The material reflects the course outline and reading
materials for the course in 2010/2011
§ To what extent can or should the State intervene in
the life of an individual
§ What areas of an individual’s life be excluded from
State intervention
§ What is the rationale for State regulation of matters
concerning individuals
Secretary,
Department of Heath and Community Services v JWB and SMB Marion’s Case (1992) 175
CLR 218
O’Neill Sterilization of Children With
Intellectual Disabilities (1996) 2 Aust Jo of Human Rights
Re Kevin (2001) 28 Fam LR 158
Bellinger v Bellinger [2002]
1 All ER 311
Loving v Virginia 388 US 1
(1967)
Topic 2: Civil Liberties and the
Constitution
§ What role does the Commonwealth Constitution play in
guaranteeing civil liberties?
§ What express rights exist in the Constitution?
§ What implied rights exist in the Constitution?
§ Are these rights, rights that individuals may benefit
from?
Constitution –
ss.24, 41, 51(31), 80, 116, 117 and Chapter III generally
Bailey
P "Righting" the
Constitution without a Bill of Rights " (1995) Vol. 23 Federal
Law Review
Street v Queensland Bar
Association (1989) 168 CLR 461
South
Australia v Totani [2010]
HCA 39
Topic 2: Civil Liberties and the
Legislature
§ What legislative powers
does the Commonwealth Parliament have to protect civil liberties?
§ What legislative powers
does the New South Wales Parliament have to protect civil liberties?
§ How effective is
legislation as a means of protecting civil liberties?
§ How effective are statutory
bodies in protecting civil liberties
Constitution (Cth) – section 51
Constitution Act
(NSW)
Australian
Human Rights Commission Act (1986) (Cth)
Anti-Discrimination Act
1977 (NSW)
Topic 2: Common law – role of judges and
civil liberties
§ What is the fundamental
rights doctrine?
§ Does it exist in Australia?
§ What is the judge's role in
protecting civil liberties?
§ Is the common law an
appropriate legal vehicle to protect rights?
Dietrich v The Queen
(1992) 177 CLR 292
Kirby
"The Struggle for Simplicity
- Lord Cooke and Fundamental Rights"
New Zealand Legal Research Foundation 4‑5 April 1997
Topic 2: Civil
Liberties and the Executive
§ How do executive actions
impact on civil liberties?
§ What guidelines (either
legislative or otherwise) exist to guide administrative decision-makers?
§ How does transparency in
government relate to the protection of civil liberties?
§ How do the Commonwealth and
NSW administrative laws compare on the protection of civil liberties?
§ What impact does the High
Court’s decision in Teoh have on the protection of civil liberties?
Minister of State for
Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Topic
3: International
influences on Australian Civil Liberties
§ What are the relevant international legal protections
on civil liberties?
§ What is the relationship between international law and
Australian law?
§ How does the First Optional Protocol to the
International Covenant on Civil and Political Rights operate to protect
Australian civil liberties?
§ In Mabo
Justice Brennan said that international instruments could influence the
development of the common law – how is this done?
Mabo v Queensland (No. 2) (1992) 175
CLR 1 – Justice Brennan only
Kirby
- The Road From Bangalore The First Ten Years Of The Bangalore
Principles On The Domestic Application
Of International Human Rights Norms
International Covenant on
Civil and Political Rights (ICCPR)
First
Optional Protocol to the ICCPR (www.kateeastman.com/humanrights/humanrights.htm)
Toonen v Australia (1994)
Coleman v Australia Communication No
1157/2003, (10 August 2006)
Coleman
v Power [2004]
HCA 39
·
Have there
been any attempts to introduce a bill of rights in Australia?
·
Should a
bill of rights be constitutionally entrenched or an ordinary act of parliament?
·
Is a bill
of rights more democratic than leaving the question to the judges to determine
the content and scope of rights?
·
Should a
bill of rights refer to duties - should be duties be both positive and
negative?
·
Consider
the content of a bill of rights - what civil and political rights should be
included?
