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

Gray, Anthony (2011) Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments. Australian Journal of Administrative Law, 18 (4). pp. 229-244. ISSN 1320-7105


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.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to published version due to publisher's copyright restrictions.
Faculty/School / Institute/Centre: Historic - Faculty of Business and Law - School of Law
Date Deposited: 22 Aug 2011 07:29
Last Modified: 25 Aug 2014 04:34
Uncontrolled Keywords: human rights, partial incorporation, just terms, jury, freedom of religion
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified

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