for further information visit www.thomsonreuters.com.au or send an email to care.anz@tr.com Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. For information concerning permission to republish material from this journal, either in part or in its entirety, in any medium, please refer to http://sites.thomsonreuters.com.au/ journals/permissions. For general permission queries, contact LTA.permissions@thomsonreuters.com 58 (2020) 31 PLR 58 Impairment and Limited State Immunity
{"title":"Impairment and Limited State Immunity","authors":"D. Tan","doi":"10.2139/ssrn.3676867","DOIUrl":"https://doi.org/10.2139/ssrn.3676867","url":null,"abstract":"for further information visit www.thomsonreuters.com.au or send an email to care.anz@tr.com Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. For information concerning permission to republish material from this journal, either in part or in its entirety, in any medium, please refer to http://sites.thomsonreuters.com.au/ journals/permissions. For general permission queries, contact LTA.permissions@thomsonreuters.com 58 (2020) 31 PLR 58 Impairment and Limited State Immunity","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"49 1","pages":"58-74"},"PeriodicalIF":0.4,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68621993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The question of creating an Australian head of state is a symbolic, constitutional and governance issue that remains unresolved. The lesson of the 1999 referendum is that for the current constitutional arrangements to be modified, there will need to be some consensus on a model. Yet at present the movement is deadlocked between a direct election model and a parliamentary appointment model with substantively different implications. There is therefore a great challenge to create a model that satisfies both the desire for popular electoral input and the desire to retain an essentially ceremonial and politically neutral non-executive head of state. After reviewing extant models (including relevant overseas models) and historical and conceptual issues, the problems of a full popular vote are discussed. The article then responds by introducing new concepts to the debate. These are: (1) “Tri-partisan Endorsement” (or “Three-way Support”) being a three party endorsement of a single candidate to face the voters along with any other nominees in an open popular election; (2) “Fifty-Fifty” being a method for appointment of an Australian head of state which involves aggregating the results of a parliamentary and a popular vote. The first seeks to achieve a politically neutral candidate while the second seeks to moderate the parliamentary vote for such head of state with a popular vote and vice-versa. The two concepts are separate but might also be utilised in combination in a single model. Finally, the article proposes a partial response to the unresolved “1975” dilemma through “Concurrent Expiration” where a head of state who removes a Prime Minister against the will of the House of Representatives will see the former’s own tenure expire 75 days after the holding of the ensuing election (subject to possible re-election). The article concludes that such concepts offer hope for the development of a judicious consensus model capable of achieving the support of the Australian people at a referendum.
{"title":"Parliamentary Appointment or Popular Election? Breaking the Impasse on Models for an Australian 'Westminster Republic'","authors":"M. Duffy, S. Perryman, Anthony Cianflone","doi":"10.2139/SSRN.3292563","DOIUrl":"https://doi.org/10.2139/SSRN.3292563","url":null,"abstract":"The question of creating an Australian head of state is a symbolic, constitutional and governance issue that remains unresolved. The lesson of the 1999 referendum is that for the current constitutional arrangements to be modified, there will need to be some consensus on a model. Yet at present the movement is deadlocked between a direct election model and a parliamentary appointment model with substantively different implications. There is therefore a great challenge to create a model that satisfies both the desire for popular electoral input and the desire to retain an essentially ceremonial and politically neutral non-executive head of state. After reviewing extant models (including relevant overseas models) and historical and conceptual issues, the problems of a full popular vote are discussed. The article then responds by introducing new concepts to the debate. These are: (1) “Tri-partisan Endorsement” (or “Three-way Support”) being a three party endorsement of a single candidate to face the voters along with any other nominees in an open popular election; (2) “Fifty-Fifty” being a method for appointment of an Australian head of state which involves aggregating the results of a parliamentary and a popular vote. The first seeks to achieve a politically neutral candidate while the second seeks to moderate the parliamentary vote for such head of state with a popular vote and vice-versa. The two concepts are separate but might also be utilised in combination in a single model. Finally, the article proposes a partial response to the unresolved “1975” dilemma through “Concurrent Expiration” where a head of state who removes a Prime Minister against the will of the House of Representatives will see the former’s own tenure expire 75 days after the holding of the ensuing election (subject to possible re-election). The article concludes that such concepts offer hope for the development of a judicious consensus model capable of achieving the support of the Australian people at a referendum.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"29 1","pages":"147-172"},"PeriodicalIF":0.4,"publicationDate":"2018-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48265397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Constitution of the Environmental Emergency","authors":"B. Richardson","doi":"10.5040/9781509920303","DOIUrl":"https://doi.org/10.5040/9781509920303","url":null,"abstract":"The Constitution of the Environmental Emergency , by Jocelyn Stacey, Hart, Oxford, 2018, 273 pages: ISBN 9781509920273.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"29 1","pages":"351-355"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70537189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police misconduct, and most other remedies for misconduct, promote change by making misconduct costly for police departments and municipalities. Improving federal remedies would encourage some additional departments to seek the positive expected return on reform measures likely to reduce misconduct. But existing federal remedies all focus on either increasing the cost of misconduct or reducing its benefits. The problem is that even if existing federal remedies are altered to maximize deterrence, they cannot be employed to impose a substantially greater price for misconduct because, by their nature, the costs imposed by existing remedies are relatively fixed. As a result, federal remedies for misconduct will never prevent bad policing much more than they do now. While existing federal remedies are constrained in their capacity to deter much more than they do, there are alternative means of inspiring reform. Most notably, federal actors could foster reform by lowering the costs of adopting policies that prevent misconduct and by shoring up rewards for police chiefs and departments that pursue reform. Some Justice Department programs already likely modify the expected costs of reform, but the Department of Justice’s undertakings appear both piecemeal and limited. Although discouraging police misconduct by reducing the costs of reform and increasing its benefits poses some risks, the limits of existing federal remedies suggest these risks may be well worth taking.