·
Would a
NSW Bill of Rights be effective?
Reading
See
generally http://www.aph.gov.au/library/intguide/law/billofrights.htm
Human
Rights Act 2004 (ACT)
Victorian
Charter of Rights and Responsibilities 2006 (Vic)
Williams, G, 'The Victorian Charter of Rights and
Responsibilities: Origins and Scope' (2007) 26 Melbourne University Law Review 880
·
What are the particular features of bills of rights or
charters of rights?
·
What rights are protected?
·
What types of remedies are provided for in the bills
of rights?
·
How are the rights enforced - judicial or
administrative procedures?
·
What are the differences between constitutional rights
and statutory rights?
Reading
Magna
Carta 1215
Bill of Rights
1689
Canadian Canadian Bill
of Rights Act, c44, 1960 and Canadian Charter of
Rights and Freedoms and related legislation
South Africa - Constitution of the Republic
of South Africa 1996
United States of America Bills of Rights
European Union Charter of
fundamental rights of the European Union
Ireland - Constitution.
Articles 40-44. Fundamental rights
New Zealand New
Zealand Bill of Rights Act 1990
United Kingdom - Human Rights Act 1998
India – Constitution
and Directive Principles
Topic 5: Equality and Sex Discrimination (Friday 17 December 2010)
§ What is the difference between formal and
substantive equality?
§ What model of equality law is used in most
Australian enactments?
§ What does direct discrimination mean?
§ What does indirect discrimination entail?
§ How are discrimination law enforced?
Sex Discrimination Act
1984 (Cth)
Topic 5: Equality and Disability Discrimination
§ What protections exist in relation to disability
discrimination?
§ What are the defences available in relation to
disability discrimination?
§ Are the enactments prohibiting disability
discrimination effective?
§ What other ways may the rights of the disabled be
protected
·
How do
Australian laws compare to the UK?
·
Does the
right to privacy include the right to protect one’s reputation, image or
personal information?
·
What are
permissible limitations on the enjoyment of a right to privacy?
Victoria Park Racing and
Recreational Grounds Club v Taylor (1937)
58 CLR 479
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 185 ALR 1,(2001) 76 ALJR 1
Tom Cruise and Nicole
Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125
UNSW Law Journal Volume 7, Number 1 - Valuing Privacy: Legal
Protections and Exceptions
ALRC
– Privacy Report (No. 108) - http://www.austlii.edu.au/au/other/alrc/publications/reports/108/
·
How does the Privacy Act
regulate the protection of privacy in Australia?
·
What information can be kept private?
·
What obligations are imposed on record handlers to protect data?
·
What are the national privacy principles (NPPs)?
·
Why does information technology pose a threat to privacy?
·
What is the role of the Privacy Commissioner - Federal and State?
Reading
Privacy Act 1988 (Cth)
Privacy and Personal
Information Protection Act 1998 (NSW)
·
What is a religion?
·
How does the Constitution protect or promote religion?
·
How does the common law protect religious rights?
·
To what extent can the State regulate an individual’s observance of
particular religious beliefs?
·
Are the any legal impediments to pursuing certain religious beliefs?
·
What is the law of blasphemy and is it relevant to contemporary
Australia?
HREOC Brief The Freedom of Religion
http://www.hreoc.gov.au/human_rights/religion/index.html
·
Is the right to assemble an individual right or group
right?
·
Does the enjoyment of the right to assemble and
protest depend on where the assembly is held?
·
How is the right to assemble regulated in New South
Wales?
·
What express guarantees of the right to assemble and
protest exist in the common law?
·
What are permissible restrictions on the right to
protest?
·
Is the requirement of “advance notice” inconsistent
with the right to assemble and protest?
Article 21 International Covenant on Civil and Political Rights
Watson v Trenerry (1998) 122 NTR 1; [1998]
NTSC 22
·
What is the content of the right to freely express
one’s views?
·
What type of “speech” is protected?
·
What constitutes symbolic speech?
·
Does the common law recognise a right to freedom of
expressions?
