Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
Rights protection
Unlike other English-speaking democracies, Australia does not have a constitutional
or statutory bill of rights at the federal level. This omission was intentional.
With the exception of a few express protections, 58 Australia’s founding fathers
wanted to limit the ability of the courts to interfere with legislative decisions on
policy issues, such as, for example, the ability to discriminate on the basis of race
as reflected in the since abandoned White Australia policy. Further, the omission of
a bill of rights can be said not only to reflect a political decision as to where most
policy decisions should be made (the legislature) but also to provide an indication
of what type of rights are likely to be protected (those favoured by the voting
constituents, who were, at the time of Federation, predominantly white males). 59
Yet, despite the judgement at Federation that the legislature(s) was primarily
responsible for determining the type of rights that were worthy of protection
andthosethatmaybecompromisedforthegreatergood,decisionsoftheHigh
Court have nevertheless limited some of the choices available to the legislature.
As discussed, the High Court’s interpretation of the Constitution has meant that
Australian legislatures are unable to pass legislation that takes away the defining
and essential characteristics of the courts. Maintaining these characteristics – such
as the court’s ability to provide natural justice or procedural fairness – not only
protects the ongoing existence of the courts but also has a derivative effect in that it
helps ensure that when a claim is brought before a court, whether by the executive
against an individual or an individual against the executive, the individual receives
afairhearing(oratleastabaseleveloffairness).
The courts’ role in enforcing the rule of law and, in particular, ensuring that
theexecutivegovernmentcomplieswiththelawalsosawtheHighCourtatthe
beginning of the 21st century introduce a new implication derived from the
Constitution. 60 That implication was ‘an entrenched minimum provision of judicial
review’ over executive decision making. It effectively means that the legislature
is unable to pass legislation that prevents the courts from deciding whether the
executive has acted within the law. While the implication helps to ensure that
thecourtscontinuetooperateaspartofasystemofchecksandbalancesagainst
arbitrary power, it also has the derivative effect of providing a limited form of rights
protection. This protection is found in the fact that an individual will ordinarily
be able to challenge the legality of any executive decision that is made specifically
about them. However, it is a limited protection as the absence of a bill of rights
means the legislature can still pass laws that restrict an individual’s substantive
rights, making it more likely that adverse executive decisions will be lawful.
58 Such as sections 80, 92 and 116 of the Constitution.
59 Galligan and Morton 2017.
60 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (Plaintiff S157). This
implication was extended to state Supreme Courts in KirkvIndustrialCourtofNewSouthWales
(2010) 239 CLR 531.
178