{"title":"Limited Leverage: Federal Remedies and Policing Reform","authors":"Rachel Harmon","doi":"10.2139/SSRN.2292135","DOIUrl":"https://doi.org/10.2139/SSRN.2292135","url":null,"abstract":"With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police misconduct, and most other remedies for misconduct, promote change by making misconduct costly for police departments and municipalities. Improving federal remedies would encourage some additional departments to seek the positive expected return on reform measures likely to reduce misconduct. But existing federal remedies all focus on either increasing the cost of misconduct or reducing its benefits. The problem is that even if existing federal remedies are altered to maximize deterrence, they cannot be employed to impose a substantially greater price for misconduct because, by their nature, the costs imposed by existing remedies are relatively fixed. As a result, federal remedies for misconduct will never prevent bad policing much more than they do now. While existing federal remedies are constrained in their capacity to deter much more than they do, there are alternative means of inspiring reform. Most notably, federal actors could foster reform by lowering the costs of adopting policies that prevent misconduct and by shoring up rewards for police chiefs and departments that pursue reform. Some Justice Department programs already likely modify the expected costs of reform, but the Department of Justice’s undertakings appear both piecemeal and limited. Although discouraging police misconduct by reducing the costs of reform and increasing its benefits poses some risks, the limits of existing federal remedies suggest these risks may be well worth taking.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"32 1","pages":"6"},"PeriodicalIF":0.4,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68069305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Rowe v Electoral Commissioner, the Australian High Court struck down an early cut-off date for voter registration. This commentary situates the decision in the history of the electoral writ and roll closure, and parses the various judgments from an election law perspective. The Court’s decision is not a radical one, but an example of the recent flowering of constitutionalism in electoral law, since the Court recognised an implied universal suffrage in the Australian Constitution. The case represents, like the prisoner voting case of Roach before it, an example of constitutional ratcheting, informed by an underlying conceit that the court is merely protecting against legislative back-sliding, rather than offering a litigational sword to those who want to expand the franchise and political rights.
