perhaps the happening that absorbed
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THE CONSTITUTION AND THE COURT The
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of the provisions of the Code of Cr
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Malaysia DEVELOPMENTS IN MALAYSIAN
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MAJOR CASES Apostasy and the Jurisd
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Preventive Detention The case of YB
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as an arbiter of political disputes
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an individual was guilty of defamat
Page 137 and 138:
Myanmar DEVELOPMENTS IN MYANMAR CON
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2007 when it fully drafted the Cons
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people’s fundamental rights and p
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From 1976 onwards, since the Europe
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concerned judicial construction and
Page 147 and 148:
Nigeria DEVELOPMENTS IN NIGERIAN CO
Page 149 and 150:
tional circumstances, the President
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the constitution to EFCC in the con
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political disagreement within this
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Right of boycott vs. right of estab
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Pakistan DEVELOPMENTS IN PAKISTANI
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Nonetheless, the Supreme Court, whi
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concerns in an agreement by Pakista
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ty of the government. This was desi
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The challenge to Poe’s citizenshi
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Poland DEVELOPMENTS IN POLISH CONST
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Poland imposed an obligation on the
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ances. Constitutional capture makes
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in a separate chapter, including th
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was a statistically high frequency
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Singapore DEVELOPMENTS IN SINGAPORE
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security is traditionally an area i
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Separation of Powers The principle
Page 183 and 184:
Slovakia DEVELOPMENTS IN SLOVAK CON
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ty or pardon will be ex officio aut
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stitutional complaints and of 80,6%
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as the source and the common expres
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is undisputable that in today’s s
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South Korea DEVELOPMENTS IN SOUTH K
Page 195 and 196:
Article 68 (1) of Constitutional Co
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tions within the Ministry of Nation
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at the constitutionality of its own
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pliance with the Constitution, warn
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Sweden DEVELOPMENTS IN SWEDISH CONS
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crime is not in congruence with Art
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In both cases, the HFD found that A
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suspended with the add-on counter-i
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Legislature than its predecessor. A
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Thailand DEVELOPMENTS IN THAI CONST
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cy decree. 19 If the law disproport
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junta’s control of upcoming gover
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most European Constitutional Courts
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explicit ban of Article 148 and dec
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United Kingdom DEVELOPMENTS IN UK C
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minster MPs from Northern Ireland,
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sents), the Supreme Court upheld bo
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Zambia DEVELOPMENTS IN ZAMBIAN CONS
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The most salient feature of such a
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The Rules provide for a full trial
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2016 Global Review of Constitutional Law

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