10 Landmark Cases: How to Protect Rights Without a Bill of Rights

By Right Now
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Last month, Right Now focused on rights issues and cultural shifts. In this article, we look at 10 landmark cases that arguably shifted how rights are protected in Australia.

Australia has passed far too many legal milestones to canvass them all here. We’ve tried to provide a cross-section of cases that have had enduring legal significance for Australia’s rights landscape. Even then, we’ve left a lot out. Because the common law advances incrementally, we’ve generally tried to illustrate the legacy of these 10 landmark cases in the subsequent case law. Don’t be put off – this just means you’re getting more bang for your buck.


1.     The Separation of Powers 

The Separation of Powers maintains the separation between the three institutions of Australian statehood – the legislature, the executive and the judiciary. Probably the most controversial aspect of the doctrine has been the strong separation between legislative and executive powers on the one hand and judicial power on the other, a separation that emerged out of the 1956 case, R v Kirby; Ex parte Boilermakers’ Society of Australia.

Boilermakers did two things. First, it limited the exercise of judicial power to the judiciary. Second, it prohibited the judiciary from exercising any power but judicial power. A number of subsequent cases demonstrate how this has become a major player in rights litigation under the Constitution.

In Polyukhovich v Commonwealth (1991) the High Court held the doctrine prohibited laws that declared particular people or groups to be guilty of a criminal offence. Such laws, called Bills of Attainder, offended the Separation of Powers because they involved the legislative exercise of judicial power – effectively, “trial by legislature”. Parliament can create criminal offences; it is for the Courts to determine guilt. That hasn’t stopped very recent moves in Queensland trying something suspiciously similar, in order to deal with “Bikie” groups.

In Al-Kateb v Godwin (2004) the High Court declared valid provisions of the Migration Act that allowed the executive (the government) to indefinitely detain certain asylum seekers. It was settled law that only a Court could order punitive detention. By a 4 to 3 majority, however, the High Court held that immigration detention was “administrative” not “punitive” in nature and therefore permitted by the Separation of Powers.


2.     The Principle of Legality

It lacks the allure of a Bill of Rights, is unknown by the public it protects, and is not explained in much detail by the judges who use it. Yet, the “principle of legality” is an important method of rights protection in Australia.

Put simply it is an assumption by courts that parliament does not intend to overturn fundamental rights unless the words of its legislation make very clear that it does.

While there’s no ground-breaking case, in Australia the 1908 High Court case of Potter v Minahan is routinely referred to. Notable and more recent, the just-mentioned case of Al-Kateb v Godwin was the first in which the phrase “principle of legality” was used by an Australian High Court judge to describe this assumption. However, the “principle of legality” could not prevent the result in that case, as a majority of the High Court found that the Migration Act is clear enough that parliament intended through it to set up a system of potentially indefinite detention.

Importantly, then, the “principle of legality” requires only clarity, it does not make invalid a law seen as inconsistent with fundamental rights (in the way that the US Bill of Rights does). Nonetheless, the High Court strictly adheres to the assumption. That is because the “principle of legality” relates to both the separation of powers – as a Court cannot do the job of rights abrogation for the legislature – and representative democracy – as parliament must be clear enough for there to be political costs for its decisions.


3.     General Law Protections: Privacy

In the absence of a substantive Bill of Rights, rights protection in Australia is first and foremost a matter of actions available to us under legislation or the common law (the law developed by judges over centuries).

It is notorious, for example, that Australians have no general “right to privacy”. Yet, Australia’s international obligation to ensure protection of that right cannot be said to be unanswered (and the same is true for other areas, notably anti-discrimination legislation).

For example, the actions of breach of confidence, trespass and defamation, and the legislative actions related to (beneficial) copyright, surveillance devices, unconscionable conduct, misleading and deceptive conduct and indeed the Federal Privacy Act may be understood to cover some aspects of privacy. And for that reason there is no one landmark case to speak of. Of course, this doesn’t mean there aren’t specific and serious concerns in light of this patchwork approach. 


4.     Constitutional Rights: Religion, Juries, “Just Terms” and Judicial Review

The Australian Constitution, despite its clear absence of a US-style Bill of Rights, does include some explicit rights. There are rights to religious freedom (section 116), trial by jury (section 80) and compensation for acquisition of land by the state on “just terms” (section 51(xxxi); yes, like in The Castle).

To focus on one of the three, the concept of religious freedom noticeably lacks any developed explication in the judgments of courts. Rather, courts tend to decide potentially relevant cases by other means. The most recent example is the case of Williams v Commonwealth (2012), or the “School Chaplain’s case”. In it, the High Court focused on the complex Constitutional questions of the appropriation of money to pay for Chaplains in public schools, rather than freedom of and from religion. So far as it is clear how section 116 operates, however, the answer is very narrowly, as Professor Denise Meyerson has explained previously in Right Now (owing to the 1981 DOGS case).

Another area that can be understood to be a Constitutional right is the High Court’s ability to review the lawfulness of government action allegedly carried out under legislation (as opposed to the lawfulness of the legislation itself). Section 75 is the source of this right, and the inability of parliament to limit it was forcefully confirmed in the 2003 case of Plaintiff S157 v Commonwealth. This “protective” jurisdiction of the High Court is often invoked in important asylum seeker cases, including in the “Malaysia Solution case”(discussed below).


5.     Implicit Rights: Political Communication 

Added to the few explicit rights in the Australian Constitution are implicit ones. The rationale of these rights is that they are necessary to give effect to the Constitution.

To begin with, Australian law recognises that the Constitution necessarily protects “freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors”, as it was put in the 1997 High Court case of Lange v Australian Broadcasting Corporation. Five years earlier, in the 1992 case of ACTV v Commonwealth, a ban on political advertising during an election was struck down by the High Court on the basis of this newly recognised implicit right.