{"title":"The Voting Rights Ratchet: Rowe v. Electoral Commissioner","authors":"Graeme Orr","doi":"10.2139/SSRN.1926493","DOIUrl":"https://doi.org/10.2139/SSRN.1926493","url":null,"abstract":"In Rowe v Electoral Commissioner, the Australian High Court struck down an early cut-off date for voter registration. This commentary situates the decision in the history of the electoral writ and roll closure, and parses the various judgments from an election law perspective. The Court’s decision is not a radical one, but an example of the recent flowering of constitutionalism in electoral law, since the Court recognised an implied universal suffrage in the Australian Constitution. The case represents, like the prisoner voting case of Roach before it, an example of constitutional ratcheting, informed by an underlying conceit that the court is merely protecting against legislative back-sliding, rather than offering a litigational sword to those who want to expand the franchise and political rights.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"30 1","pages":"83-89"},"PeriodicalIF":0.4,"publicationDate":"2011-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67793421","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When monopoly control over the flow of information is lost, the unavoidable consequence is destabilization. Information flow through a society can be understood as a market - not a market exchanging cash for goods, but loyalty for identity. Hence the market is called the Market for Loyalties - so labeled by an economics of information theory first developed by Prof. Monroe Price, of Cardozo Law School, and Director of the Howard M. Squadron Program in Law, Media and Society, to explain government regulation of radio, TV, cable and satellite broadcasting. In post-invasion Iraq, Saddam Hussein lost or monopoly control over the information market, where loyalty and identity were exchanged. The consequence was the plummeting of loyalty that the former regime could command in exchange for its marketed form of identity. The result of the sudden opening of the market is chaotic and violent. New suppliers of identity hawk wares so potent, that the consumer's loyalty extends to martyrdom in the form of suicide bombing (all for a few moments of temporal fame, and bright prospects of rewards in eternity). The current market for loyalties in Iraq is complicated by an additional characteristic - the impact of tribal structures to limit the number of effective buyers in the marketplace. Tribes function as brokers, restricting, the presence of competing buyers and functioning as resellers of identity in the marketplace. The dilemma for the United States is what to do about the new information market in Iraq - to clamp down and re-exert monopoly control, to stand back, laissez-faire-like, and let the market take its natural course, or to somehow manage the slide to equilibrium by carefully eliminating barriers and engineering the emergence of competitors in the market. This article will first present the theoretical underpinning of the market for loyalties in terms of neoclassical economics, emphasizing the importance of identity in this market. In so doing it will apply the theory to understanding many of the instabilities in Iraq and the Middle East. Second, the article suggests implications of the market for loyalties for U.S. policy. The article concludes that despite consideration of tribal intermediation of the information market, which must and can be addressed, US policy is not to win Iraqi loyalty by promulgating its own particular message of identity, but the creation and maintenance of an open and pluralistic market for loyalties within Iraq's information environment. In such a market, diverse identities are sufficiently numerous to insulate the market from potential disruption caused by provocative messages hawked by radical and violent groups. In essence, this Article presents an argument for freedom of speech and information flow based upon market for loyalties theory.
当对信息流的垄断控制丧失时，不可避免的后果是不稳定。信息在社会中的流动可以被理解为一个市场——不是一个用现金交换商品的市场，而是一个用忠诚交换身份的市场。因此，这个市场被称为“忠诚市场”——这是由卡多佐法学院的门罗·普莱斯教授(Howard M. Squadron法律、媒体与社会项目主任)首先提出的信息经济学理论所赋予的标签，该理论旨在解释政府对广播、电视、有线电视和卫星广播的监管。在入侵伊拉克后，萨达姆•侯赛因(Saddam Hussein)失去了或垄断了对信息市场的控制，在这个市场上，忠诚和身份是相互交换的。其结果是，前政权以其市场形式的身份换取的忠诚度直线下降。市场突然开放的结果是混乱和暴力。新的身份供应商兜售的商品如此强大，以至于消费者的忠诚延伸到以自杀式爆炸的形式殉道(所有这些都是为了短暂的名声，以及永恒回报的光明前景)。伊拉克目前的忠诚市场由于另一个特点而变得复杂——部落结构的影响限制了市场上有效买家的数量。部落就像经纪人一样，限制竞争买家的存在，并在市场中充当身份的转售者。美国面临的两难境地是如何对待伊拉克的新信息市场——是压制并重新施加垄断控制，还是袖手旁观，放任自由，让市场顺其自然，还是通过小心翼翼地消除障碍，设计市场竞争者的出现，以某种方式管理滑向平衡。本文将首先从新古典经济学的角度阐述忠诚市场的理论基础，强调身份在这个市场中的重要性。这样一来，它将把这一理论应用于理解伊拉克和中东的许多不稳定因素。其次，文章提出了市场对美国政策忠诚度的影响。这篇文章的结论是，尽管考虑到资讯市场的部落中介，但美国的政策不是透过宣扬自己独特的身分讯息来赢得伊拉克人的忠诚，而是在伊拉克资讯环境中创造并维持一个开放多元的忠诚市场。在这样一个市场中，多元化的身份足以使市场免受激进和暴力团体兜售的挑衅性信息所造成的潜在破坏。从本质上讲，本文提出了一种基于忠诚市场理论的言论自由和信息自由的论证。
{"title":"Identity and Market for Loyalties Theories: The Case for Free Information Flow in Insurgent Iraq","authors":"P. Callister","doi":"10.31228/osf.io/5gqf2","DOIUrl":"https://doi.org/10.31228/osf.io/5gqf2","url":null,"abstract":"When monopoly control over the flow of information is lost, the unavoidable consequence is destabilization. Information flow through a society can be understood as a market - not a market exchanging cash for goods, but loyalty for identity. Hence the market is called the Market for Loyalties - so labeled by an economics of information theory first developed by Prof. Monroe Price, of Cardozo Law School, and Director of the Howard M. Squadron Program in Law, Media and Society, to explain government regulation of radio, TV, cable and satellite broadcasting. In post-invasion Iraq, Saddam Hussein lost or monopoly control over the information market, where loyalty and identity were exchanged. The consequence was the plummeting of loyalty that the former regime could command in exchange for its