Winterton, George --- "An Australian Rights Council" [2001] UNSWLawJl 64; (2001) 24(3) UNSW Law Journal 792
[*] Professor of Law,
University of New South
Wales.
[1] New South Wales Legislative Council Standing Committee on Law and Justice, A NSW Bill of Rights, Report No 17 (October 2001), especially ch 5.
[2] See, eg, Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J, Mason CJ and McHugh J concurring).
[3] Cf Human Rights Act 1998 (UK) s 4.
[4] Canadian Charter of Rights and Freedoms 1982 s 33.
[5] See Simpson v Attorney-General [1994] 3 NZLR 667 (CA) (‘Baigent’s Case’).
[6] See Australia Act 1986 (UK) s 6 and Australia Act 1986 (Cth) s 6; Winterton, below n 7.
[7] See George Winterton, ‘Can the Commonwealth Parliament Enact “Manner and Form” Legislation?’ (1980) 11 Federal Law Review 167, 182-9, 190-1, discussing (inter alia) R v Drybones [1970] SCR 282.
[8] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[9] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[10] For example, the draft statutory Bill of Rights circulated by the Hawke Government (Attorney-General Senator Gareth Evans) in 1984, as contrasted with the Australian Bill of Rights Bill 1985 (Cth) (introduced by Attorney-General Lionel Bowen), which would have applied only to Commonwealth legislation. See NSW Legislative Council Standing Committee on Law and Justice, above n 1, [3.10]-[3.11].
[11] NSW Legislative Council Standing Committee on Law and Justice, above n 1, xiii.
[12] Ibid xiv.
[13] Ibid ch 8.
[14] Harry Evans (ed), Odgers’ Australian Senate Practice (10th ed, 2001) 379.
[15] See Canadian Bill of Rights 1960 (Canada); Canadian Charter of Rights and Freedoms 1982; New Zealand Bill of Rights Act 1990 (NZ); Human Rights Act 1998 (UK).
[16] The Federal Constitutional Court (‘FCC’) comprises two ‘Senates’, each of eight judges. Half the members of each Senate are elected by each legislative House. The Lower House (Bundestag) elects FCC judges by a two-thirds majority of its 12 member Judicial Selection Committee, which is elected by proportional representation; the Upper House (Bundesrat) elects FCC judges by a two-thirds majority vote: Federal Constitutional Court Act 1951 (Germany) arts 2, 5-7 (as amended).
[17] Constitution of France art 61.
[18] Constitution of France art 62.
[19] Employing, respectively, United States and Australian terminology.
[20] Cf Constitution of the Unites States of America art I § 7(3) (overriding presidential veto).
[21] See Winterton, above n 7, 192.
[22] See ibid 191.
[23] A remote precedent already exists in the power of the Human Rights and Equal Opportunity Commission to examine proposed enactments, when requested to do so by the minister, to ascertain whether they ‘would be inconsistent with or contrary to any human right’, and report thereon to the minister: Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(e). See generally David Kinley, ‘Human Rights Scrutiny in Parliament: Westminster Set to Leap Ahead’ (1999) 10 Public Law Review 252, 253, referring also to the Human Rights Act 1993 (NZ) s 5(h)(iii).
[24] See, eg, NSW Legislative Council Standing Committee on Law and Justice, above n 1, [5.17].
[25] Cf ibid [5.23]-[5.31].
[1] New South Wales Legislative Council Standing Committee on Law and Justice, A NSW Bill of Rights, Report No 17 (October 2001), especially ch 5.
[2] See, eg, Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J, Mason CJ and McHugh J concurring).
[3] Cf Human Rights Act 1998 (UK) s 4.
[4] Canadian Charter of Rights and Freedoms 1982 s 33.
[5] See Simpson v Attorney-General [1994] 3 NZLR 667 (CA) (‘Baigent’s Case’).
[6] See Australia Act 1986 (UK) s 6 and Australia Act 1986 (Cth) s 6; Winterton, below n 7.
[7] See George Winterton, ‘Can the Commonwealth Parliament Enact “Manner and Form” Legislation?’ (1980) 11 Federal Law Review 167, 182-9, 190-1, discussing (inter alia) R v Drybones [1970] SCR 282.
[8] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[9] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[10] For example, the draft statutory Bill of Rights circulated by the Hawke Government (Attorney-General Senator Gareth Evans) in 1984, as contrasted with the Australian Bill of Rights Bill 1985 (Cth) (introduced by Attorney-General Lionel Bowen), which would have applied only to Commonwealth legislation. See NSW Legislative Council Standing Committee on Law and Justice, above n 1, [3.10]-[3.11].
[11] NSW Legislative Council Standing Committee on Law and Justice, above n 1, xiii.
[12] Ibid xiv.
[13] Ibid ch 8.
[14] Harry Evans (ed), Odgers’ Australian Senate Practice (10th ed, 2001) 379.
[15] See Canadian Bill of Rights 1960 (Canada); Canadian Charter of Rights and Freedoms 1982; New Zealand Bill of Rights Act 1990 (NZ); Human Rights Act 1998 (UK).
[16] The Federal Constitutional Court (‘FCC’) comprises two ‘Senates’, each of eight judges. Half the members of each Senate are elected by each legislative House. The Lower House (Bundestag) elects FCC judges by a two-thirds majority of its 12 member Judicial Selection Committee, which is elected by proportional representation; the Upper House (Bundesrat) elects FCC judges by a two-thirds majority vote: Federal Constitutional Court Act 1951 (Germany) arts 2, 5-7 (as amended).
[17] Constitution of France art 61.
[18] Constitution of France art 62.
[19] Employing, respectively, United States and Australian terminology.
[20] Cf Constitution of the Unites States of America art I § 7(3) (overriding presidential veto).
[21] See Winterton, above n 7, 192.
[22] See ibid 191.
[23] A remote precedent already exists in the power of the Human Rights and Equal Opportunity Commission to examine proposed enactments, when requested to do so by the minister, to ascertain whether they ‘would be inconsistent with or contrary to any human right’, and report thereon to the minister: Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(e). See generally David Kinley, ‘Human Rights Scrutiny in Parliament: Westminster Set to Leap Ahead’ (1999) 10 Public Law Review 252, 253, referring also to the Human Rights Act 1993 (NZ) s 5(h)(iii).
[24] See, eg, NSW Legislative Council Standing Committee on Law and Justice, above n 1, [5.17].
[25] Cf ibid [5.23]-[5.31].