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  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  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
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  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?
Human Rights Act 2004 (ACT)
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?
European Union Charter of fundamental rights of the European Union
New Zealand New Zealand Bill of Rights Act 1990
United Kingdom - Human Rights Act 1998
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?
Privacy Act 1988 (Cth)
· 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
· 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?
Watson v Trenerry (1998) 122 NTR 1;  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?
Coleman v Power  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?
· 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?
Antunovic v Dawson  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?
Dietrich v R (1992) 177 CLR 292
McInnis v R (1979) 143 CLR 575
· What is Australia’s obligations to citizens overseas
Habib v Commonwealth of Australia  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.