marketed form of identity. The result of the sudden opening of the market is chaotic and violent. New suppliers of identity hawk wares so potent, that the consumer's loyalty extends to martyrdom in the form of suicide bombing (all for a few moments of temporal fame, and bright prospects of rewards in eternity). The current market for loyalties in Iraq is complicated by an additional characteristic - the impact of tribal structures to limit the number of effective buyers in the marketplace. Tribes function as brokers, restricting, the presence of competing buyers and functioning as resellers of identity in the marketplace. The dilemma for the United States is what to do about the new information market in Iraq - to clamp down and re-exert monopoly control, to stand back, laissez-faire-like, and let the market take its natural course, or to somehow manage the slide to equilibrium by carefully eliminating barriers and engineering the emergence of competitors in the market. This article will first present the theoretical underpinning of the market for loyalties in terms of neoclassical economics, emphasizing the importance of identity in this market. In so doing it will apply the theory to understanding many of the instabilities in Iraq and the Middle East. Second, the article suggests implications of the market for loyalties for U.S. policy. The article concludes that despite consideration of tribal intermediation of the information market, which must and can be addressed, US policy is not to win Iraqi loyalty by promulgating its own particular message of identity, but the creation and maintenance of an open and pluralistic market for loyalties within Iraq's information environment. In such a market, diverse identities are sufficiently numerous to insulate the market from potential disruption caused by provocative messages hawked by radical and violent groups. In essence, this Article presents an argument for freedom of speech and information flow based upon market for loyalties theory.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"25 1","pages":"7"},"PeriodicalIF":0.4,"publicationDate":"2005-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2004-08-03DOI: 10.1017/CBO9780511609800.017
Anthony C. Infanti
In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian issues in tax and as a signpost pointing in the direction of the next front in the battle for gay rights.
{"title":"Tax Protest, A Homosexual, and Frivolity: A Deconstructionist Meditation","authors":"Anthony C. Infanti","doi":"10.1017/CBO9780511609800.017","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.017","url":null,"abstract":"In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian issues in tax and as a signpost pointing in the direction of the next front in the battle for gay rights.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"24 1","pages":"6"},"PeriodicalIF":0.4,"publicationDate":"2004-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57078329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article looks at the significance of a recent trio of High Court decisions for the status of the principle established in Kable v Director of Public Prosecutions (NSW). The Kable principle as it has come to be understood will be outlined and also why it has attracted criticism and generated controversy in some quarters. The analysis undertaken will demonstrate that the High Court has secured its status in Australian constitutional law. It will however be suggested that the more significant legacy of the Kable principle after these cases is to secure a fuller integration of the Australian judicial system and outline what this may entail for the operation of constitutional doctrine, in particular the emerging due process principle.
{"title":"The Status of the Kable Principle in Australian Constitutional Law","authors":"D. Meagher","doi":"10.2139/SSRN.2631411","DOIUrl":"https://doi.org/10.2139/SSRN.2631411","url":null,"abstract":"This article looks at the significance of a recent trio of High Court decisions for the status of the principle established in Kable v Director of Public Prosecutions (NSW). The Kable principle as it has come to be understood will be outlined and also why it has attracted criticism and generated controversy in some quarters. The analysis undertaken will demonstrate that the High Court has secured its status in Australian constitutional law. It will however be suggested that the more significant legacy of the Kable principle after these cases is to secure a fuller integration of the Australian judicial system and outline what this may entail for the operation of constitutional doctrine, in particular the emerging due process principle.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"16 1","pages":"182-187"},"PeriodicalIF":0.4,"publicationDate":"2004-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to them. Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. It involves vesting Chapter III courts with the power to measure Commonwealth laws against the International Covenant of Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.
{"title":"Back to the Future: The War on Terror and its Impact on Civil Liberties","authors":"D. Meagher","doi":"10.2139/SSRN.2631409","DOIUrl":"https://doi.org/10.2139/SSRN.2631409","url":null,"abstract":"This article looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to them. Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. It involves vesting Chapter III courts with the power to measure Commonwealth laws against the International Covenant of Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.","PeriodicalId":43092,"journal":{"name":"Public Law Review","volume":"15 1","pages":"177-182"},"PeriodicalIF":0.4,"publicationDate":"2004-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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