The central place of necessity is important. The freedom to receive and disseminate information concerning government or political matters is an implication drawn from the text and structure of the Constitution, and especially several sections (7, 24, 64 and 128) that entail the concept of  representative government. As a result, the freedom extends only so far as is necessary to give effect to those sections, which refer to elections and representatives “chosen by the people”.  In other words, a society in which representatives are “chosen by the people” cannot be meaningfully realised if the flow of the kinds of information that direct such a choice is barred by law. Any law that attempts to bar it will not be given effect by courts. While an important development, this reasoning process is not likely to lead to anything like comprehensive rights guarantees.


6.     Implicit Rights: Voting 

Similarly, an implicit (and again limited) “right to vote” has been recognised by the High Court in a line of cases, probably beginning with Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975). Essentially, these cases reveal that the Constitutional requirement that parliament be “chosen by the people” implies a minimum degree of protection for voting rights.

The 2007 case, Roach v Electoral Commissioner demonstrates the limited nature of this protection. The question before the Court was whether the Commonwealth Parliament could disenfranchise prisoners. The answer: if you are sentenced to three or more years in prison you cannot vote during that period. For more on the topic, Professor Graeme Orr has previously written for Right Now on prisoners and voting rights.


7.     Technical Interpretation & International Law 

Even where the Australian Constitution provides for explicit rights, their narrow interpretation (as in section 116) reveals a general preference by Australian Courts for formal or technical legal reasoning. However, technical interpretation is often put into the service of rights protection.

Plaintiff M70, or the “Malaysia Solution” case, is a good example. The High Court’s reasoning in the case is purely technical. It concerns a section of the notoriously Byzantine Migration Act that lists conditions under which a country can be declared one that asylum seekers may be taken to. The declaration of Malaysia as such a country was found to be unlawful as it didn’t meet these conditions, not because of some inherent Constitutional guarantee against the treatment of asylum seekers proposed. Incidentally, however, the Migration Act conditions did relate to human rights protections existing in Malaysia. For all the technicalities see this Right Now article explaining both the case and various amendments proposed since, that aim at slackening the conditions.

Somewhat differently, Courts will look to international human rights norms to interpret Australian law where terminology or concepts are borrowed from international law (as in the Migration Act, as suggested recently in the case of M47, the “ASIO case”) or more generally where words in legislation are ambiguous and international law may assist in deciding between two or more possible meanings. Yet, Courts cannot directly apply the norms, such as by holding a particular law to be invalid as it is inconsistent with international human rights law.


8.     Native Title

How to deal with Indigenous property rights that existed at the time of colonisation? The traditional view, articulated in Attorney-General v Brown (1847), was that with settlement the Crown had acquired full title over all the “waste lands of this Colony”. Mabo v Queensland (No 2) (1992) was the landmark High Court case that recognised that Australia wasn’t terra nullius at settlement: it was inhabited.

The Mabo court found the Crown hadn’t acquired full ownership, but what it called “radical title”. Radical title could mature into full title but, significantly, didn’t automatically extinguish Indigenous property rights to traditionally held lands. These rights are now known as Native Title.

The doctrine has been subject to some hefty statutory overhauls, some of these more revisionist than others. Bryan Keon-Cohen, counsel for Eddie Mabo and the Murray Islanders, reviews the losses and gains to Native Title in the 20 years since the Mabo case in this article for Right Now.


9.     The Race Power

In 1967 an overwhelming majority of Australian’s voted to amend section 51(xxvi) of the Constitution to allow the Commonwealth government to pass special laws with respect to persons of the aboriginal race. One question that arose for determination in Kartinyeri v Commonwealth (1998) was whether this section, the “race power”, permitted the making of laws that were detrimental, rather than beneficial, to persons of the aboriginal race.

The Court split 2 to 2 on the scope of the race power. Justices Gummow and Hayne held the power was inherently discriminatory and that laws made under it would inevitably benefit some just as they disadvantaged others. They did, however, leave open the possibility that the Court has a supervisory jurisdiction to police manifest abuse of the power.

Justice Gaudron focused on the requirement that the law be “necessary”. She held that only laws that were directed towards remedying disadvantage could, today, be deemed necessary for persons of the aboriginal race. Justice Kirby, on the other hand, held that the 1967 referendum had forever changed the meaning of section 51(xxvi) of the Constitution so that it permitted only positive discrimination.

The position of aboriginal people under the Australian Constitution remains uncertain.


10.  Marriage Equality?

In October 2013 the ACT’s Marriage Equality (Same Sex) Act 2013 passed into law. Marriages occurred from 8 until 12 December 2013, when the High Court unanimously held the law to be invalid for inconsistency with Federal marriage legislation. Ironically, the decision is arguably more significant as a step towards marriage equality than away from it.

Inconsistencies between state and federal laws are resolved, under section 109 of the Constitution, in the Commonwealth’s favour. So the issue, as the Court framed it, was this: “if the Federal Parliament can make a national law providing for same sex marriage, and has provided that the only form of marriage shall be between a man and a woman, the [state and Commonwealth] laws cannot operate concurrently.”

So why be heartened? In finding the two pieces of legislation to be inconsistent, the High Court held the Commonwealth Parliament has the power to pass laws permitting same-sex marriage. It had long been thought that a potential constitutional challenge to federal marriage equality legislation would be that the word “marriage”, as it appears in the Constitution, had the meaning it bore at Federation (no points for guessing what that might have been). No longer.

So while we’re stuck (for the moment) with the federal government’s marriage laws, we’re left with a more tolerant constitution. The rest is up to our elected representatives.


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