Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments

Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments

This article considers the extent to which the limited express rights protections found in the Australian Constitution could be applied against State laws. It refers to the precedent of the United States, where most of the rights protections in the United States Bill of Rights were eventually extended to protect against State laws. It argues that rights such as the right to trial by jury, to fair compensation if property is taken, and to religious freedom, should as a matter of principle be applied to State laws, as well as to Federal laws. The High Court has in other contexts recognised the integrated nature of Australia's judicial system, and that s122 should be read consistently with other provisions of the Constitution, to avoid a fragmented position in territories as opposed to other parts of Australia. By analogy, rights in ss80, 51(31) and s116 might be extended to apply against State laws.

This article was first published by Thomson Reuters in the Australian Journal of Administrative Law and should be cited as Anthony Gray, Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments, (2011) 18 AJ Admin L 229. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.