·
Why is freedom of speech considered a core civil
liberty?
·
What are legitimate limitations on the right to
freedom of expression?
Article 19 International Covenant on Civil and Political Rights
Coleman v Power [2004]
HCA 39
Coleman v Australia Communication No
1157/2003, (10 August 2006)
Stone
A Rights, Personal Rights And
Freedoms: The Nature Of The Freedom Of Political Communication
(2001) 25(2) MULR
·
How is hate speech regulated?
·
Should hate speech be regulated?
Article 20 - ICCPR
Article 4 - International Convention on the
Elimination of all Forms of Racial Discrimination CERD
Racial Hatred Act 1995
(Cth) see ss.18B – 18E of the Racial Discrimination Act 1975 (Cth)
Anti -Discrimination Act
1977 (NSW) ss.20B – 20C, ss.49ZS – 49ZX
See
related site on discrimination
·
To what extent can the internet be regulated?
·
Who determines appropriate content?
Gutnick v Dow Jones & Co
Inc
[2002]
HCA 56 ; 210 CLR 575
·
What is the source of the police officer’s power to detain a person?
·
In what circumstances do the police have the power to detain a person?
·
Do suspects have a right to silence when questioned by the police?
·
What safeguards exist in the common law to guarantee liberty and
security of the person?
Al-Kateb v
Godwin
[2004]
HCA 37; (2004) 208 ALR 124
Curtin, Juliet
(June 2005). "'Never
Say Never': Al-Kateb v Godwin". Sydney Law Review (Sydney Law School) 27 (2): 355–370
Fardon
v Attorney-General (Qld) [2004]
HCA 46; (2004) 223 CLR 575
Antunovic
v Dawson [2010] VSC 377
·
Do the provisions relating to a fair trial apply
to both criminal and civil proceedings?
·
What role does a jury play in guaranteeing a
right to a fair trial?
·
How effective in section 80 of the Constitution
in guaranteeing a right to a fair trial?
·
What are the elements that need to be present to
guarantee a fair trial?
·
What purpose do the rules of evidence serve in
guaranteeing a fair trial?
·
Is there a right to legal aid?
Reading
Dietrich v R (1992) 177 CLR 292
McInnis v R (1979) 143 CLR 575
·
What is Australia’s obligations to citizens
overseas
Hicks
v Ruddock
[2007] FCA 299
Habib
v Commonwealth of Australia [2010] FCAFC 12
Essay Questions –
December 2010/January 2011
Essays are due on Friday 28 January
2011 by 4pm.
Word limit – 5,000
Please select ONE question from the
following
1.
Does the Australian Constitution
provide any protection against arbitrary detention? Discuss by reference to decisions
of the High Court where the issue of detention and deprivation of liberty have
been in issue.
2.
Does Australia need a national bill of rights? Discuss with reference to
the existing Australian laws and the work of the National Human Rights
Consultation Committee.
3.
How does Australian law protect the
right of freedom of religion? Are the Australian legal protections sufficient?
4.
Examine Australian laws which
protect an individual’s privacy. Are those laws effective?
5.
Why is flag burning a civil
liberties issue? How have different countries approached the regulation of flag
burning, particularly in countries which have a bill of rights?
6.
When the Sex Discrimination Act 1984 (Cth) was enacted its object was to
eliminate discrimination on the ground of sex, marital status and pregnancy.
Has the Sex Discrimination Act been
effective in protecting women against unlawful discrimination and promoting
equality of opportunity? Discuss.
7.
When the Disability Discrimination Act 1992 (Cth) was enacted its object was
to eliminate discrimination on the ground of disability. Has the Disability Discrimination Act been
effective in protecting people with a disability against unlawful
discrimination and promoting equality of opportunity? Discuss.
8.
It has been said that the internet
and cyber-technology pose the greatest threat to civil liberties. Others say
that the internet and cyber-technology has created new opportunities for civil
liberties to develop. Discuss.
9.
An essay topic of your choice
approved by the lecturer.